Judge queries if EU law suits ‘today’s realities’

While the rule of law remains a cornerstone of the European project, some of the union’s foundational legislation may no longer be fully suited to present-day conditions, Mr Justice Gerard Hogan of the Supreme Court has said (4 December).

Speaking at a DCU law school event ‘The EU Social Contract in Uncertain Times: Protecting the Rule of Law and Democracy Post-Pandemic', the judge also outlined the growing body of case law on judicial independence from the Court of Justice of the European Union (CJEU).

Mr Justice Hogan traced major developments from the landmark Association of Portuguese Judges ruling of February 2018 to recent decisions involving Poland, Spain, and Ireland, at the event which was organised by Dublin European Law Institute (DE LI) at Dublin City University.

Opening the remarks, the judge referred to the European social contract.  

“While the rule of law is central to the functioning of democracy, I sometimes wonder whether certain cornerstone pieces of EU legislation – ranging from the Citizenship Directive to asylum rules and environmental impact assessment legislation – remain fully suited to today’s realities,” he asked.

Reassess

“These texts were drafted with the highest aspirations,” he added, “but the world has changed, and it may be time to reassess whether they still deliver as intended.

“That, however, is ultimately a matter of policy, and I will leave it there,” the Supreme Court judge said.

These measures were drafted with high ambitions, the judge said, but changing realities might justify policy reconsideration.

His speech addressed judicial independence as an EU constitutional requirement.

According to the judge, the CJEU’s involvement in this area stems from multiple treaty provisions.

The Treaty on European Union (TEU) identifies the rule of law as a founding value.

Article 19(2) TEU requires EU judges to be fully independent, which the court has interpreted as implying equivalent standards for national judges when they apply EU law.

Article 267 TEU presupposes that only an independent “court or tribunal” may send preliminary references.

Article 47 of the Charter of Fundamental Rights guarantees a right to an effective remedy before an independent and impartial tribunal.

Together, these provisions had enabled the CJEU to develop an autonomous EU standard of judicial independence, Mr Justice Hogan said.

Reviewing key cases, Mr Justice Hogan described the 2018 Association of Portuguese Judges decision as a turning point.

Although the case concerned salary reductions during Portugal’s austerity programme, it allowed the court to restate essential characteristics of judicial independence: institutional autonomy, protection from arbitrary removal, and remuneration appropriate to judicial functions.

Signalled direction

Earlier rulings had already signalled this direction.

In 2017, the court held that a Spanish court registrar, being subject to hierarchical instructions, lacked sufficient independence to qualify as a tribunal for the purposes of article 267.

Ireland’s Supreme Court has reached similar conclusions regarding social-welfare appeals officers, finding they lacked institutional guarantees of independence.

A major shift came in the Banco de Santander judgment, in which the CJEU reconsidered its earlier views on Spain’s tax tribunal (TEAC).

The Court ruled the TEAC was not sufficiently independent because the Ministry of Finance held decisive influence over appointments, and members could be reassigned following changes in government.

These structural issues, the judge said, were incompatible with EU standards.

Much of the subsequent case law had come from Poland, the judge added.

He highlighted the 2021 WB ruling, which concerned a judge seconded by Poland’s Minister of Justice, who also served as Public Prosecutor General.

Dual authority

Although member states may organise their judicial systems, the court found that the minister’s dual authority over prosecutors and seconded judges created an appearance of political influence.

This, the court ruled, breached EU requirements of independence.

By contrast, the court’s later TB Daka judgment took a different view. Secondment was acceptable, it held, where assignments were made by lot or by a court president, and where no links to prosecutorial authority existed.

According to the judge, WB was therefore a “special case” driven by the specific institutional overlap in Poland.

The judge also referred to a recent Irish Supreme Court decision, Scully v Kukal, which addressed whether a Polish civil judgment could be recognised in Ireland when one Polish judge involved in the case had been seconded by the Minister of Justice.

The Irish court found no breach of EU law, distinguishing WB on the basis that the case was civil, the judge had been assigned by lot, and no evidence of executive interference was presented.

Systemic issues

The judge emphasised that systemic issues in a member state did not automatically invalidate all judicial cooperation; concrete prejudice must be established.

Concluding the address, Mr Justice Hogan told the DCU attendees that the expanding jurisprudence on judicial independence – particularly the extensive Polish litigation – illustrated enduring principles:

• Judges must be autonomous,
• Protected from improper influence, and
• Supported by institutional structures capable of maintaining public confidence.