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Published online by Cambridge University Press: 12 April 2021
Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary
I would like to thank the anonymous reviewers for their critical and clear insights. Furthermore, I am grateful to Dr. Thomas Vandamme, Amsterdam Centre for European Law & Governance, for his tireless support and helpful comments throughout the writing process.
1 See, for instance, Commission, ‘Further strengthening the Rule of Law within the Union State of play and possible next steps’ (Communication) COM(2019) 163 final.
2 Commission, ‘Rule of Law: European Commission acts to defend judicial independence in Poland’ (Press Release) (Brussels, 20 December 2017) ⟨ec.europa.eu/commission/presscorner/detail/en/IP_17_5367⟩, visited 15 March 2021.
3 European Parliament, ‘Rule of Law in Hungary: Parliament calls on the EU to act’ (Press Release) (Brussels, 12 September 2018) ⟨www.europarl.europa.eu/news/en/press-room/20180906IPR12104/rule-of-law-inhungary-parliament-calls-on-the-eu-to-act⟩, visited 15 March 2021.
4 ECJ 24 June 2019, Case C-619/18, Commission v Poland (Indépendance de la Cour suprême), EU:C:2019:531.
5 ECJ 27 February 2018, Case C-64/16, ASJP, EU:C:2018:117.
6 M. Bonelli and M. Claes, ‘Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary’, 14 EuConst (2018) p. 622 at p. 634.
7 After ECJ 17 September 1997, Case C-54/96 Dorsch Consult Ingenieursgesellschaft v Bundesbaugesellschaft Berlin, EU:C:1997:413. NB: some authors use the term ‘Vaassen criteria’.
8 ASJP, supra n. 5, para. 23.
9 ECJ 19 September 2006, Case C-506/04, Wilson, EU:C:2006:587.
10 ECJ 21 January 2020, Case C-274/14, Banco de Santander SA, EU:C:2020:17.
11 Dorsch Consult, supra n. 7.
12 Referring to ‘a number of factors’ that are taken into account, these criteria are neither cumulative nor exhaustive: ibid., para. 23.
13 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) ⟨www.nsa.gov.pl/download.php?id=753&mod=m/11/pliki_edit.php⟩, visited 15 March 2021, p 4. One might furthermore wonder whether this statement is entirely correct, looking at the decision of the Danish supreme court in AJOS or the recent stand-off between the ECJ and the German Federal Constitutional Court in its PPSP judgment. For an analysis, see S. Klinge, ‘Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle’, EU Law Analysis, 13 December 2016, ⟨eulawanalysis.blogspot.com/2016/12/dialogue-or-disobedience-between.html⟩, visited 15 March 2021; P. Eleftheriadis, ‘Germany’s Failing Court’, Verfassungsblog, 18 May 2020, ⟨verfassungsblog.de/germanys-failing-court/⟩, visited 15 March 2021.
14 ECJ 11 June 1987, Case 14/86, Pretore di Salò, EU:C:1987:275.
15 ECJ 30 March 1993, Case C-24/92, Corbiau, EU:C:1993:118.
16 Pretore di Salò, supra n. 14, para. 7.
17 Opinion of AG Darmon in ECJ 30 March 1993, C-24/92 Corbiau, EU:C:1993:59, para. 10.
18 See in that sense ECJ 16 December 2008, Case C-210/06, Cartesio, EU:C:2008:723.
19 Corbiau, supra n. 15.
20 Ibid., para. 15.
21 ECJ 12 December 1996, Joined Cases C-74/95 and C-129/95, Criminal Proceedings against X, EU:C:1996:491.
22 Dorsch Consult, supra n. 7, para. 35; Opinion of AG Ruiz-Jarabo Colomer in ECJ 29 November 2001, Case C-17/00, de Coster, EU:C:2001:366, paras. 21-22.
23 ECJ 4 February 1999, Case C-103/97, Köllensperger and Atzwanger, EU:C:1999:52. The Tyrol’s Procurement Office was deemed independent even though the national guarantees on the member’s tenure and dismissal were rather vague.
24 ECJ 21 March 2000, Case C-110/98 Gabalfrisa, EU:C:2000:145. The Spanish tribunals reviewing decisions of tax authorities were deemed independent even though the Minister of Economic Affairs could directly appoint or dismiss the members of the tribunals. This was justified by relying on the separation of functions between the ministers and the tribunals.
