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Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses.

  • Matteo Bonelli and Monica Claes
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Abstract
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PhD researcher, Faculty of Law, Maastricht University.

**

Professor of European and Comparative Constitutional Law, Faculty of Law, Maastricht University.

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1 ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses.

2 On the Court of Justice and the Portuguese Constitutional Court’s case law on austerity, see infra. See also ECtHR Second Section, 8 October 2013, Application Nos. 62235/12 and 57725/12, António Augusto Da Conceição Mateus v Portugal and Lino Jesus Santos Januário v Portugal, in which the ECtHR held that, in light of the exceptional economic and financial crisis faced by Portugal at the material time and given the limited extent and the temporary effect of the reduction of their holiday and Christmas subsidies (only valid for one year, because they were established in a State Budget Law), the applicants did not bear a disproportionate and excessive burden, and therefore found the applications inadmissible.

3 As proved by the fact that only the Commission and Portugal intervened in the case.

4 As explained in the following pages, this was also the approach followed by AG Øe in his Opinion.

5 ECJ 6 March 2018, Case C-284/16, Achmea.

6 The first Memorandum was signed on 17 May 2011: see Memorandum of Understanding on Specific Economic Policy Conditionality between the Portuguese State and the European Commission, available at <www.portugal.gov.pt/media/371369/mou_20110517.pdf>, visited 31 July 2018.

7 See also Council Implementing Decision 344/2011. As prescribed by Art. 136(3) TFEU, EU financial assistance is dependent on strict economic policy conditionality.

8 For an overview of the decisions of the Portuguese courts, see Canotilho, M. et al., ‘Austerity measures under judicial scrutiny: the Portuguese constitutional case-law’, 11 EuConst (2016) p. 155 ; Guerra Martins, A.M., ‘Constitutional Judge, Social Rights and Public Debt Crisis – The Portuguese Constitutional Case Law, 22(5) Maastricht Journal of European and Comparative Law (2015) p. 678 ; Pereira Coutinho, F., ‘Austerity on the loose in Portugal: European judicial restraint in times of crisis’, 8(3) Perspectives on Federalism (2016).

9 Critical on the Portuguese Constitutional Court’s approach: Coutinho, supra n. 8; on the other hand, defending the position of the Court in which she served during the ‘austerity case law’, Guerra Martins, supra n. 8.

10 ECJ 7 March 2013, Case C-128/12, Sindicato dos Bancários do Norte and Others v BPN - Banco Português de Negócios SA; see also ECJ 26 June 2014, Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial – Companhia de Seguros SA; ECJ 21 October 2014, Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa – Companhia de Seguros SA. See also the Romanian cases: ECJ 14 December 2011, Case C-434/11, Corpul Naţional al Poliţiştilor v Ministerul Administraţiei şi Internelor (MAI) and Others; ECJ 10 May 2012, Case C-134/12, Corpul Naţional al Poliţiştilor Ministerul Administraţiei şi Internelor and Others; ECJ 15 November 2012, Case C-369/12, Corpul Naţional al Poliţiştilor – Biroul Executiv Central, reprezentant al reclamanţilor Chiţea Constantin şi alţii v Ministerul Administraţiei şi Internelor and Others.

11 For a critical analysis of the Court’s approach, see generally Kilpatrick, C., ‘On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’, 35(2) Oxford Journal of Legal Studies (2015) p. 325 ; Poulou, A., ‘Financial Assistance Conditionality and Human Rights Protection: What is the Role of the European Charter of Fundamental Rights’, 54(4) Common Market Law Review (2017) p. 991 .

12 See Portuguese Constitutional Court, 5 July 2012, Decision 353/2012

13 See Portuguese Constitutional Court, 5 April 2013, Decision 187/2013; and Portuguese Constitutional Court, 30 May 2014, Decision 413/2014.

14 See Portuguese Constitutional Court, 14 August 2014, Decision 575/2014.

15 Although the court did not specify the cases to which it was referring, it does however seem that it was referring to general principles of EU law, see paras 14-15.

16 ECJ 13 June 2017, Case C-258/14, Florescu.

17 Under Art. 267 TFEU, the Court has jurisdiction to ‘give preliminary rulings concerning… (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’ (emphasis added).

18 See Council Regulation 332/2002 establishing a facility providing medium-term financial assistance for Member States’ balances of payment.

