The European Commission has adopted a Communication titled ‘Further strengthening the Rule of Law within the European Union’. In this 17 July 2019 document, the Commission sets out concrete initiatives grouped around three pillars: promoting a common rule of law culture; preventing rule of law problems; and responding effectively to breaches of the rule of law. Protection by and of the judiciary is paramount in this resolute vision of the way forward.
Niek van de Pasch
In its previous Communication of 3 April 2019, the Commission presented an overview of the existing rule of law toolbox and launched a consultation on necessary reforms. Among other rule of law principles, the Commission most notably stressed the importance of independent and impartial courts and effective judicial review. It recalled that the Court of Justice of the European Union (‘the Court’) ruled as early as 2006 that the notion of ‘judicial independence’ is an autonomous concept of EU law. This implies that judges must be protected against any external intervention that could jeopardise their independent judgment (ECLI:EU:C:2006:587, Wilson).
The Court recently built upon this foundation in a number of important judgments. It held for instance that Member States are required by EU law to ensure that their courts meet the requirements of effective judicial protection and that the independence of national courts is essential to ensure this concrete expression of the rule of law (ECLI:EU:C:2018:117, ASJP and ECLI:EU:C:2019:106, Escribano Vindel).
Subsequently, the Court has defined in further detail the requirements to guarantee judicial independence and impartiality. In this deepening case law, it notes their pivotal importance for both the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism and for secondary law instruments based on the principle of mutual trust (ECLI:EU:C:2018:586, L.M. and ECLI:EU:C:2019:110, R.H.).
The Commission lastly called attention to various interim measures suspending national reforms that would affect judicial independence (such as ECLI:EU:C:2019:531, Commission v. Poland) and further cases brought by national courts and the Commission now pending before the Court (including ECLI:EU:C:2019:551, concerning the legitimacy of the newly-created Disciplinary Chamber of the Polish Supreme Court).
Moving from the judicial to the political domain, the Commission attested that the rule of law is of vital importance in neighbourhood policy as well. More specifically, reinforcing the judiciary as a key institution is increasingly becoming a central theme in the EU’s efforts to promote reform towards meeting the Copenhagen criteria for accession. Against this backdrop, the Commission asked governmental institutions, professional organisations and civil society to weigh in on recent and future developments.
Over sixty written contributions were received and several debates took place within judicial networks and numerous other forums. Recapitulating the common ground arising out of this expert input, the Commission distilles some widely supported concerns: “The judiciary is at the heart of the rule of law, and attempts by political actors to undermine its independence and the binding force of its decisions by instigating political or other pressure on individual judges, by interfering in specific cases, by a failure to respect judicial decisions, or by a reopening of final judicial decisions, are familiar themes.”
Emphasizing the importance of commitment at the national level, the Commission envisions a more ambitious and exemplary supranational agenda: “Key principles, such as the independence of the judiciary and the separation of powers should be embedded in the political culture of Member States. When a general European standard can be brought to bear, it can be seen both as a benchmark to assess a possible shortcoming, and as guidance for a solution.”
Meanwhile, a Eurobarometer public opinion survey shows that more than eighty percent of EU citizens attach great importance to respect of the rule of law, and feel that it needs to be improved. The Commission has therefore decided on a series of measures to further strengthen the rule of law in Europe. Its brand new Communication sets out concrete initiatives grouped around three pillars: promoting a common rule of law culture; preventing rule of law problems; and responding effectively to breaches of the rule of law.
Judges for Judges will hereinafter shortly highlight the statements and intentions regarding the judiciary. (Further reading is recommended, starting from pages 5, 9 and 14 respectively.)
1. Common rule of law culture
The Commission aims to strengthen cooperation with judicial networks. Loyalty among institutions is after all a foundation stone for the rule of law. In essence, it is about the acceptance by one part of the state that others have legitimate functions which need to be respected. This fundamental principle can find itself under strain even when set out in laws or constitutions. Exchanges of expertise between judges in different Member States helps to build a sense of what this means in practice.
2. Preventing rule of law problems
The Commission plans to set up a so-called Rule of Law Review Cycle, including an annual Rule of Law Report covering all Member States. This collection of reports is accompanied by a dedicated follow-up with the European Parliament and the European Council. As an extension of this project, the Commission will further develop the EU Justice Scoreboard, which provides comparable data on the independence, quality, and efficiency of national justice systems.
3. Effective response to breaches
The Commission adopts a strategic approach to infringement proceedings, bringing cases to the Court as necessary. In the light of the time sensitivity of such cases, the Commission will not hesitate to request interim measures and expedited procedures when needed. Furthermore, the Commission calls on the European Parliament and the European Council to reflect on a collective way to managing Article 7 TEU cases with clear procedural rules.
In conclusion, the Commission calls on European and national authorities to respect and defend the role of judges in every aspect of society: “When national safeguards do not seem capable of addressing threats to the rule of law in a Member State, it is a common responsibility of the EU institutions and the Member States to take action to remedy the situation. There is a common interest in tackling issues such as threats to constitutional courts or judicial independence before they can compromise the implementation of EU law, policies or funding.”
Niek van de Pasch