It can be argued that an obligation for an executing court to conduct an individual assessment in case of systemic deficiencies of the judiciary in other Member States reverses the logic of the mutual trust developed by the CJEU (Sect. 4.1). Furthermore it is not the proper test to protect the rule of law due to two reasons. Firstly (Sect. 4.2), there is a substantial difference between fundamental rights and the independence of the judiciary. Infringements of the latter require other legal mechanisms of protection deterring a Member State from restricting judicial independence. Secondly (Sect. 4.3), the individual test is often not feasible in the European judicial area as some other acts providing for recognition of judgments in the EU do not contain the mechanisms of refusal of recognition or execution. A broader perspective should be taken as Polish institutional changes affecting judicial independence may influence all twenty-six EU acts providing for mutual recognition of judgments.
4.1 Regular Mutual Control Contrary to the Spirit of Mutual Trust
According to the CJEU the principle of mutual trust has a fundamental importance and ‘requires (…) each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.Footnote 15 But according to para. 69 of the LM judgment, when the issuing Member State has been the subject of a (well) reasoned proposal adopted by the Commission pursuant to Article 7(1) TEU,Footnote 16 the executing court is obliged to pursue a regular control. The fact of starting the Article 7 TEU procedure thus rebuts the presumption of mutual trust as the individual assessment is required in every case in which the person subject to EAW pleads it.Footnote 17
Perhaps the CJEU treated this obligation as a tool of pressure on the Member State restricting the independence of the judiciary contrary to the recommendations of the Commission—applied until the decision on the basis of Article 7(2) TEU is taken. But a regular control of judicial decisions from other Member States reverses the logic of mutual trust and can impair it in the long term (as taking a decision on the basis of Article 7(2) TEU which requires unanimity is not very probable). From the perspective of mutual trust a better solution would be if a decision of a Member State to restrict the independence of the courts (assessed as systemic deficiencies) implied a temporary suspension of its participation in all legal acts based on mutual trust in the administration of justice.
4.2 Substantial Difference Between Fundamental Rights and the Independence of the Judiciary
The answer in the LM judgment was based on the interpretation of Article 1 (3) of the EAW framework decision which states that this act shall not modify ‘the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’.Footnote 18 But there is a substantial difference between fundamental rights and the independence of the judiciary. Both values are certainly interconnected: the independence of the judiciary is in particular a part of the right to effective judicial protection. But it is not limited to this aspect. Fundamental rights are entitlements of individuals and it is therefore possible to verify whether they are ensured in individual situations. The independence of the judiciary is important in an individual case, but it also remains a key element of the State’s system, indispensable to ensuring the right balance between public and private interests. In the EU, it also guarantees securing effective legal protection in the fields covered by Union law. It is important especially if the executive power in a Member State openly declares the protection of its own nationals and ignores the European citizenship context. For example, in the case of a child abduction to another State the principle is that the authority shall order the return of the child forthwith save for exceptional cases.Footnote 19 But the Polish government treats children who have a Polish parent as Polish children (ignoring the parent of other nationality) and does not hide the wish that they stay in Poland. A law on the central authority in family mattersFootnote 20 was recently adopted to enable the Ministry of Justice to supervise judicial proceedings in child abduction cases.Footnote 21 It provides, amongst others, for the right of the Ministry to inquire courts about pending cases and for the obligation of the courts to answer immediately.Footnote 22 The purpose of such supervision is clear from the title of a Ministry leaflet—‘Stop transferring Polish children abroad’.Footnote 23 The influence of the executive on the judiciary can diminish the protection of rights stemming from EU law including the right to equal treatment.
In LM the CJEU could have stated that the European area of justice is based on a high level of mutual trust in the administration of justice, but at the same time on the responsibility of Member States to ensure independence of the courts. Such an obligation was recently confirmed by the CJEU in the case Associação Sindical dos Juízes Portugueses (ASJP).Footnote 24 In this case the judicial independence was derived mainly from Articles 2, 4(3) and 19 TEU, while Article 47 of the Charter was treated only as a subsidiary source. The LM judgment takes Article 2 TEU as a starting point,Footnote 25 repeats the statements of the ASJP judgmentFootnote 26 and confirms the importance of judicial independence in the context of the EAW.Footnote 27 But these general statements do not find expression in the conclusions of the LM case. In the answer given to the Irish court, judicial independence is reduced to the right of an individual to an independent court as a part of a right to a fair trial.Footnote 28 It is a step back in comparison to the ASJP judgment.
