Striking a Balance between Independence and Interference: Judicial Independence and the Rule of Law in the EU | IIEA
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Striking a Balance between Independence and Interference: Judicial Independence and the Rule of Law in the EU

On 8 July 2021, the European Commission published its Justice Scoreboard for 2021. According to Didier Reynders, European Commissioner for Justice, this scoreboard is “the pillar of the Commission’s policy to ensure the effectiveness of judicial systems across the EU”, and it “will feed into the forthcoming Rule of Law Report”.  Commissioner Reynders hopes that the new Scoreboard will enable a more meaningful political debate on justice policy within the EU, as public perceptions of judicial independence vary widely in the EU, due to a perceived lack of independence in the courts and judges of some Member States.   This year’s Scoreboard focused on the digitalisation of justice which kept courts functioning during the COVID-19 pandemic and the effectiveness of judicial systems. Commissioner Věra Jourová commented that judicial independence had decreased during the COVID-19 pandemic and warned politicians that they should resist the temptation to use the pandemic as an excuse to pressurise independent judges. 

So, what are the repercussions of such political interference on the EU legal order and on the maintenance of rule of law within the Union?  

The independence of judiciaries in Member States of the European Union is a core aspect of the Rule of Law in the EU and this year’s Scorecard introduced two new indicators: the first is giving an overview of the independence of the national bodies that appoint Supreme Court Judges. The independence of Supreme Courts in EU Member States is essential to secure the uniform application of EU law across Member States; the second is the requirement in European law that Member States ensure that once appointed, judges are free from influence or pressure when carrying out their roles.  

The Scoreboard focuses on three elements of an effective justice system: efficiency, quality/accessibility and independence.  It presents data on the perception of judicial independence by the public and by business; safeguards for judges, and safeguards relating to the national prosecution services.  

While the caselaw of the Court of Justice of the European Union (CJEU) has been progressive, present methods for ensuring the protection of judicial independence are less so. Furthermore, as a Union predicated on the consistent application of uniform rules, a well-functioning, fully independent judicial system can have a positive impact on investment decisions, adding an economic dimension to the argument. On the other hand, the implications of inconsistent implementation are far-reaching; ranging from undermining rule of law and democracy, to corruption, impediments to free trade, and the sustained erosion of trust between national courts in Member States and the CJEU, which could, if unchecked, ultimately lead to the unravelling of the EU legal order.  

A Patchwork Quilt of Judicial Independence in the EU 

While the operation of national justice systems is a Member State competence the role of national courts and legal systems in enforcing EU law means that national legal systems are deeply intertwined with EU law.  

The application of judicial independence in the EU is, however, far from uniform and exists on a sliding scale across the Union. Furthermore, in Eurobarometer surveys, the same Member States tend to consistently score either higher or lower on this scale. While judicial independence is increasingly a cause for concern in some Member States, in others, efforts to address these concerns have been made.  For example: 

  • In an opinion delivered on Thursday, 20 May 2021, Czech Advocate General at the CJEU, Michal Bobek stated that in Poland: “the minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary are no longer present”.  A decision from the Court on this matter is expected later this week.
  • In Hungary, the significant powers of the President of the National Office of the Judiciary have been identified as a cause of concern in the European Commission Rule of Law Report 2020, as reports of undue influence by particular interests emerged. 

On the other hand, in Romania although reforms enacted between 2017 and 2019 which have adversely affected judicial independence remain in place, a Government commitment to reverse rule-of-law-backsliding led to a de-escalation in tensions with the judiciary.  Similarly, in Slovakia, the European Commission Rule of Law Report 2020 identifies longstanding concerns regarding the independence of the judiciary and the integrity of the justice system. However, reform plans were announced in April 2020 which aim to increase transparency in the judicial appointment process.  

Why Does Judicial Independence Matter? 

There are several reasons which necessitate the high value placed on judicial independence within the European Union.  

First, a staunch defence of the independence of the judiciary is necessary as a matter of principle in the separation of powers. Furthermore, a disparity in the application of Union values – such as rule of law - across the EU has consequences for the functioning of judicial cooperation in the EU on matters such as the European Arrest Warrant (EAW) which is based on mutual trust on the basis of compliance with fundamental rights and the rule of law, enshrined in Article 2 of the Treaty of the European Union (Art. 2 TEU).  

Second, it is necessary in the fight against corruption. An uncompromising defence of the judiciary, and its role in maintaining the balance of power, plays a vital role in preventing corruption and upholding public confidence in public institutions.

Third, it has a significant impact on investment decisions and attracting businesses to the EU, which require legal certainty. In a new development, the data from this year’s Justice Scoreboard has been taken into account in the country-specific assessments within the European Semester, a framework which evaluates the recovery and resilience plans of Member States. This is therefore a reputational matter for a Member State hoping to receive its fair share of the Recovery and Resilience Fund.

Finally, framing the issue as an existential one for the Single Market, Adam Bodnar, Poland’s outgoing Human Rights Commissioner, stated that “guarantees of judicial independence” in EU Member States are necessary for the free flow of goods, services and capital in the Single Market, all of which are foundational tenets of the Union.  

Limitations on the Role of the CJEU  

Although the CJEU endeavours to protect judicial independence, there are limits to how effective it can be, if Member States do not cooperate: 

  • The first limit is Member States’ refusal to adhere to CJEU rulings. For example, the Disciplinary Chamber of the Supreme Court of Poland continues to operate although the CJEU ordered its temporary suspension in respect to disciplinary proceedings on 8 April 2020. 
     
  • The second limit pertains to so-called preliminary rulings which offer national courts the possibility to apply to the CJEU for a “preliminary ruling” i.e. for guidance on a matter pertaining to the application of European Law. This opportunity has been described by the CJEU as the cornerstone of the judicial system of the EU. It is also noteworthy that judicial independence is the primary criterion relied upon by the CJEU if a national court wishes to qualify as a ‘court of tribunal’ to seek CJEU advice. 

In the absence of mutual trust between national judges and judges of the CJEU, and in light of the unlawful composition of some courts in EU Member States, the basis of the preliminary rulings can be undermined.

Conclusion 

The limitations placed on access to effective judicial remedies from independent judges threaten not just the functioning of the legal system in specific Member States, but also the entire EU legal system. The limitations placed on the CJEU mean that the remedy in this context must be a hybrid of both legal and political measures. This would mean the Commission fulfilling its role as Guardian of the Treaties, taking stock of the efforts undertaken across the European Union to promote and uphold the Rule of Law, and discussing with Member State governments how the EU can further promote an EU-wide Rule of Law culture.

What emerges from this reflection is that trust is a key issue in the context of rule of law compliance for citizens, for business investors and for governments. Ensuring the effective and consistent application of Rule of Law across the EU is vital, not only to underpin the values of the Union, but to ensure the economic integrity of the Single Market and the ultimate political cohesion of the EU.