25 AG Ruiz-Jarabo Colomer especially criticised this approach. In his opinion on de Coster, he militated for guarantees of independence by means of ‘provisions which establish, clearly and precisely, the reasons for the withdrawal, rejection and dismissal of its members’: Opinion of AG Ruiz-Jarabo Colomer in de Coster, supra n. 22, paras. 24-25. See also Bonelli and Claes, supra n. 6, p. 638.
26 Bonelli and Claes, supra n. 6, p. 638.
27 Ibid.; Opinion of AG Ruiz-Jarabo Colomer in de Coster, supra n. 22, para. 63.
28 Wilson, supra n. 9.
29 See the references made in Wilson, supra n. 9, paras. 51 and 53.
30 Ibid., para. 52.
31 Ibid., para. 51.
32 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland, supra n. 13, p. 5.
33 Wilson, supra n. 9, para. 53.
34 Ibid. Also, guarantees against removal from office are required for members of the judiciary: ECJ 22 October 1998, Joined Cases C-9/97 and C-118/97, Jokela and Pitkäranta, EU:C:1998:497, para. 20.
35 Wilson, supra n. 9, para. 44.
36 Ibid., para. 48. AG Wahl writes that ‘the Court “borrowed” the principles developed under Article 267 TFEU’: Opinion of AG Wahl in ECJ 17 July 2014, Case C-58/13, Torresi, EU:C:2014:265, para. 32.
37 Bonelli and Claes, supra n. 6, p. 639.
38 See for instance ECJ 22 December 2010, Case C-517/09, RTL Belgium, EU:C:2010:821, para. 37 ff and ECJ 16 February 2017, Case C-503/15, Margarit Panicello, EU:C:2017:126, para. 37 ff.
39 In addition to Poland and Hungary, Romania and Bulgaria also face difficulties upholding the Rule of Law. For an overview see Commission, ‘Report on progress in Bulgaria under the Cooperation and Verification Mechanism’ COM(2018) 850 final; Commission, ‘Report on progress in Romania under the Cooperation and Verification Mechanism’ COM(2018) 851 final.
40 Commission Recommendation (EU) 2018/103 of 20 December 2017 regarding the Rule of Law in Poland complementary to Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 [2018] OJ L17/50.
41 ASJP, supra n. 5.
42 Commission v Poland, supra n. 4.
43 See for instance: ECJ 7 March 2013, Case C-128/12, Sindicato dos Bancários do Norte and Others v BPN – Banco Português de Negócios SA, EU:C:2013:149 and ECJ 26 June 2014, Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial – Companhia de Seguros SA, EU:C:2014:2036; Bonelli and Claes, supra n. 6, p. 622, 624-625.
44 ECJ 6 November 2012, Case C-286/12, Commission v Hungary, EU:C:2012:687. In this case, Hungary had lowered the retirement age of judges. Rather than addressing the lowering of the retirement age as a threat to the independence of the Hungarian judges, the Court took the view that the measures constituted a breach of the EU age discrimination provisions.
45 ECJ 16 July 2020, Case C-658/18, UX v Governo della Repubblica italiana, EU:C:2020:572. In this case, a giudice di pace (magistrate) challenged an Italian law which provided that the payments received by magistrates are linked to the work carried out. Consequently, during her annual leave, the magistrate did not receive any payment, whereas ordinary judges are entitled to 30 days’ paid leave. The Court found that the Italian legislation infringed the principle of non-discrimination.
46 Bonelli and Claes, supra n. 6, p. 628.
47 The actual analysis of the national measures at stake was straightforward and uncontroversial: the specific outcome of the case was clearly of less interest to the Court than setting out the lines for the concept of judicial independence and the European judiciary: ibid., p. 635.
48 For an overview see L. Pech and K. Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, 19 Cambridge Yearbook of European Legal Studies (2017) p. 3; W. Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’, 18/01 Legal Studies Research Paper (2018) ⟨papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491⟩, visited 15 March 2021.
49 For an extensive commentary of the judgment, see P. Bogdanowicz and M. Taborowski, ‘How to Save a Supreme Court in a Rule of Law Crisis: the Polish Experience ECJ (Grand Chamber) 24 June 2019, Case C-619/18, European Commission v Republic of Poland’, 16 EuConst (2020) p. 306.
50 Commission v Poland, supra n. 4, para. 49.
51 Ibid., para. 46.
52 Ibid., paras. 47, 54. See, to that effect: ECJ 3 October 2013, C-583/11 P, Inuit Tapiriit Kanatami and Others v Parliament and Council, EU:C:2013:625, paras. 100-101; ECJ 28 April 2015, C-456/13 P, T & L Sugars and Sidul Açúcares v Commission, EU:C:2015:284, para. 50; ECJ 14 June 2017, C-685/15, Online Games and Others, EU:C:2017:452, para. 54; ASJP, supra n. 5, para. 34; ECJ 25 July 2018, Case C-216/18 PPU, Minister for Justice and Equality v LM, EU:C:2018:586, para. 50.
