A central notion in the LM ruling is the independence of the judiciary. In the Court’s view, the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial. The right is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded. (para. 48). It is clear, the independence of the judiciary forms the essence of a fair trial and the right to effective judicial protection. At the same time, it lies in the very heart of the rule of law.Footnote 7 Without judicial independence, the state legal system can only provide an illusion of the rule of law.
In recent years, however, in some EU Member States, we have been witnessing the undermining of the role of independent judiciary. Without it, the protection of all human rights is impaired, including the right to a fair trial. Yet, respect for the right to effective judicial protection is a necessary and inalienable prerequisite for the protection of all other fundamental rights.Footnote 8 From the perspective of threats to the protection of judicial independence and thus to the rule of law and to fundamental rights, the LM ruling marks a further step towards building and consolidating the defense of the EU legal order and Union values against states that seem to be abandoning them and threaten the entire European project.Footnote 9 A new, specific point which was made by the CJEU is the following: if the national court executing the European Arrest Warrant finds that there are substantial grounds for believing that the person in respect of whom that warrant has been issued, will—following his surrender to the issuing judicial authority—run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, it may ultimately refrain to give effect to the warrant (para. 73).
In developing the understanding of judicial independence, the CJEU relied on the concept worked out in its previous case law and voiced i.a. in the Associação Sindical judgment. In the LM ruling, the Court broadened its view on the elements that make up and substantiate judicial independence (para. 63–67). This is one of the most important aspects of the judgment whose relevance goes beyond the specific case brought by the Irish High Court.
The notion of ‘court’ was elaborated in CJEU jurisprudence in the context of the preliminary reference procedure.Footnote 10 The CJEU enjoys the power to verify whether a request for a ruling comes from an authorised body, i.e. a ‘court or tribunal’. It is empowered to do so both on party’s request or of its own motion, when deciding the admissibility of the preliminary ruling request. The Treaty does not determine which body is to be considered a court, yet the Court of Justice has consistently pointed to a number of criteria which it takes into account when assessing if a body is in fact a ‘court or tribunal’. The traditional Court’s formula reads as follows:
the factors to be taken into account in assessing whether a body is a ‘court or tribunal’ include, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.Footnote 11
It is thus not the formal denomination as a ‘court’ that is decisive for the actual classification of the body admitted under Article 267 TFEU. What matters most of all is whether it carries out the function of adjudicating; if it acts as a judicial body. This entails a number of elements. The court proceedings are initiated by action of a party that wants to have a dispute settled. Bringing the case to the court results in the lis pendens, and precludes autonomous action in another ordinary court.Footnote 12 In most cases, judicial proceedings are by nature adversarial, and are characterised by opposing positions of the parties. The proceedings eventually lead to a binding ruling.Footnote 13 Furthermore, the court cannot refrain from taking a position on the case; it is entitled and, at the same time, called upon to consider and decide the case.Footnote 14 The final ruling of the court has the effect of res judicata.Footnote 15
It is clear that the independence of the body belongs to the constitutive elements of a ‘court’ and is intrinsic to the very basic idea of adjudication. This is why it forms an essential requirement of the right to an effective remedy provided for by Article 19 TEU and Article 47 EU Charter of Fundamental Rights. As such it must be guaranteed both at the EU level, within the CJEU, but equally by the Member States at the national level with respect to domestic courts.Footnote 16 The Court of Justice in the Associação Sindical case proclaimed a general obligation of EU members to guarantee and respect independence of their judiciaries.Footnote 17 Domestic courts once they are qualified as a ‘court or tribunal’ under EU law and are empowered to rule on EU legal issues, have become ‘European courts’ (‘Union courts’) whose independence is now protected by the Union, its institutions and the Union’s legal system.Footnote 18
The guarantees of judicial independence are intended to protect both the courts and judges as well as those whose cases they handle. Firstly, they create an environment for the judge that enables himFootnote 19 to carry out the judicial function being confident about professional and personal safety. The judge must not fear that another public authority will not appreciate the court’s decision and that he may suffer some negative consequences for that reason. Secondly, the guarantees of judicial independence provide the parties with a sense of confidence and certitude that the court will keep equal distance from the parties.Footnote 20 The facts of the case and the applicable law are of sole relevance to the court, and it shall not take into account other considerations. When, in the end, the court delivers a judgment, it is indeed the very law that speaks.Footnote 21
2.1 Autonomy of Courts
Unquestionably, there is a need to assess the independence of the national judiciary on the basis of a common EU standard. In its case law, the Court of Justice identified external (objective) and internal (subjective) aspects of independence, that to a large extent remain in line with the set of criteria indicated by the European Court of Human Rights.Footnote 22 They consist in guaranteeing, on the one hand—the autonomy of the court and, on the other—the objectivity and impartiality of the judge. In a similar way, judicial independence is understood in the jurisprudence of the Polish Constitutional Tribunal.Footnote 23
Judicial independence sets the limits of political influence on the judiciary.Footnote 24 When considering a case, the court must remain autonomous. It must be free from outside influence, is protected ‘against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them’.Footnote 25 It is presumed that ‘the court exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever’.Footnote 26
These preconditions are ensured by the principle of separation of powers, organizational and functional autonomy of courts which are entrusted with the task of administering justice. Other public bodies should be deprived of instruments by which they could exert pressure on courts to comply with their instructions or expectations.
