Judicial avenues to fortify EU militancy: Emerging tendencies

Increasingly authoritarian regimes in Hungary and Poland have managed to dismantle most of Article 2 TEU protected values, including democracy itself, heavily relying on, to borrow from Weiler, ‘democratic majoritarian decisions’.^[227] However, the Com­mission has long insisted that Article 2 TEU values were not legally enforceable, so its

Thinking outside the politics box 89 infringement actions against Hungary and Poland were grounded in other EU pri­mary and secondary law provisions and tied to the material scope of the acquis⁸ The Commission’s approach had tied the CJEU’s hands a considerable degree as it was forced to deliver judgments on narrow grounds defined in the Commission’s applica­tions.^[228] [229] In the meantime, many have questioned Article 2’s alleged legal non-enfor- cement, arguing that no such limitation existed in the Treaties,^[230] and that in cases of serious violations, its legal enforcement would justify imposing Article 7 TEU political sanctions.^[231] While the cases against Hungary have not yet risen above mentioned, piecemeal level,^[232] two recently decided Polish cases, both connected with court­packing, mirror a possible shift in the Commission’s approach and shed light on a promising novel approach to already existing judicial avenues for enforcing Article 2 TEU values - infringement actions and a preliminary ruling.^[233]

Note that in both cases, the claim, the preliminary references and consequently the CJEU’s judgments were constructed in the rule of law terms rather than the democracy term itself.

4.1 Enforcing EU democratic values through infringement proceedings

One of the techniques the populist governments use to bypass checks and bal­ances, an essential device against abuse of power, is court-packing. As democracy is not reduced to the elections and majority rule but also entails judicial review established to preclude tyranny, the court-packing to obtain favourable rulings is a

clear threat to democracy. Some courts, like the Romanian Constitutional Court, effectively defended itself, admittedly, after the European Commission warned the government that the judicial reform was on the wrong track.⁸ However, the courts in Hungary and Poland did not manage to sustain the populist attacks and were soon packed by illiberal forces.

The CJEU ruled on court-packing cases in Hungary and Poland, but it turned really militant only in the Polish case. The Polish case has finally clarified that among the judicial toolkits to protect Article 2 TEU values, including democracy itself, infringement proceedings, initiated before the CJEU either by the Com­mission or a Member State, for a failure to comply with EU law (Articles 258-259 TFEU), are the most effective.

Nevertheless, this argument is not without its own problems. Activating infringement proceedings in cases concerning democratic backsliding in a Member State may appear disputable on two grounds: first, like in Article 7 TEU cases, one may assert that infringement proceedings can be used only when Member States implement EU law, and not to deal with purely domestic situa­tions such as democratic backsliding in a Member State; and second, it is possi­ble to argue that Article 7 TEU application precludes the institution of infringement proceedings. In what can be described as revolutionary decisions, the CJEU resolved both dilemmas.

As to the first issue, in the Portuguese Judges case that does not concern democratic backsliding but remuneration of judges under domestic rules, the CJEU ruled that the requirements of judicial independence and effective imple­mentation of EU law by national courts under Article 19 (1) subpar.

Advocate General Tanchev responded to the second problem in the same Polish case.^[239] The fact that Article 7 TEU is activated to combat a Member State’s serious and persistent breach of Article 2 TEU values does not preclude a judicial action to enforce the application of EU law by the Member States, concluded the Advocate General, suggesting that the proceedings are complementary and may be applied in

Thinking outside the politics box 91 parallel.^[240] The CJEU did not refer to the relationship between Article 258 TFEU and Article 7 TEU procedures in the judgment, but it reviewed the Supreme Court­packing, and thus confirmed what the Advocate General suggested. Hence, a long- debated issue on whether the EU responses to populist capture in the Member States are reduced to the political sanctions mechanism under Article 7 TEU, or some legal instruments could also turn the Union militant, has been resolved.^[241] This point has broad implications for how EU militant democracy should be understood.

That being said, in Commission v. Poland (Independence of the Supreme Court), the CJEU announced that it would step in to confront democratic back­sliding in the Member States on the grounds of the jurisdiction it has under Arti­cle 258 TFEU infringement procedures.

