Can the European Union Save the Independent Judges?

By the time of the “big bang” accession in 2004, when ten new member states entered the European Union, it seemed that the fate of East-Central Europe was settled. From that time forward, these states were certified as democracies in good standing. But before the first decade was out on the accession, it became painfully clear that a consolidated democracy could come unraveled. Hungary’s constitutional system began imploding shortly after 2010 and in 2015 Poland began a short, sharp slide toward autocracy. In Hungary and Poland, parties with autocratically inclined leaders were voted into power. Both Viktor Orbán and Jarosław Kaczyński lied about their revolutionary ambitions before they were elected. Once in office, both began attacking judiciaries which were poised to hold them to account under the democratic constitutions they inherited.

In Hungary, the new constitution, adopted only by the governing majority, rapidly removed virtually all of the checks on executive power that the first democratic constitution of 1989-1990 had managed to install. By spring 2013, the Constitutional Court was effectively neutralized and once it was captured, the ordinary judiciary was dismembered. Now establishing a new system of administrative courts is on the agenda.

In a move reminiscent of Hungary’s strategy for judicial capture, Polish government brought forward new laws to make the Constitutional Tribunal politically dependent and the government refused to publish many of the court decisions. And once the term of the Tribunal’s president expired, the Tribunal was quickly captured by the government. After the destruction of the Tribunal’s independence, the ordinary judiciary came next.

All of these attacks on the judiciaries in both countries were reported in real time. European institutions knew what was happening every step of the way; the Venice Commission performed assessments of each major legal change quickly and professionally. But the institutions of the European Union that could have sanctioned these countries took no effective steps to make the destruction stop.

In the Hungarian case the most aggressive action taken by the European Commission was the expedited infringement procedure as the government fired judges en masse by lowering their retirement ages. The Court of Justice of the EU held that premature judicial retirements were a violation of EU law on age discrimination (C-286/12), so Hungary paid compensation but was able to avoid restoring the most important judges to their prior posts and was able to keep all of its newly appointed judges.

The Commission, after its experience with Hungary, created the new Rule of Law Framework to give itself the leverage to act the next time a member state started attacking basic European values and to assess whether the member state should be subjected to a warning under Article 7 of the Treaty on the European Union (TEU). Article 7(1) allows the Council to give a formal warning to any country if it finds that there is a risk of a breach of European values. If that doesn’t have the desired effect, it can impose sanctions and suspend voting rights under Article 7(2).

In the case of Poland the Commission activated the Article 7(1) procedure. The European Parliament indicated its readiness to support Council action, and it also adopted the “Sargentini Report” triggering Article 7(1) with regard to Hungary. But Article 7(1) still hangs in the air in the EU institutions. Invoking Article 7(1), with its four-fifths vote of member states is a political heavy lift, given that the Council – where member states are represented as member states – had never seen fit to publicly condemn either Hungary or Poland for failing Europe’s basic constitutional commitments. It seems that member states simply do not act against other member states on matters that look like purely internal affairs.

But the attacks on the judiciaries are not purely internal affairs. National judiciaries are the institutions through which EU law is enforced throughout the Union. They should neutrally enforce the law – whether national or EU law. When those with legal claims believe that their EU law rights have been violated, they must go to the national courts, not to the EU courts, for an effective remedy. The EU courts handle a relatively small slice of EU-law cases; the vast majority go through the national courts for resolution. National judiciaries are, therefore, also EU judiciaries. If they are disabled, the member states are not the only ones who suffer, but the EU suffers too because its writ does not run throughout the EU if the domestic courts do not ensure uniform compliance with EU law. This is what a recent Court decision (C-64/16) acknowledged by holding that national judiciaries have a role in both EU law and national law – and EU law requires them to be independent.

The Commission has recently referred to this EU law requirement when alleged that Poland had violated its legal obligations to maintain an independent judiciary. The Commission initiated infringement proceedings and asked the Court to suspend implementation of the law that forces the retirement of one-third of the Supreme Court judges pending the outcome of the case and to order that authorities restore “Poland’s Supreme Court to its situation before 3 April 2018, when the contested new laws were adopted.” The Court agreed and issued an interim measure ordering Polish authorities to suspend implementing the disputed law (C-619/18). It was an important step to avoid what had already happened in Hungary: the completed reshuffling of the judiciary with judges forced into early retirement and with newly appointed judges remaining in the bench.

The Court’s final decision is yet to come, but there is some hope. With the Court elevating the infringement action so that it can be used to enforce constitutional-level values of the EU, the Commission has been given a way to save the independent judges that does not rely on the courage of the member states to challenge each other. And if Poland fails to comply with the Court decision, the Commission can ask the Court to levy large fines for every day that Poland remains in non-compliance.

There are good reasons to be optimistic about the political support of these EU procedures. According to the poll conducted for Euronews by Pulzus, 56 percent of Hungarian respondents believed that in September 2018 the European Parliament passed a fair decision by launching proceedings against Hungary. And surveys by Polish pollster CBOS show that Poland is still one of the most pro-EU countries despite disciplining actions taken by the EU. With support from Hungarian and Polish citizens, the EU institutions should take every possible legal step to put an end to the attacks on independent judges.

A German version of this article appeared in: WZB Mitteilungen, Heft 162, Dezember 2018, S. 74-75. Its narrative is drawn from Kriszta Kovács/Kim Lane Scheppele (2018): “The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union”. In: Communist and Post-Communist Studies 51(3), pp. 189-200. It is available here.

Written by

Kriszta Kovács is a Research Fellow of the Research Professorship "Global Constitutionalism" at the WZB and a Senior Research Fellow at the Cluster of Excellence "Contestations of the Liberal Script (SCRIPTS)".
Website at the WZB

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