Defending Judicial Independence in the EU
Legal scholars have watched with alarm as systemic violations erode the rule of law in parts of the European Union. With governments in Hungary and Poland working to systemically weaken judicial oversight and independence, judges, lawyers, and civil society organizations are joining forces to demand a response from pan-European institutions.
These efforts are bearing fruit. In 2018, the European Court of Justice (ECJ) ruled in Associação Sindical dos Juízes Portugueses, a case informally known as Portuguese Judges, that EU member states’ judicial systems must be free from interference and political pressure. Legal experts interpreted the ruling as the Court’s response to rule of law backsliding and authoritarian tendencies at EU Member State level, particularly in Hungary and Poland.
As Laurent Pech, Dean of Law and Head of the Sutherland School of Law at University College Dublin, wrote at the time, “This judgment essentially establishes a general obligation for member states to guarantee and respect the independence of their national courts and tribunals.”
That judgment, and Pech’s expertise, were at the center of a recent CEELI Institute workshop in Prague that brought together judges, civil society actors, and subject matter experts from eight member states–Bulgaria, Croatia, the Czech Republic, Hungary, Poland, Romania, Slovakia, and Slovenia–to discuss how best to support and defend judicial independence in the EU.
“The focus of this workshop was legal remedies–EU remedies and EtCHR [European Court of Human Rights] remedies,” said Pech. “It’s important to take a step back and spend a day or two just reflecting on how certain governments have sought to systemically undermine judicial independence and the concomitant evolution of the case law of two European courts in this respect, which, one must add, has grown exponentially in the past few years.”
High on the agenda were reviews of cases arising since the Portuguese Judges decision. These included a pending EU general court case, T-530/22, which alleges that Poland’s recovery plan approved by the EU in June 2022 contains inadequate safeguards regarding the rule of law.
“One of the main problems for anyone new to the rule of law field is the number of judgments and orders that have been adopted in the past few years,” said Pech. To overcome this barrier to entry, he suggested that participants read the ECJ’s twin judgments of February 2022 (cases C-156/21 and C-157/21). “These two judgments contain a summary which offers in just a few pages a very good, transversal overview of the Court’s key rulings since 2018,” he said. “It’s a good starting point.”
Through their case-by-case analysis of key decisions of the EU courts, Pech and workshop co-convenor David Kosař, Head of the Department of Constitutional Law and Political Science at Masaryk University, explained how the court has operationalized the rule of law to help secure member states’ compliance.
Discussions also focused on the availability of support and resources for individual judges, judicial councils, and judicial associations; advantages and shortcomings of defending judicial independence via EU judicial remedies; and EU strategic litigation brought by judges as applicants with support from academic networks.
“National judges are very busy and tend to specialize, as you would expect,” said Pech. “But when they are themselves the targets of state sponsored harassment or arbitrary proceedings and eventual sanctions, that’s a different place to be in. It’s difficult to take a step back and assess your options to be able to defend yourself. And this, I think, was the added value of this workshop.”
Other faculty during the April 3-4, 2023, course included Katrien Witteman, a criminal judge in the regional court of Maastricht, The Netherlands, and a representative of Judges for Judges, a Dutch foundation; Barbara Grabowska-Moroz, a research fellow at CEU Democracy Institute, in Budapest, Hungary; Judge Dariusz Mazur, who serves on the Third Criminal Division of the Regional Court in Krakow, Poland; and Małgorzata Majewska, a lawyer at the Free Courts Foundation.