Facts first.

first, by lowering the retirement age of the judges appointed to the Sad Naj- wyzszy (Supreme Court) and by applying that measure to the judges in post appointed to that court [... ] and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.^[242]

Clearly, the case involved the organisation of justice in the Member State, falling within the Member States' competence, and not the EU scope of competences in any way.

The CJEU went militant even before it decided the case. Upon the Commis­sion’s application, it granted an interim measure and requested Poland to suspend the disputable legislation, revive the former law, and make its provisions applicable until its final judgment.^[243] The interim measure was effective, and the President of the Supreme Court ordered the retired judges back to work solely based on the order of the CJEU.^[244] The Court also militantly defended its jurisdiction: it con­firmed that the organisation of justice is the Member States’ competence. But it added that when the Member States exercise this competence, they must comply with their obligations deriving from the EU law, and therefore the CJEU review was justified.^[245]

What were these obligations in the present case? Relying heavily on the Portu­guese Judges case, the CJEU approached the court-packing issue from the Article 2 TEU perspective and human rights concerns, particularly the right to an effec­tive remedy and a fair trial entrenched in the Charter. The CJEU repeated that the rule of law is protected under Article 2 TEU and that its essential tenant is judicial independence.^[246] As the Polish Supreme Court is also an EU court and may come into position to rule on questions concerning the application or interpretation of EU law, the CJEU recalls that maintaining its independence is vital, notwith­standing whether or not potential cases involve the application and interpretation of Union law.^[247] In this vein, judicial independence, the CJEU underlines, requires, inter alia, guarantees against removal from office, which are not absolute but subject to limitations under the principle of proportionality in each particular case.^[248] [249] [250] Applying these requirements to the facts of the case, the CJEU found that the Polish law that forced the judges to retire at the lower age than envisaged in the former law, unless they were granted an extension by the President, violated the principle of judicial independence and irremovability of judges.¹ Accord­ingly, the CJEU ruled that court-packing violated the rule of law principle under Article 2 TEU.

Compared with the previously decided Hungarian court-packing case, there is an obvious twist in the Polish case. Although deciding on identical facts, the CJEU’s earlier decision in the Hungarian case did not manage to bring any change to the troubling attempts of the Hungarian government to adjust the organisation of justice to its political needs. The case involved a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62.¹ The Commission tailored the action for failure to fulfil obligations on narrow grounds - age discrimination prohibited under Directive 2000/78/EC.^[251] [252] As it did not insist on a larger point - a serious breach of Article 2 TEU values, as it did in the Polish case - the CJEU delivered the ruling on the narrow grounds and confirmed the breach, but its effects were rather modest: the judgement did not restore judicial independence in Hungary; the ruling populists got the judges they wanted.¹ The Commission learned their lesson, and in the Polish case approached identical facts differently. Admittedly, the CJEU, in the meantime, delivered a decision in the Portuguese Judges case, which paved the way for the Commission to argue the case from the EU fundamental values per­spective rather than the perspective of EU secondary law.

Thinking outside the politics box 93

The Polish case confirms the fact that in democratic backsliding cases, timing also matters. In the pre-litigation procedure, Poland was given the one-month deadline to reply to a letter of formal notice and, subsequently, to the reasoned opinion, which was twice as short as usual.^[253] Additionally, upon the Commis­sion request, the CJEU decided the case under the expedited procedure: the judgment that stopped court-packing for illiberal democracy purposes was delivered in just eight months.^[254] Having in mind that the Court’s interim measure also proved useful, it is not hard to conclude that the infringement proceedings before the CJEU were more effective in confronting the ruling populists in Poland than were the EU political institutions acting under Article 7 TEU - the sanction procedure is still pending in the Council.

The CJEU’s approach in the Polish Supreme Court-packing case illuminates potentials of the infringement proceedings in enforcing Article 2 values, which, to remind us, was drafted on the belief that the values, including democracy, are and will be shared by all Member States.