53 Commission v Poland, supra n. 4, para. 55.
54 Ibid., para. 56.
55 Ibid., para. 58.
56 ASJP, supra n. 5, para. 29; Commission v Poland, supra n. 4, para. 50.
57 Opinion of AG Tanchev in ECJ 24 June 2019, Case C-619/18, Commission v Poland, EU:C:2019:325, para. 58. In AK (Indépendance de la chambre disciplinaire de la Cour suprême), AG Tanchev refers to a ‘constitutional passarelle’ between both provisions: Opinion of AG Tanchev in ECJ 19 November 2019, Joined Cases C-585/18, C-624/18 and C-625/18 AK (Indépendance de la chambre disciplinaire de la Cour suprême), EU:C:2019:551, para. 85. The relationship between both provisions and their respective field of application, specifically in light of Art. 51(1) of the Charter, has been subject to debate. AG Bobek poetically describes the discussion as follows: ‘A detailed discussion about the exact scope of Article 51(1) Charter when contrasted with Article 19(1) TEU looks a bit like a debate on what colour to choose for the tea cosy and the dining set to be selected for one’s house, coupled with a passionate exchange about whether that tone exactly matches the colour of curtains already selected for the dining room, while disregarding the fact that the roof leaks, the doors and windows of the house are being removed, and cracks are appearing in the walls. However, the fact that there is rain coming into the house and the walls are crumbling will always be structurally relevant to any discussion about the state of the judicial house, irrespective of whether the issue of the colour of the tea cosy will eventually be declared to be within or outside the scope of EU law under whatever provision of EU law’: Opinion of AG Bobek in ECJ 29 July 2019, Case C-556/17, Alekszij Torubarov, EU:C:2019:339, para. 55. See, for a more detailed overview of this discussion, P. Van Elsuwege and F. Gremmelprez, ‘Protecting the Rule of Law in the EU Legal Order: A Constitutional Role for the Court of Justice’, 16 EuConst (2020) p. 8 at p. 25-28.
58 Commission v Poland, supra n. 4, para. 51.
59 Bonelli and Claes, supra n. 6, p. 631.
60 Commission v Poland, supra n. 4, paras. 71-74.
61 As mentioned above, the specifics of the case in Wilson are slightly different, yet the Court stuck with its definition also in the context of pure admissibility questions under Art. 267 TFEU.
62 T. Skočir, ‘European Rule of Law, EU Principles and the ECJ: Judicial Response to the Rule of Law Crisis in Poland’, Master’s Thesis, KU Leuven (2019) p. 15.
63 Ibid.
64 The preliminary ruling procedure is a vital element of the right to effective judicial protection, see C. Lacchi, ‘Multilevel judicial protection in the EU and preliminary references’, 53 Common Market Law Review (2016) p. 679.
65 Bonelli and Claes, supra n. 6, p. 638; Opinion of AG Ruiz-Jarabo Colomer in de Coster, supra n. 22, para. 63.
66 Bonelli and Claes, supra n. 6, p. 638.
67 Whether this implies that the type of review carried out by the Court will be the same regardless of the context in which the independence requirement operates will form the subject of the final section of this article.
68 See for example Corbiau, supra n. 15; Criminal Proceedings against X, supra n. 21; ECJ 14 May 2008, Order C-109/07, Pilato, EU:C:2008:274; ECJ 9 October 2014, Case C-222/13, TDC, EU:C:2014:2265.
69 Bonelli and Claes already hint at a ‘paradoxical conclusion’: Bonelli and Claes, supra n. 6, p. 637.
70 Banco de Santander, supra n. 10.
71 Ibid., para. 54 ; Gabalfrisa, supra n. 24, paras. 39-40.
72 Supra, n. 25.
73 Banco de Santander, supra n. 10, para. 55.
74 Ibid., para. 56.
75 Ibid., paras. 64-80.
76 R. García Antón, ‘Can the Spanish Central Tax Tribunal make a preliminary reference under Article 267 TFEU? A “final” tribute to Advocates General Saggio and Ruiz-Jarabo Colomer’, EU Law Live, 22 January 2020, ⟨eulawlive.com/op-ed-can-the-spanish-central-tax-tribunal-make-a-preliminary-reference-under-article-267-tfeu-a-final-tribute-to-advocate-general-saggio-and-ruiz-jarabo-colomer/⟩, visited 15 March 2021.