19 Florescu, supra n. 16, paras. 35-36.

20 Ibid., para. 48.

21 Ibid., para. 48. Moreover, both the wording and the intent of the legislature in adopting the measures implementing the Memorandum were clear: see also the Opinion of AG Bot, paras. 65 and 66.

22 Florescu, supra n. 16, para. 48.

23 The Court did in any case conclude that there had been no breach of Art. 17 of the Charter in the case: see para 60.

24 See Markakis, M. and Dermine, P., ‘Bailouts, the legal status of Memoranda of Understanding, and the scope of application of the EU Charter: Florescu’, 55 Common Market Law Review (2018) p. 662 .

25 For the latter two instruments, however, a potentially important difference is that they are formally situated outside the EU legal framework. This contribution does not aim to tackle the question of whether ESM and EFSF Memoranda of Understanding qualify as acts of EU institutions.

26 As suggested by Bot in Florescu, the AG reaches this conclusion on the basis of the wording and the terms of the measures of EU law: see paras. 48 and 52 of the Opinion.

27 As asked by Markakis and Dermine, supra n. 24, p. 661.

28 For a critical analysis of the Court’s approach in this respect, see Pereira Coutinho, F, ‘Associação Sindical dos Juízes Portugueses: judicial independence and austerity measures at the Court of Justice’, 2 Quaderni costituzionali (2018) p. 510511 .

29 On this second aspect, see the final section of this paper.

30 See infra.

31 See e.g. Komarek, J., ‘National constitutional courts in the European constitutional democracy’, 12(3) International Journal of Constitutional Law (2014) p. 525 .

32 ASJP, supra n. 1, para. 21.

33 ASJP, supra n. 1, para. 25.

34 It should be noted that that hearing took place before the decision in Florescu, i.e. before the change of orientation of the Court on the matter.

35 The arguments are summarised in the Opinion of the AG, para. 37.

36 See in particular Art. 5(1)(h) of Law 98/97 on the organisation and procedure of the Court of Auditors and Art. 214 of the Portuguese Constitution.

37 ASJP, supra n. 1, para. 14. For a list of relevant EU measures, see para. 4 of the AG Opinion.

38 ASJP, supra n. 1, para. 28.

39 ECJ 23 February 2013, Case C-617/10, Åkerberg Fransson, para. 21.

40 Confirmed recently for example in ECJ 16 May 2017, Case C-682/15, Berlioz, para. 49: ‘the Court has consistently held that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter’.

41 Lenaerts, K. and Gutiérrez-Fons, A., ‘The Place of the Charter in the EU Constitutional Edifice’, in S. Peers et al. (eds.), The EU Charter of Fundamental Rights. A Commentary (Hart 2013).

42 ASJP, supra n. 1, para. 29.

43 The AG had proposed a similar interpretation of Art. 19 TEU as the Court, rejecting the positions of the Portuguese Government and the Commission claiming that the Court’s jurisdiction on Art. 19 TEU was limited in the same way as it was for Art. 47 Charter.

44 ASJP, supra n. 1, para. 40.

45 For a different conclusion, see Pirker, B., ‘Mapping the Scope of Application of EU Fundamental Rights: A Typology’, 3 European Papers (2018) p. 156 , arguing that ‘EU fundamental rights also apply in the particular situation defined in Associacao Sindical dos Juizes Portugueses’. The author reaches the conclusion on the basis of para. 35 of the judgment, in which the Court, as will be discussed below, describes effective judicial protection as a ‘general principle of EU law’, deriving from common constitutional traditions and the ECHR and confirmed by Art. 47 of the Charter. It is not entirely clear whether the author believes that fundamental rights of the Charter are applicable or ‘only’ fundamental rights as general principles of EU law (see Art. 6 TEU). Irrespective of this, the reasoning is not convincing as the Court does not assess Portuguese measures on the basis of fundamental rights, but only on the basis of Art. 19 TEU, which is considered the source of the principle of judicial independence in EU law.

46 Of course, the Charter is also part of ‘EU law’. What is meant here is the application of EU law triggering the application of the Charter, often referred to as ‘substantive EU rules’ or ‘triggering rules’. On the concept of ‘triggering rule’ for the application of the Charter, see Sarmiento, D., ‘Who’s afraid of the Charter? The Court of Justice, National Courts and the new Framework of Fundamental Rights Protection in Europe’, 50(5) Common Market Law Review (2013) p. 1267 .

