Skip to main content

Advertisement

SpringerLink
Log in

Judicial independence in the Member States of the Council of Europe and the EU: evaluation and action

  • Article
  • Published:
ERA Forum Aims and scope

Abstract

This article analyses some of the challenges in implementing and strengthening the principle of judicial independence at European level. It first highlights the difficulties in assessing the level of compliance with the principle of judicial independence and shows the approaches taken by the Council of Europe and the European Union. Next, it discusses some of the most recent decisions of the CJEU regarding Article 47 of the Charter and argues how infringements of the rule of law can undermine the whole principle of mutual recognition. Finally, it will be advocated that the actions taken in strengthening judicial independence need the joining of efforts of the European Union and the Council of Europe.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. See, for example, the United Nations Rule of Law Indicators of 2011, available at http://www.un.org/en/events/peacekeepersday/2011/publications/un_rule_of_law_indicators.pdf, or the Venice Commission Rule of Law Checklist of 2016, available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e, inspired both in the list of elements elaborated by Lord Bingham in the Sixth David Willliams Lecture, given at Cambridge on the 16 November 2006.

  2. See, inter alia, Sutter v. Switzerland, Appl. no. 8209/78, 1 March 1979; Campbell and Fell v. United Kingdom, Appl. nos. 7511/76; 7743/76, 28 June 1984; Sramek v. Austria, Appl. no. 8790/79, 22 October 1984; Belilos v. Switzerland, Appl. no. 10328/83, 29 April 1988; Langborger v. Sweden, Appl. no.11179/84, 22 June 1989; McGonnell v. United Kingdom, Appl. no. 28488/95, 8 February 2000; Pescador Valero v. Spain, Appl. no. 62435/00, 17 June 2003; Salov v. Ukraine, Appl. no. 65518/01, 6 September 2005; Stojakovic v. Austria, Appl. no. 30003/02, 9 November 2006; Zlinsat Spol. S.R.O. v. Bulgaria, Appl. no. 57785/00, 10 January 2008; M.C. and others v. Italy. Appl. no. 5376/11, 3 September 2013; Ramos Nunes de Carvalho e Sà v. Portugal, Appl. nos. 55391/13, 57728/13 and 74041/13, 21 June 2016. See also McBride [3], p. 154 ff.

  3. For example, see cases C-503/15 Margarit Panicello, of 16 February 2017, EU:C:2017:126; C-271/117 PPU Zdziaszek, of 10 August 2017, EU:C:2017:629.

  4. And as Art. 6.3 TEU states: ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’

  5. Bosphorus v. Ireland, Appl. no. 45036/98, 30 June 2005.

  6. See, for example, Kostoris [2], pp. 69 ff. As this author states, this was a political choice for not hindering the process of European Union integration (p. 71).

  7. Art. 51(1) EU Charter of Fundamental Rights: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’

  8. Checking whether a given legal framework complies with the principle of judicial independence and provides for the necessary safeguards is usually not be very difficult, as there is general agreement on the standards that are to be followed, as set out in the Council of Europe Recommendation (2010)12 ‘Judges: independence, efficiency and responsibilities’ adopted by the Committee of Ministers of the Council of Europe on 17 November 2010, on the proposal of the European Committee on Legal Cooperation (CDCJ). However, establishing to what extent the judicial independence is safeguarded in practice is something quite different and by far more complex.

  9. Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ).

  10. The CEPEJ was set up by the Committee of Ministers of the Council of Europe in September 2002, and is entrusted primarily with proposing concrete solutions suitable for use by Council of Europe Member States to promote the effective implementation of Council of Europe instruments used for the organisation of justice; ensure that public policies concerning courts take into account the needs of the justice system users; and offer States effective solutions prior to the point at which an application would be submitted to the European Court of Human Rights and preventing violations of Art. 6 of the European Convention on Human Rights, thereby contributing to reducing congestion in the Court.

  11. The 7th CEPEJ report published in 2018 which contains the assessment of the data of 2016 can be accessed under https://www.coe.int/en/web/cepej/cepej-work/evaluation-of-judicial-systems.

  12. CM/Rec (2010)12 ‘Judges: independence, efficiency and responsibilities’, contains 72 recommendations divided in eight chapters. It updates the previous CoE Recommendation of 1994 and does not aim at harmonising the legislation of the Member States but ‘outlines in greater detail the measures which should be taken in some member states in order to strengthen the role of individual judges and of the judiciary.’

  13. CDCJ(2016)2 final, Strasbourg 13 March 2017. The report was prepared by Lorena Bachmaier on behalf of the European Committee on Legal Co-operation (CDCJ), at the request of the Secretary General of the Council of Europe, as a follow-up to its 2015 report entitled ‘State of Democracy, Human Rights and the Rule of Law in Europe—a shared responsibility for democratic security in Europe’, accessible at https://rm.coe.int/1680702caa.