77 The Court also seems to imply this in ECJ 26 March 2020, Case C-558/18, Miasto Łowicz, EU:C:2020:234, para. 59: ‘For those judges, not being exposed to disciplinary proceedings or measures for having exercised such a discretion to bring a matter before the Court, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to judicial independence […], which independence is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU […].’
78 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland, supra n. 13, p. 16.
79 Commission, ‘Rule of Law: European Commission refers Poland to the Court of Justice to protect judges from political control’ (Press Release) (Brussels, 10 October 2019) ⟨ec.europa.eu/commission/presscorner/detail/en/IP_19_6033⟩, visited 15 March 2021.
80 Lenaerts draws the same conclusion. Furthermore, he argues that those courts cannot provide judicial protection, since they might not be able to make use of the remedies (such as setting aside national measures) that are provided under EU law. Lastly, undermining judicial independence is detrimental to mutual recognition of judicial decisions: K. Lenaerts, ‘New Horizons for the Rule of Law Within the EU’, 21 German Law Journal (2020) p. 29 at p. 31-32.
81 Minister for Justice and Equality v LM, supra n. 52, para. 79.
82 For the full test to be carried out by the executing authority: see ibid., paras. 73-78.
83 See, to that effect, also the recent references made by the District Court of Amsterdam in (now) joined and pending cases C-354/20 and C-412/20, where it asked the Court in essence whether the worsening of the systemic or generalised deficiencies in the system of independence of the Polish courts would entitle it to refuse automatically all European Arrest Warrants at issue: Application Rechtbank Amsterdam, 31 July 2020, Case C-354/20, available at ⟨curia.europa.eu/⟩; Application Rechtbank Amsterdam, 3 September 2020, Case C-412/20, available at ⟨curia.europa.eu/⟩. AG Campos Sánchez-Bordona advised the Court to confirm the case law set out in Minister for Justice and Equality v LM: Opinion of AG Campos Sánchez-Bordona of 12 November 2020, Joined Cases C-354/20 and C-412/20, L and P, EU:C:2020:925, para. 5.
84 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland, supra n. 13, p.17.
85 It should be noted that after Commission v Poland (Indépendance de la cour suprême) Poland repealed the law forming the subject of that case. Nonetheless, the Polish judiciary is affected by multiple legislative changes other than the ones disputed in that case. While not all references made in AK were considered admissible, none of them were inadmissible because the referring body was deemed to be no longer a court or tribunal for lacking independence in the sense of Art. 267 TFEU: ECJ 19 November 2019, Joined Cases C-585/18, C-624/18 and C-625/18, AK, EU:C:2019:982.
86 Contrastingly, in the preliminary ruling Miasto Łowicz, the Court did strongly condemn the possible exposure of Polish judges to disciplinary proceedings, as this threatens their independence, which is in turn essential to the proper working of the preliminary ruling mechanism: Miasto Łowicz, supra n. 77, paras. 57-59.
87 Banco de Santander, supra n. 10.
88 D. Sarmiento, ‘The Polish Dilemma’, Despite our Differences, 17 July 2017 ⟨despiteourdifferencesblog.wordpress.com/page/5/⟩, visited 15 March 2021; Lenaerts, supra n. 80, p. 31, 32; Bonelli and Claes, supra n. 6, p. 637. See also, N. Wahl and L. Prete, ‘The Gatekeepers of Article 267 TFEU : on Jurisdiction and Admissibility of References for Preliminary Rulings’, 55 Common Market Law Review (2018) p. 511 at p. 527.
89 This research was concluded on 16 December 2020.
90 See also supra n. 85. The Court seems to proceed with caution. This can also be seen in AK, where the Court left the final determination whether the Polish National Council of Judiciary and the Disciplinary Chamber of the Polish Supreme Court are independent to the referring court. For an analysis see S. Platon, ‘Writing between the lines. The preliminary ruling of the CJEU on the independence of the Disciplinary Chamber of the Polish Supreme Court’, EU Law Analysis, 26 November 2019 ⟨eulawanalysis.blogspot.com/2019/11/writing-between-lines-preliminary.html⟩, accessed 15 March 2021.