Building a systemic approach on breaches of Article 2 values, including democracy, would not be an entirely novel approach in the Court’s practice. In environmental cases, the Commission has used it successfully: for example, in the Waste Directive case against Ireland, it used a selective number of infiin- gement cases to argue that they illustrate breaches of a more general nature, which the CJEU accepted, and found Ireland to be in ‘general and persistent breach’ of the Waste Directive.^[259] Similarly, a systemic approach could be used to pursue serious violations by the Member States in cases concerning different modalities of democratic backsliding. The presence of the CJEU’s finding that a Member State has systemically and persistently violated democratic values would strengthen the legitimacy of Article 7 TEU proceedings and make it more effective.

4.2 Enforcing EU democratic values through preliminary rulings

Another judicial tool at hand to fight populism in the Union is the preliminary ruling proceedings (Article 267 TFEU), although the current developments signal they are prima facie less suitable than the infringement proceedings. However, there are many complexities connected with preliminary rulings. Recall first that the CJEU does not decide a case in the preliminary ruling proceedings, but upon a reference from a national court, it rules on the point of either interpretation or validity of EU law relevant for the dispute.^{1 2} As the proceedings are not initiated by any EU institutions but by national courts, and the CJEU is not empowered to invalidate a national law, enforcement of democratic values through preliminary rulings to confront threats to domestic democracy may appear feeble. However, recall also that the Court’s preliminary rulings, which represent an authoritative interpretation of EU law, are generally binding, i.e., have erga omnes effects.^[260] [261] Consequently, preliminary rulings appear to be the most efficient EU law enfor­cement measure against the Member States^[262] and crucial for maintaining Eur­opean integrations, as the application of direct effect and supremacy doctrines, developed within the proceedings, clearly indicates. In reality, the CJEU used the first opportunity to send a strong message against populist court-packing in Poland through its preliminary ruling. Consider its novel approach in the A.K. and Others case.^[263]

To increase its impact on the justice system, after targeting the Constitutional Court and the Supreme Court, Poland’s ruling populists extended a packing plan to the National Council of the Judiciary (the body responsible for judicial appointments, the NCJ) and the Disciplinary Chamber of the Supreme Court.^[264] Under the 2017 reform law, the NCJ was staffed entirely by members either elected or appointed by the ruling party (out of 25 members, 23 were chosen by politicians).^[265] Thus, the ruling populists created yet another ‘executive’ body. The NCJ soon participated in the packing of the Disciplinary Chamber of the Supreme Court, mostly with the regime supporters.^[266]

The disputes that gave rise to the CJEU preliminary ruling involved the NCJ’s rejection of granting term extensions to three judges (two Supreme Court judges and a judge of the Supreme Administrative Court). Their retirement age was lowered under the 2017 Supreme Court Act, which earlier, in the 2018

Thinking outside the politics box 95 infringement case mentioned above, was found to violate EU law.^[267] [268] [269] The Polish government did amend the Act in response to the CJEU interim measure, but it was never repealed ex tunc. Anyhow, under its provisions, before granting consent for term extension in each particular case, the President of the Republic should have obtained an opinion of the NCJ. The said law also created the Disciplinary Chamber of the Supreme Court and envisaged its exclusive jurisdic­tion in case of disputes.^[270] In the cases concerned, the judges brought separate actions before the Labour and Social Insurance Chamber of the Polish Supreme Court, because the Disciplinary Chamber was not yet formed, asserting that the opinions of the NCJ, unfavourable to them, inter alia, violated judicial indepen­dence guarantees under Article 19 (1) TEU, Article 47 of the Charter, and Article 9 (1) of 2000/78 Directive prohibiting age discrimination.^[271]

Concerned by the ‘independence’ of the Disciplinary Chamber, to which the cases should have been referred, the Labour and Social Insurance Chamber of the Polish Supreme Court submitted three requests for a preliminary ruling, asking the CJEU to interpret the guarantees of judicial independence and a general framework for equal treatment in employment and occupation. The CJEU joined the requests, and in A.K. and Others set out standards of judicial independence in the Union and took a revolutionary approach to implement EU law in the Member States.