  14. See p. 21 of the Report of the Secretary General Thorbjørn Jagland ‘State of Democracy, Human Rights and the Rule of Law in Europe. A Shared Responsibility for Democratic Security in Europe’ presented in the 125th Session of the Committee of Ministers, Brussels 19 May 2015.

  15. The report is the result of the evaluation of the information provided by the authorities of Member States in their replies to the questionnaire, mainly the Ministries of Justice and Ministries of Foreign Affairs, and thus it is based on official information provided by the State authorities.

  16. Communication from the Commission—Annual Growth Survey 2018, 22.11.2017, COM(2017) 690 final, p. 4.

  17. The same document states that ‘the Scoreboard does not present an overall single ranking but an overview of how all the justice systems function, based on various indicators that are of common interest for all Member States. The Scoreboard does not promote any particular type of justice system and treats all Member States on an equal footing.’

  18. See the 2018 EU Justice Scoreboard, p. 2, accessible at https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2018_en.pdf.

  19. The statute of the CEPEJ emphasizes the comparison of judicial systems and the exchange of knowledge on their functioning. The scope of this comparison is broader than ‘just’ efficiency in a narrow sense: it also emphasizes the quality and the effectiveness of justice. In order to fulfil these tasks, the CEPEJ has undertaken a regular process for evaluating judicial systems of the Council of Europe’s Member States. Information on the CEPEJ evaluations are available at https://www.coe.int/en/web/cepej/cepej-work/evaluation-of-judicial-systems.

  20. Available at https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2018_en.pdf.

  21. The most recent 2018 country reports are available at: https://ec.europa.eu/info/publications/2018-european-semester-country-reports_en.

  22. Ibídem, p. 44.

  23. Case C-64/16 Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, Judgment of the Court (Grand Chamber) of 27 February 2018, on the request for a preliminary ruling from the Portuguese Supremo Tribunal Administrativo, EU:C:2018:117.

  24. Case C-216/18 PPU—Minister for Justice and Equality v. L.M., Judgment of the Court (Grand Chamber) of 25 July 2018, EU:C:2018:586.

  25. Art. 19(1) TEU: ‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

  26. In this sense, see the Recommendation CoE (2010)12, para. 54:

    ‘Judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions. Guarantees should exist for maintaining a reasonable remuneration in case of illness, maternity or paternity leave, as well as for the payment of a retirement pension, which should be in a reasonable relationship to their level of remuneration when working. Specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges.’

  27. See para. 49 of the judgment.

  28. EU:C:2017:395, para. 64.

  29. However, another interpretation of Art. 19(1) TEU was accepted already in the judgments C-583/11 P, Inuit Tapiriit Kanatami and Others v. Parliament and Council of 3 October 2013, EU:C:2013:625, para. 90; and, C-456/13 P, T & L Sugars and Sidul Açúcares v Commission of 28 April 2015, EU:C:2015:284, para. 45.

  30. The Court has made clear that the concept of ‘implementing Union law’ within the meaning of Art. 51 of the Charter, as the AG states in his Opinion (see para. 43) ‘presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other. In that regard, it is necessary to determine, inter alia, whether the national legislation at issue is intended to implement a provision of EU law, the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law, and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it’. In this sense C-198/13 Julián Hernández and Others of 10 July 2014, EU:C:2014:2055; C-218/15 Paoletti and Others of 6 October 2016, EU:C:2016:748.

  31. See para. 29.

  32. See para. 32 and the case law of the CJEU quoted there.

  33. EU:C:2018:586, para. 25 of the judgment.

  34. Case C-404/15 Aranyosi and Căldăraru, Judgment of the Court (Grand Chamber) of 5 April 2016, EU:C:2016:198. On this judgment see, Bovend’Eerdt [1], pp.112–121; Ollé Sesé/Gimbernat Díaz [6], pp. 1–19; Muñoz Morales [5], pp. 1–26.

  35. Opinion of the Venice Commission No 904/2017 of 11 December 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’; and Opinion of the Venice Commission No 892/2017 of 11 December 2017 ‘On the Act on the Public Prosecutor’s office’, available at http://www.venice.coe.int/webforms/events/.

  36. The Commission adopted a fourth Rule of Law Recommendation regarding the rule of law in Poland, setting out the Commission’s concerns and recommending how these concerns could be addressed. Commission Recommendation of 20.12.2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520, Brussels 20.12.2017, C(2017) 9050 final.

  37. The infringement procedure (Case C-192/18, Commission v. Poland) relates to a violation of Art. 157 TFEU and Directive 2006/54, based on the discrimination on the basis of gender due to the introduction of a different retirement age for female judges and male judges Further the procedure is triggered for infringement of Art. 19(1) TEU in combination with Art. 47 of the Charter of Fundamental Rights due to the attack to the independence of the judiciary as a result of the discretionary power given to the Minister of Justice to prolong the mandates of judges who have reached the lowered retirement age.

  38. The hearing foreseen within the process of Art. 7 TEU was held on 26 June 2018, where Poland expressed that they did not share the assessment done by the EU Commission on the breach of the rule of law in Poland. See Report of the hearing held by the Council on 26 June 2018, Brussels, 8 August 2018, JAI 740, accessible at http://www.statewatch.org/news/2018/aug/eu-council-rule-ofLaw-poland-10906-18.pdf.