47 European Commission, Rule of Law: European Commission acts to defend judicial independence in Poland, Press release of 20 December 2017, IP/17/5367; see also Case C-192/18, Commission v Poland, pending.

48 The first issue is, on the other hand, covered by EU law, more specifically the Equal Treatment Directive.

49 ASJP, supra n. 1, para. 30.

50 ASJP, supra n. 1, para. 31.

51 Ibid., para. 35.

52 Ibid., para. 37.

53 To be discussed infra.

54 ASJP, supra n. 1, para. 38: it might seem that in this paragraph the court is explaining the requirements of effective judicial protection, but actually those factors are related to something quite different, namely the factors to be considered for a body to be qualified as a court or tribunal.

55 ASJP, supra n. 1, para. 41.

56 But see para. 46, where the Court – all of a sudden – stated that the measures had been adopted in the context of an EU programme and because of ‘mandatory requirements’, thus suggesting that the circumstances of the case brought it within the ‘normal’ scope of EU law, thus triggering application of the Charter.

57 ASJP, supra n. 1, para. 30.

58 K. Lenaerts, ‘The Court of Justice and national courts: a dialogue based on mutual trust and judicial independence’, Speech at the Supreme Administrative Court of the Republic of Poland, Warsaw, 19 March 2018, available at <www.nsa.gov.pl/download.php?id=753&mod=m/11/pliki_edit.php>, visited 31 July 2018.

59 For a critical assessment of the EU’s promotion of judicial independence during the Eastern Enlargement, see Bobek, M. and Kosař, D., ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’, 15(7) German Law Journal (2014) p. 171 .

60 It features as a key rule of law principle in the Commission Rule of Law Framework, for example: see European Commission, A new EU Framework to strengthen the Rule of Law, Brussels, 19 March 2014, COM(2014) 158final/2, and in particular Annex I; and has been mentioned several times in the Commission Recommendations under it, as well as in the Reasoned Proposal on the activation of Article 7 against Poland.: see e.g. European Commission, Recommendation regarding the Rule of Law in Poland, Brussels, 27 July 2016, Doc. C(2016) 5703 final; and European Commission, Reasoned Proposal in accordance with Article 7(1) of the Treaty on European Union regarding the Rule of Law in Poland – 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, Doc COM(2017) 835 final.

61 ECJ 19 September 2006, Case C-506/04, Wilson.

62 ECJ 16 February 2017, Case C-503/15, Margarit Panicello.

63 See ASJP, supra n. 1, para. 44: ‘the concept of independence presupposes, in particular, that the body concerned exercised its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinate to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions’

64 Ibid., para. 45.

65 Ibid., para. 47.

66 Ibid., para. 48.

67 Ibid., para. 50.

68 For an overview: W. Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’, Legal Studies Research Paper No. 18/01 (2018); Pech, L. and Scheppele, K.L., ‘Illiberalism Within: Rule of Law Backsliding in the EU’, 19 Cambridge Yearbook of Legal Studies (2017) p. 3 .

69 For a detailed discussion of the amendments, see European Commission, Reasoned Proposal in accordance with Article 7(1) TEU of the Treaty on European Union regarding the Rule of Law in Poland – 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, Doc. COM (2017) 835 final, and Venice Commission, Opinion 904/2017 on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court, Proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, Strasbourg, 11 December 2017, Doc. CDL-AD(2017)031

70 Reasoned Proposal, supra n. 69.

71 See European Commission, supra n. 69 and Venice Commission, supra n. 69. The Polish Parliament has, however, in the meantime approved some further amendments to the system: the decision of the Minister now requires confirmation from the National Council of the Judiciary.

72 European Commission, Press Release: Rule of Law: Commission launches infringement procedure to protect the independence of the Polish Supreme Court, Brussels, 2 July 2018, Doc IP/18/4341.

73 See ASJP, supra n. 1, para. 41, where the Court refers back to Art. 47 of the Charter of Fundamental Rights in order to give substance to the principle of judicial independence.

74 See e.g. Venice Commission, Opinion 663/2012 on ACT CLXII of 2011 on the legal status and remuneration of judges and Act CLXI of 2011 on the organization and administration of courts in Hungary, Strasbourg, 19 March 2012 (CDL-AD(2012)001). On the relationship between the two provisions, see in more detail M. Kraiewski, ’Associação Sindical dos Juízes Portugueses: The Court of Justice and Athena’s Dilemma’, 3 European Papers (2018) p. 395.