The CJEU built a preliminary ruling on its previous ruling in the infringement case, confirming that the Member States were required to comply with the obli­gations deriving from EU law, even though the organisation of justice in the Member States falls within their competences.^[272] It then recalled that Article 47 of the Charter safeguards the fundamental right to an effective remedy that encom­passes everyone's right to a fair hearing by an independent and impartial tribu- nal.^[273] The CJEU interpreted the requirements of independence and impartiality relying heavily on the related European Court of Human Rights jurisprudence,^[274] but did not miss the opportunity to underline that the independence and impartiality are essential components of the rule of law, protected as the EU identity value in Article 2 TEU and shared by the Member States.^[275] Having said that, it warned that the separation of the powers principle and justice in a democratic society imply two major requests: (a) that the body involved in the procedure for the appointment of judges must be independent from the legis­lature and the executive; and (b) that the courts in exercising their jurisdictions

must be protected from any direct or indirect influence liable to have an effect on their decisions.^[276]

In what followed, the CJEU left it to the referring Polish court to determine whether the Disciplinary Chamber met the criteria of an independent and impar­tial tribunal. Nonetheless, it hinted that the Disciplinary Chamber’s composition, circumstances of its creation and the scope of its jurisdiction, when taken together, could confirm concerns regarding its independence and impartiality.^[277] As Bog- danowicz rightly notes, this is not what the CJEU usually do in the preliminary ruling procedure, as it leaves a final decision to be made by the referring court.^[278] This time, it determined the outcome of the proceedings before the referring national court by taking the position regarding criteria it should use to examine whether the NCJ was an independent and impartial tribunal and whether such qualifications possessed a judicial body whose judges were appointed with the participation of the NCJ.^[279]

There is another CJEU intervention in the case that sheds light on its potential to turn the Union militant. For the first time, the Court used the principle of the primacy of EU law as a militant tool to confront the erosion of domestic democ­racy. Starting from the premise that the principle requires all Member State bodies to give the full effect of the EU law, it ruled that Article 47 of the Charter and Article 9 (1) of Directive 2000/78/EC must be interpreted as ‘precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal’.^[280] Consequently, any provision of a domestic law that grants jurisdiction to a court not meeting the requirements of independence and impartiality must be disregarded, and jurisdic­tion given to the court, which qualifies as an independent and impartial tribu- nal.^[281] As this was a preliminary ruling and not the infringement case, it was, in the end, the Polish Supreme Court that found that the Disciplinary Chamber was not an independent and impartial tribunal and, therefore, could not be regarded as a court within the meaning of EU law.^[282]

The further developments indicate that the CJEU’s preliminary ruling pushed the EU to use the Court in its full capacity to preclude illiberal threats to domestic democracy. The ultimate effects of the CJEU’s preliminary ruling in A.K. and Others implied obedience of any court in Poland, as each of them might come into a situation to implement EU law. The populists reacted and, in December 2019, adopted new legislation, known as the ‘Muzzle Law’, prohibiting courts to

Thinking outside the politics box 97 question judicial appointments and penalising judges who find, applying the A.K. and Others test, a domestic court not independent.^[283] Poland’s open opposition to EU law made the Commission request interim measures in the infringement case referred to the Court in October 2019, in which the CJEU was asked to suspend the functioning of the Disciplinary Chamber of the Supreme Court.^{[284] 6} The CJEU granted interim measures pending its final judgment, concluding that the func­tioning of the Disciplinary Chamber ‘is likely to cause serious and irreparable harm to the EU legal order’. The Commission also initiated a new infringement proceeding against Poland that is still pending, on the grounds that the ‘Muzzle Law’ undermines the judicial independence of Polish judges, is incompatible with the primacy of EU law, prevents Polish courts from directly applying EU law, and from requesting preliminary rulings on the questions regarding judicial independence.^[285] [286]

Undoubtedly, a strong declaration on judicial independence and the CJEU’s more or less direct intervention in A.K. and Others stand as a powerful rejoinder to those who considered the preliminary ruling procedure only a mechanism to obtain from the CJEU advice on how to interpret EU law in a concrete case. A.K. and Others illustrates that the advising time has passed, at least in cases when threats to domestic democracy may seriously undermine the EU legal order.

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