  39. Speech of 20 November 2018, ‘Remarks at Public Hearing on the Rule of Law in Poland, at the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs’, accessible at https://ec.europa.eu/commission/commissioners/2014-2019/timmermans/announcements/remarks-public-hearing-rule-law-poland-european-parliaments-committee-civil-liberties-justice-and_en.

  40. Case C-619/18 Commission v Poland, Order of 17.12.2018, EU:C:2018:1021.

  41. Ruling of the CJEU in the case L.M., para. 79. On the Opinion of the AG, see Mirandola [4], 24 July 2018.

  42. See Aranyosi and Căldăraru, para. 78, quoting Opinion 2/13 of the Court, of 18 December 2014, para. 19, EU:C:2014:2454.

  43. CM(2016)36 final adopted at the 1253rd meeting of the Ministers’ Deputies, on 13 April 2016, the Committee of Ministers, accessible at https://rm.coe.int/1680700285.

  44. See p. 5.

  45. These last measures are the following:

    ‘i. limit interference by the judicial hierarchy in decision making by individual judges in the judicial process and define the powers of the prosecution service in order to ensure that judges are protected from undue pressure and able to freely follow or reject the motions of prosecutors;

    ii. ensure that the rules relating to judicial accountability and the review of court decisions fully respect the principles of judicial independence and impartiality;

    iii. effective remedies should be provided, where appropriate, for judges who consider their independence and impartiality threatened;

    iv. prevent and combat corruption within the judiciary and shield judges from inducement to corruption. In this respect, member States should ensure that the remuneration and working conditions of judges are adequate and that standards of professional conduct and judicial ethics are reinforced;

    v. counter the negative influence of stereotyping in judicial decision making;

    vi. ensure comprehensive and effective training of the judiciary in effective judicial competences and ethics;’

    vii. ensure that judges are protected by legal regulations and adequate measures against attacks on their physical or mental integrity, their personal freedom and safety.’

  46. See for example, the Proposal for a Regulation of the European Parliament and of the Council establishing the Justice Programme, Brussels, 30.5.2018 COM(2018) 384 final.

  47. See the Proposal for a EU Regulation of the European Parliament and of the Council ‘On the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States’, Brussels, 2.5.2018 COM(2018) 324 final.

References

  1. Bovend’Eerdt, K.: The joined cases Aranyosi and Căldăraru: a new limit to the mutual trust presumption in the area of freedom, security, and justice? Utrecht J. Int. Eur. Law 32(83), 112–121 (2016)

    Article  Google Scholar 

  2. Kostoris, R.: Handbook of European Criminal Procedure. Springer, Cham (2018)

    Book  Google Scholar 

  3. McBride, J.: Human Rights and Criminal Procedure. Council of Europe Publishing, Strasbourg (2009)

    Google Scholar 

  4. Mirandola, S.: European arrest warrant and judicial independence in Poland: where can mutual trust end? (Opinion of the AG in C-216/18 PPU L.M.). European Law Blog 24.7.2018, available at: https://europeanlawblog.eu/2018/07/24/european-arrest-warrant-and-judicial-independence-in-poland-where-can-mutual-trust-end-opinion-of-the-ag-in-c-216-18-ppu-l-m/

  5. Muñoz Morales, M.: ‘Dime cómo son tus cárceles y ya veré yo si coopero’. Los casos Caldararu y Aranyosi como nueva forma de entender el principio de reconocimiento mutuo’, InDret 1/2017, pp. 1–26

  6. Ollé Sesé, M., Gimbernat Díaz, E.: ‘Orden europea de detención y entrega y tratos inhumanos o degradantes. STJE de 5 de abril de 2016, asuntos C-404/15 y C-659/15PPU: Aranyosi y Caldararu’, La Ley Unión Europea (40) 1–19 (2016)

Download references

Author information

Authors and Affiliations

  1. Madrid Complutense University, Madrid, Spain

    Lorena Bachmaier Winter

Authors
  1. Lorena Bachmaier Winter
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Lorena Bachmaier Winter.

Additional information

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

The present paper is mainly based on the oral presentation the author made during the ERA Conference ‘The independence of judges in their judicial and social context’ that took place at the Cour de Cassation in Paris on 14 September 2018. I want to reiterate my thanks to the organisers and participants for the fruitful event, which undoubtedly made us reflect on judicial independence which is permanently under threat. My gratitude also goes to all those judges who every day face, with courage and professionalism, the difficult task of being independent and decide only subject to the law, which act for us thus protecting democracy and the human rights of all of us.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Bachmaier Winter, L. Judicial independence in the Member States of the Council of Europe and the EU: evaluation and action. ERA Forum 20, 113–127 (2019). https://doi.org/10.1007/s12027-019-00551-3

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s12027-019-00551-3

Keywords

Search

Navigation