The Reaction of the European Judges

Rebus sic stantibus, the European bodies that do not have a political mandate and do not follow political guidelines have attracted new attention. This is true for monitoring neutral institutions, such as the Venice Commission, and it is especially true for the judges who are the guarantors of the division of competences between the European Union and the Member States.

Recently, the problem of retirement age of judges was presented again to the ECJ in cases concerning Poland.^[354] On the basis of a recourse of the European Commission, the Court decided that the bringing forward of the retirement age of the judges of the Supreme Court of Poland had infringed the European constitutional principles concerning judicial independence. The measure was considered to be an arbitrary interference in the function­ing of the judiciary. The Polish legislator had made a choice lacking in any coherence or objectivity. The interested judges could avoid the curtailment of their mandate by asking the President of the Republic for an extension of their terms. The power of the President looked completely discretional in the absence of legislative criteria for its exercise. Moreover, no guarantee was offered by the provision that required the President to ask the advice of a special body of the Supreme Court. This body does not appear neutral and independent, as its members are appointed by the National Council of the Judiciary, whose members are elected by the parliament and are not independent of the legislative power.

Therefore, the ECJ concluded that Poland ‘has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU'. The censure regarded both the bringing forward of the retirement age of judges of the Supreme Court and the discretion of the President of the Republic ‘to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age'. The ECJ reiterated this approach in three cases involving a preliminary ruling requested by the Supreme Court of Poland.^[355] The European judge stated again that the independence of the courts forms part of the essence of the personal human right to effective judicial protection. In particular, the ECJ reiterated the negative evaluation that the modalities of the formation of the Polish National Council of the Judiciary do not guarantee the independence of this body or the judges governed by it.^[356]

If we compare the conclusions of the ECJ with Article 19(1) and (2) TEU, it is evident that the yardstick of judgment adopted by the Court has a richer content than that provision.

The Court considered certainty and stability of the retirement age of judges as an essential factor for the safeguarding of the independence of the judiciary. Moreover, the judgment stated that the bodies entrusted with the administration of the judicial personnel have to be independent from the other powers of the state. The independence of these bodies is guaranteed if a majority of their members are elected by the judges themselves. The rele­vant legislation has to restrain the discretion of the governing bodies of the judiciary. These statements enrich the content of Article 19(1) and (2), which obliges the Member State to ‘provide[] remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Even if we read this provision in connection with the guarantee of the rule of law stated in Article 2 TEU, we do not find an explicit statement of the principles identified by the ECJ. Therefore, the European Commission has correctly recognised that the ascertain­ing of ‘the core meaning of the rule of law' depends on the case law of the European Courts and on the ‘documents drawn up by the Council of Europe, building notably on the exper­tise of the European Commission for Democracy through Law (‘Venice Commission)’^[357] The Opinions of the Venice Commission are frequently quoted in the texts of the judgments of the ECJ and in the conclusions of the Advocates General concerning Poland. The European judges as well as the governing bodies of the EU recognise the contribution of the Venice Commission to the formation of international/transnational constitutional law. A similar attitude with regard to the Venice Commission was taken by the European Parliament when it asked the Council to determine the existence of a clear risk of a serious breach by Hungary of the values on which the EU is founded.^[358] If we compare the initial meaning given by the interpreters to the yardstick of the European constitutional heritage with the results of the described interpretative process, we cannot help but recognise that today the yardstick looks enriched and articulate.

IV.