In Commission v. Hungary the Court of Justice addressed the issue of political influence. It held that the mere risk that political influence could be exercised is enough to hinder the body in the independent performance of its tasks.Footnote 27 It continued by indicating a particular example of such influence: a threat of a premature termination of the body’s term of office. This could lead to ‘prior compliance’ that would be incompatible with the requirement of independence.Footnote 28 In this case, the Court of Justice was not referring to a national court, but to a supervisory authority for the protection of personal data, which in accordance with Directive 95/46Footnote 29 was required to exercise its functions ‘with complete independence’. There is no good reason why the protection of the independence of judicial bodies should deserve anything less.Footnote 30
The current lack of effective separation of powers and the undermining of judicial independence, especially in the absence of guarantees of constitutional review, jeopardises the protection of human rights and disrupts the balance of powers. The consequences of the above deficiencies may be severe and far-reaching, beginning with a de facto change of a state’s political and legal system. As the conduct of the parliamentary majority over the last few years in Poland demonstrates, the Constitution may be ignored or interpreted in a hostile manner.Footnote 31
2.2 Objectivity and Impartiality of Judges
The second aspect of judicial independence embraces the impartiality and objectivity of the members of the court. As the CJEU pointed out, it ‘seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings. (…) [it] requires (…) the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.’Footnote 32
In its previous case law the Court recognised a number of personal and institutional guarantees of independence and impartiality, in particular with respect to: court composition; appointment of judges; length of their service; grounds for abstention, rejection and dismissal; protection against removal from officeFootnote 33 (in particular, the dismissals of members of that body should be determined by express legislative provisions);Footnote 34 or remuneration of judges which should correspond to their function.Footnote 35
A new accent in the LM judgment that expands the Court’s perception of guarantees of judicial independence is the incorporation of some qualitative features of disciplinary proceedings against judges. It can be presumed that this is related to the Polish context. The Court pointed out that the system of disciplinary measures should be regulated in such a way that it cannot be used for political control of the content of court rulings. In this context, the Court stressed the need for a normative definition of: the conduct constituting disciplinary offences; the disciplinary penalties; the defendant’s right to defence; and the right to appeal against a disciplinary ruling. This point of the LM judgment can be seen as a response to the reasoned proposal made by the European Commission under Article 7(1) TEU.Footnote 36 It is worth noting that, in addition to the legislative dimension, the actual application of the disciplinary regime to individual judges should equally be taken into account. Even if the disciplinary system met the criteria provided in the LM ruling at a normative level, its application in individual cases should be also taken into consideration. It is apparent that the situations, the manner and the context in which disciplinary proceedings against judges are instituted, or even the very incidents where judges are threatened with disciplinary responsibility, may intentionally lead to an oppressive effect and interfere with judicial independence. It is expected that the standards of disciplinary regime for judges will be further developed in the course of the infringement action brought in October 2019 by the European Commission against Poland under Article 258 TFEU. The Commission made an evaluation of disciplinary investigations in Poland and concluded that they may be triggered by the content of judicial decisions. This clearly undermines judicial independence and puts judges at risk of political control. The Commission claimed breach of Article 19 (1) TEU—effective judicial protection, and Article 267 TFEU—the right of a domestic court to refer questions for a preliminary ruling, because of the possibility of the initiation of a disciplinary proceeding if the court exercises that right.Footnote 37