Fortunately, a broader perspective on the independence of the judiciary is taken by the CJEU in a subsequent case relating to the rule of law deficiencies in Poland. A judgment in the Commission v. PolandFootnote 29 case confirms the importance of Article 19(1) TEU as a main source of obligation of maintaining independent courts by Member States. The most important consequence is a broader scope of application. While fundamental rights (including Article 47 of the Charter) are applied only when Member States are implementing Union law,Footnote 30 Article 19(1) TEU ‘refers to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter’.Footnote 31 The CJEU explained explicitly that the national body falls within the fields covered by EU law if it may be called upon to rule, as a court or tribunal, on questions concerning the application or interpretation of EU law.Footnote 32 As almost any court in Member States can nowadays rule on questions of EU law, each Member State is obliged to ensure that its judiciary as a whole must meet the requirements of effective judicial protection. The CJEU underlined the interdependence between the requirement of independence of the courts stemming from Article 19(1) TEU and the right to effective judicial protectionFootnote 33 but the Commission v. Poland judgment shows clearly that the former is something more than the fundamental right of an individual.
4.3 Individual Assessment Often Not Feasible in the European Judicial Area
The Irish question relates only to the EAW, but a broader perspective shall be taken as the restriction of independence of the judiciary has a potential impact on at least 25 acts providing for mutual recognition of judgments. Mutual trust in the administration of justice is the guiding principle of nine framework decisions, two directives related to mutual recognition in criminal matters, and 14 regulations governing mutual recognition in civil matters. In criminal matters there are in chronological order: Directives on European Investigation OrderFootnote 34 and European protection orderFootnote 35 and framework decisions on: mutual recognition of decisions on supervision measures,Footnote 36 decisions rendered in the absence of the person concerned at the trial,Footnote 37 recognition of judgments imposing custodial sentences,Footnote 38 supervision of probation measures and alternative sanctions,Footnote 39 taking account of convictions in the course of new criminal proceedings,Footnote 40 confiscation orders,Footnote 41 mutual recognition to financial penalties,Footnote 42 orders freezing property or evidence,Footnote 43 European arrest warrant.Footnote 44 In civil matters there are regulations on: insolvency proceedings,Footnote 45 general civil matters (the so-called Brussels IFootnote 46), parental responsibility and divorce (Brussels II bis),Footnote 47 the European Enforcement Order (EEO),Footnote 48 the European Order for Payment (EOP),Footnote 49 small claims,Footnote 50 maintenance obligations,Footnote 51 the Brussels I bis Regulation,Footnote 52 the succession,Footnote 53 the European protection order,Footnote 54 European Account Preservation Order,Footnote 55 new regulation on insolvency proceedings,Footnote 56 matrimonial property regimes,Footnote 57 property consequences of registered partnerships.Footnote 58
All acts introducing mutual recognition of judgments relate to judgments of courts/tribunalsFootnote 59 or judicial authority.Footnote 60 This notion was considered by the CJEU as an autonomous notion of EU law and interpreted several times in both civil and criminal cases. In the cases Ibrica ZulfikarpašićFootnote 61 and Pula Parking,Footnote 62 the Luxembourg Court stated that, due to mutual trust, EU regulations require ‘that judgments the enforcement of which is sought in another Member State [be] delivered in court proceedings offering guarantees of independence and impartiality’. In two cases relating to criminal matters—KovalkovasFootnote 63 and PoltorakFootnote 64—the CJEU stated that the term ‘judiciary’ ‘must (…) be distinguished, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, from the executive’. These requirements are difficult to reconcile with the statement of the Venice Commission quoted at the beginning of this chapter that Polish reforms ‘enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice’.
The most important issue is that a level of integration in the field of judicial cooperation is so high that the judgments issued in one Member State have full effects in other Member States. In civil cases the majority of judgments are automatically recognised and enforceable in the other Member States. In all EU acts on mutual recognition, the review of jurisdiction of another Member State or of the content of the judgment to be recognized is prohibited. In some legal instruments, there are even no legal mechanisms allowing recognition/execution to be refused (for example in the case of maintenance or Article 42 of 2201/2003 regulation relating to child return decisions). The courts in Member States are thus often defenceless to judgments coming from other Member States as there is no proceeding in which they could conduct an individual assessment. An obligation of individual assessment is not suitable to protect other Member States which are obliged to recognise judgments originating from a Member State restricting judicial independence.