91 Opinion of AG Wahl in Torresi, supra n. 36.
92 ECJ 17 July 2014, Joined Cases C-58/13 and C-59/13, Torresi, EU:C:2014:2088.
93 ECJ 30 November 1997, Case C-55/94, Gebhard, EU:C:1995:411.
94 Supra.
95 Opinion of AG Wahl in Torresi, supra n. 36, paras. 26-29.
96 Ibid., para. 32.
97 Ibid., paras. 38-43.
98 Ibid., para. 44.
99 Ibid., para. 45.
100 Ibid., para. 47.
101 Ibid.
102 Ibid., para. 48.
103 Ibid., para. 49.
104 Ibid.
105 Ibid., paras. 50-51.
106 Ibid., para. 52.
107 Ibid., para. 53. On the ‘institutional approach’ to determine whether a body qualifies as ‘court or tribunal’, see also the Opinion of AG Bobek in ECJ 9 March 2017, Case C-551/15, Pula Parking, EU:C:2016:825, paras. 85-86. AG Bobek argues that generally, when it comes to bodies that are part of the judicial branch of a member state, the Court does not even discuss whether that body is a ‘court or tribunal’. He uses the English High Court of Justice, the Arondissementsrechtsbank, or the Tribunal de Grande Instance as examples of bodies that of course qualify as ‘courts or tribunals’.
108 Opinion of AG Wahl in Torresi, supra n. 36, para. 60.
109 Opinion of AG Bobek in Pula Parking, supra n. 107.
110 Ibid., para. 100.
111 Ibid., para. 104.
112 Torresi, supra n. 92, paras. 21-25.
113 It should be noted that in AK, supra n. 85, the Court did in fact look at ‘the cocktail effect’ that several seemingly harmless measures may have when combined. However, the Court carried out this assessment under Art. 19 TEU. Platon, supra n. 90.
114 Köllensperger and Atzwanger, supra n. 23, para. 24.
115 Opinion of AG Tanchev in Commission v Poland, supra n. 57, para. 111.
116 Relying on this case, Prete and Wahl call the idea that the Court would have to re-consider whether Polish courts generally fulfil the requirement of independence for the purposes of Art. 267 TFEU – and thus still qualify as ‘courts or tribunals’ – ‘certainly original’ but with ‘little support in the Court’s case law’: Wahl and Prete, supra n. 88, p. 527.
117 Opinion of AG Tanchev in AK, supra n. 57.
118 Ibid., para. 66.
119 Ibid., para. 110.
120 Ibid., para. 111.
121 Ibid., para. 112.
122 Ibid., para. 113.
123 Ibid., paras. 114, 119-123. Concretely, the standards of Art. 6(1) ECHR entail an objective assessment of, inter alia, the appointment procedure, the existence of guarantees against outside pressures and of whether the body presents an appearance of independence.
124 Ibid., para. 111.
125 The ruling in Torresi, which is discussed above, is a good example of that: Torresi, supra n. 92.
126 Opinion of AG Bobek in Pula Parking, supra n. 107, para. 104.
127 Lenaerts, Speech at the Supreme Administrative Court of the Republic of Poland, supra n. 13, p. 8.
128 ECJ 9 July 2020, Case C-272/19, Land Hessen, EU:C:2020:535. Note that this is not a Grand Chamber case.
129 Ibid., para. 45.
130 Ibid.
131 Ibid.
132 Ibid., para. 46 (emphasis added).
133 Supra.
134 Supra.
135 Commission v Poland, supra n. 4, para. 45.
136 Opinion of AG Ruiz-Jarabo Colomer in de Coster, supra n. 22, para. 87.
137 AK, supra n. 85, and Miasto Łowicz, supra n. 77, are examples of that.
138 Commission, supra n. 1.
139 See for instance, the implementation of the Danish Supreme Court in the AJOS case. For an analysis, see Klinge, supra n. 13. Another example is the recent stand-off between the Court and the German Federal Constitutional Court in its PPSP judgment: Eleftheriadis, supra n. 13.
140 ECJ 17 December 2020, Joined Cases C-354/20 and C-412/20, L. and P, EU:C:2020:103.
141 Ibid., para. 42.
142 Ibid., paras. 43-44.
143 Minister for Justice and Equality v LM, supra n. 52. See also Opinion of AG Campos Sánchez-Bordona in L. and P, supra n. 83.
144 Minister for Justice and Equality v LM, supra n. 52, para. 72.
145 Ibid., para. 61.
146 Ibid., paras. 74-77.
147 While it is true that Hungary and Poland are currently blocking this mechanism for each other, this idea seems viable at least in theory and respects the balance of powers in the EU.