A further contribution to the development of the European concept of judicial independence was made by the CJEU in two recent infringement cases on the independence of the Polish Supreme CourtFootnote 38 and the independence of ordinary courtsFootnote 39 initiated by the European Commission on the basis of Art. 258 TFEU. In both of them the Court of Justice found that Poland failed to fulfil its obligations to ensure effective judicial protection. In the course of time, there will be more and more CJEU rulings concerning the effects of changes in the Polish judiciary, as a number of Polish courts have referred questions to the Court for a preliminary ruling. The Court has recently responded to first of these questions (the case A.K. and Others).Footnote 40
In both infringements rulings the CJEU underlined the protection of the judges against removal from office, and analysed the mechanism to extend judge’s mandate after reaching the retirement age. The Court of Justice emphasised that the principle of irremovability requires that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term.Footnote 41 Though the CJEU admitted that the protection against the removal is not absolute, it nonetheless stressed that the interference with the principle can only be justified on ‘legitimate and compelling grounds’ and must satisfy the proportionality test.Footnote 42 Whether these substantive and formal conditions are met may now clearly be subject to European scrutiny.
The Court examined in detail the mechanism for extending the active service of a judge. The mechanism is acceptable and it is the exclusive competence of the Member State to decide whether to make use of it in the domestic system. However, EU members are not free to impose arbitrary conditions and rules of such prolongations; their competence is limited by the requirement to ensure that the procedure does not undermine judicial independence. Indeed, neither the rule of law nor the principle of judicial independence prohibits the use of such a procedure, even if the non-judicial (e.g. executive) bodies are involved in its application. Yet, it is prohibited to shape the procedure in such a way that it may interfere with the independence of a judge by tempting him or her, even potentially, to give in to external intervention or pressure.Footnote 43 A judge who considers himself to be fit to continue in active service may be inclined to rule in conformity with the expectations of those who will examine the request and/or decide on the prolongation. Recognising the deficiencies of the procedures to extend the mandate of the Supreme Court judges by the President of the Republic and the judicial activity of ordinary courts judges by the Minister of Justice, the CJEU pointed to the discretionary nature of the President’s and Ministerial powers, the lack of objective and verifiable criteria for their decisions, no obligation to state reasons for the decision and the lack of a judicial remedy against a possible refusal.Footnote 44
Another aspect of the Independence of the Supreme Court ruling which deserves special emphasis is that the examination whether judicial independence is preserved in a Member State, may also include checking what were the true aims of judicial reforms.Footnote 45 This is the case when serious doubts arise as to whether the aims declared by the government (e.g. standardizing the retirement age; improving the age balance of judges) justify the implementation of the specific measures, e.g. lowering the retirement age of judges, or granting a discretionary power to the political body to extend the active service of a judge. After all, a premature dismissal of judges appears not to be a very subtle means by the government to fill the ‘vacated’ judicial posts with their own appointees.Footnote 46 The examination of the actual aims focuses on the justification and the proportionality of the measures adopted. It covers not only the grounds for their application and the degree of discretion conferred on state bodies, but equally, other modalities of their implementation, e.g. compulsory nature, discriminatory effect, or retro-active application, as well as the results they may lead to (i.e. the removal of judges from the office).
In the most recent judgment A.K. and Others, delivered in the preliminary ruling procedure, the CJEU developed a method for assessing the independence of a judicial body.Footnote 47 Referring to the functioning of the newly established Disciplinary Chamber of the Supreme Court, but also to the National Council of the Judiciary, which participated in its staffing, the CJEU indicated the criteria for assessing, whether the body preserves its independence, ergo, whether it is in fact a court in the meaning of EU law.Footnote 48 In keeping with the terms of the judicial dialogue based on Article 267 TFEU, the CJEU left it up to the national court to carry out the assessment and draw conclusions.Footnote 49 The consequences of the CJEU ruling and the subsequent domestic judgments will be of major importance for both national and European administration of justice.