‘The Substantive Requirements of Judicial Independence in the EU: Lessons from Times of Crisis’ (EU-POP Jean Monnet Module Working Paper 1/2021)

In 2018, it was clarified that, “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.” This statement by the Court of Justice (ECJ) in Associação Sindical dos Juízes Portugueses (ASJP) represented an important clarification in respect to the possibility of protecting the independence of the EU judiciary under EU law, which falls under the principle of effective judicial protection. This was perhaps the most consequential development in the Court’s judicial independence-related case law to date, in which the Court, “establishe[d] a general obligation for Member States to guarantee and respect the independence of their national courts and tribunals” via their interpretation of Article 19(1) of the Treaty on European Union second subparagraph. The year 2018 also witnessed “the first time a Member State was found to have failed to fulfil its Treaty obligations by violating the principle of judicial independence”, when the Commission brought proceedings against Poland via Article 258 TFEU alleging an infringement of Article 19(1) TEU second subparagraph. Section 1 takes stock of guarantees that the ECJ has deemed “essential” to safeguarding judicial independence. According to the Court, such essential guarantees include the provision of appropriate disciplinary regimes (1.1) and commensurate remuneration (1.2). An analysis of those guarantees serves to inform the identification of other possible “essential guarantees”, which arguably include safeguards against executive discretion that results in undue external intervention or pressure on the judiciary (1.3). The latter half of this paper then turns to the second category of substantive requirements of judicial independence identified in the research underlying this piece: respect for existing rules identified by the Court as “fundamental rules forming an integral part of the establishment and functioning of [the] judicial system”. In Simpson and HG (2020), the Court used this formula to determine when a breach of an existing rule related to the supranational EU judiciary also entails a breach of independence, by distinguishing between ‘fundamental’ and non-fundamental rules related to judicial appointments and term durations (2.1). However, it is further argued here that additional rules related to other types of measures – i.e. judicial remuneration and disciplinary regimes – can also be considered integral to the establishment and functioning of the judiciary (2.2). In order to understand and demonstrate how these “essential guarantees” and “fundamental rules” of judicial independence operate in practice, several contemporary crisis-related issues are explored throughout these sections, including: the rule of law crises affecting several Member States, the exit of the UK from the EU (“Brexit”), economic crises that have arisen as a result of the global financial crisis and euro-area sovereign debt crises, and now the COVID-19 pandemic, which has exacerbated the aforementioned rule of law and economic issues. Though crises of different natures will inevitably come and go, this does not mean that the EU judiciary’s judicial infrastructure cannot be made more resilient. Indeed, as will be seen, insight as to the substance of the judicial independence provisions can be drawn from these situations in a way that can be used to bolster the independence of the EU judiciary. In light of the findings and arguments presented herein, the authors’ approach is first that where a case concerns the introduction or application of a measure affecting the judiciary, under Article 19 TEU, the question should be whether the given measure fails to provide the “essential guarantees” of judicial independence required in that context. Second, where the case concerns a breach of a rule related to the judiciary (and this rule does not in itself fail to provide an essential guarantee of judicial independence), it can be asked whether that breach concerned a “fundamental rule” integral to the judiciary’s establishment or functioning. If the answer is “yes” to either question, the independence of the relevant judge or court required by Article 19 TEU has been infringed, and vice versa