75 ECJ 4 February 1999, C-103/97, Köllensperger and Atzwanger. In this case, the Court of Justice concluded that the Tyrol’s Procurement Office was an independent body despite the fact that the law governing its composition and function provided rather vague guarantees on the member’s tenure and dismissal.

76 ECJ 21 March 2000, C-110/98, Gabalfrisa. The independence of the Spanish tribunals reviewing decisions of tax authorities was considered sufficient regardless of the fact that Minister for Economic Affairs could directly appoint or dismiss the members of the tribunals, in view of the fact that there was a separation of functions between the ministers and the tribunals.

77 Tridimas, T., ‘Knocking’s on Heaven’s door: Fragmentation, Efficiency and Defiance in The Preliminary Reference Procedure’, 40 Common Market Law Review (2003) p. 30 . See also Broberg, M., ‘Preliminary References by Public Administrative Bodies’, 15 European Public Law (2009) p. 221 For a critique of the Court’s case law, inspired by Art. 6 ECHR and the Strasbourg’s jurisprudence: see AG Colomer’s Opinion in ECJ 29 November 2001, C-17/00, François De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort.

78 See also Tridimas, supra n. 77.

79 For two examples, see ECJ 6 October 1981, C-246/80, Broeckmeulen, in which ‘a certain degree of governmental supervision’ was no obstacle for a preliminary reference; and ECJ 17 July 2014, Joined Cases C-58/13 and C-59/13, Torresi.

80 See Wilson, supra n. 61, para 52: ‘The second aspect, which is internal, is linked to impartiality’ (emphasis added).

81 See again the decision in ECJ 21 March 2000, C-110/98, Gabalfrisa in which, despite the fact that the Minister could directly appoint or dismiss the members of the tribunals, the Court still held the tribunal to be independent.

82 For an implicit message, see ECJ 20 November 2017, Case C-441/17 R, Commission v Poland, para. 102: in allowing, for the first time in history, the imposition of pecuniary sanctions in case of non-compliance with interim measures, the Court made reference to the principle of the rule of law. Even in Hungary it could only intervene in infringement actions that were narrowly framed: see ECJ 6 November 2012, Case C-286/12, Commission v Hungary; and ECJ 8 April 2014, Case C-288/12, Commission v Hungary.

83 C‑216/18 PPU, Minister for Justice and Equality v LM, pending.

84 More precisely, the Irish Court is asking whether the Aranyosi and Caldararu test (see ECJ 26 April 2016, Joined Cases C-404/15 and C-659/15 PPU) is applicable in the Polish context. This would require the Irish High Court to make an individual assessment of the specific situation of the individual. See High Court of Ireland, 23 March 2018, The Minister for Justice and Equality and Artur Celmer [2018] IEHC 153.

85 See Opinion of AG Tanchev in ECJ 28 June 2018, Case C-216/18 PPU, LM.

86 See e.g. Scheppele, K.L., ‘Enforcing the basic principles of EU law through systemic infringement actions’, in C. Closa and D. Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016).

87 See Art. 269 TFEU.

88 Also suggested by the decision in ECJ 20 September 2016, Cases C-8/15 to C-10/95, Ledra.

89 The Court refers to paras. 33 and 34 of AFSJ, supra n. 1.

90 Court of Justice’s Judge von Danwitz underlined in a recent speech that the interpretation given in the Portuguese case is ‘the first substantive interpretation’ of Art. 19 TEU: see T. von Danwitz: ‘Values and the rule of law: Foundations of the European Union – an inside perspective from the ECJ’, Lecture held at King’s College London, 2 March 2018, available at <www.kcl.ac.uk/law/research/centres/european/KingsCollege-London-TVD-k-def-Verteilung.pdf>, visited 31 July 2018. By way of example, Michal Bobek’s chapter on the domestic application of EU law in a leading textbook devotes only a few lines on to the second subparagraph of Art. 19(1) TEU, see Bobek, M., ‘The effects of EU law in the national legal systems’, in C. Barnard and S. Peers, European Union Law, 2nd edn (Oxford University Press 2018).

91 See generally Claes, M., The National Courts’ Mandate in the European Constitution (Hart 2006).

* PhD researcher, Faculty of Law, Maastricht University.

** Professor of European and Comparative Constitutional Law, Faculty of Law, Maastricht University.

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