Week 1: The EU Constitution in Crisis
Les Verts
What is the case about
● First case where ECJ rules that EU is based on RULE OF LAW
● Les Verts challenged political party funding from EP → system was unfair in distribution against
newer parties = EP was not entitled to give funding
Facts
● Les Verts brings an action for the annulment of a EP decision before the ECJ
○ But → EP was not mentioned in Treaty article about action for annulment
Question: does the Court have jurisdiction to determine an action for annulment, against a measure adopted
by the EP?
Decision/rule/judgement
● 1982 decision on distribution of funds for electoral campaigns = adopted by organs of EP →
measures adopted by the EP itself
● CJEU → could rule on the matter as it has the authority to review legality of measures adopted
by institutions
○ EEC → is a community based on the rule of law
○ Treaty → established complete system of legal remedies and procedures designed to
permit the CJEU to review the legality of measures adopted by the institutions
● Art 173 TFEU → Parliament not mentioned
○ But → an action for annulment may lie against measures adopted by the EP intended to
have legal effects on third parties
○ Meaning = measures of EP could also exceed limits of EP power = action for annulment
against measure EP is allowed
■ If not = contrary to treaty if no parties could challenge EP measures
● Directly concerned? → yes
● Individually concerned? → yes
○ Issue → funds would be divided between groups represented in 1979 and those
participating in the 1984 election
○ But → Les verts already existed in 1982 → it was preparing for 1984 elections
○ So → 1982 Decision applies to all political groups, regardless of their representation in
1979 Parliament
○ If not → it would lead to inequality between groups
○ Not just groupings which were represented at the date of the adoption of the contested
measure are individually concerned by it → unequal distribution
● But → reimbursement of expenses are within MS competences
(para.23) → Treaties constitutional charter of the EU
, Portuguese Judges → Associação Sindical dos Juízes Portugueses v. Tribunal de Contas
Issue
● Was the Portuguese legislature allowed to lower salaries of judges during the sovereign debt crisis?
● whether the principle of judicial independence precludes general salary reduction measures from
being applied to the members of a Member State’s judiciary
Facts
● Sovereign debt crisis portugal →
○ temporary lowering of salaries of portuguese judges + employees in the public sector
● Judges (plaintiff) →
○ challenged action by Portuguese legislature as violating rule of law (Art. 2 TEU)
○ asked for an annulment of these measures
○ Argument → salary-reduction measures infringe ‘the principle of judicial independence’
enshrined in the Portuguese Constitution + in EU law (Art. 19(1) TEU and Art. 47 Charter
Question: must the principle of judicial independence be interpreted as meaning that it precludes the
measures to reduce remuneration that are applied to the judiciary in Portugal?
Decision/judgement/Rule
● Article 19 TEU →
○ An expression of the value of the rule of law stated in Article 2 TEU
○ → responsibility for ensuring judicial review in EU legal order to CJEU and national
courts and tribunals (32)
○ MS → ensure effective judicial protection
○ Principle of effective judicial protection → general principle EU law
○ MS → obliged to ensure application of EU law and that courts meet the requirements of
effective judicial protection in accordance with art.19 (37/40)
○ To ensure protection → Court’s independence is essential
● Independence →
○ body exercises judicial functions autonomously, without being subject to any other
body → protected against external interventions or pressure liable to impair the
independent judgment of its members and to influence decision (44)
● Portugal
○ Salary-reduction measures → adopted because of mandatory requirements linked to
eliminating the Portuguese State’s excessive budget deficit (46)
○ measures were applied not only to members of the Tribunal but to various public office
holders and employees performing duties in the public sector
○ measures cannot be perceived as being adopted just to members Tribunal de Contas
■ Temporary in nature (50)
● Thus → the salary-reduction measures do not impair the independence of the members of the
Tribunal de Contas
, Polish Supreme Court → Commission v. Poland
Parties
● Plaintiff: European Commission
● Defendant: Poland
Issue: Whether the Polish law was in violation of article 19(1) TEU?
Facts
● 2018 → new law was passed lowering the retirement age for judges on the Polish Supreme
Court from 70 years to 65 years → applied to all judges
○ If they wished to maintain their function → apply to the president
● The Commission →
○ concerns regarding reforms to Polish judiciary introduced by the Polish government
○ argued that this violates the rule of law
○ → initiated a Treaty Infringement Action (Art. 258 TFEU) against Poland for violating
Article 19(1), second paragraph TEU
■ → obligation for EU Member States to organise ‘effective legal protection
● The Court → MS → required to ensure that national bodies respect judicial independence
● Poland
○ Argued that the national rules have no link with EU law (40)
○ Organisation of national justice system is a MS competence (38)
Decision/judgement/rule
● CJEU → to ensure that specific characteristics and autonomy of the EU legal order are
preserved, Treaties have established a judicial system intended to ensure consistency and
uniformity in the interpretation of EU law (44)
● Article 267 TFEU → securing consistency and uniformity of EU law
● Article 19 TEU → gives expression to the value of the rule of law affirmed in Art. 2 TEU +
entrusts responsibility for ensuring application of EU law to national Courts and the CJEU (47)
○ principle of effective judicial protection of individuals’ rights → general principle of
EU law (49)
● organisation justice in MS → MS competence = But → MS required to comply with obligations
deriving from EU law (52)
○ MS → must ensure that courts meet effective judicial protection (55)
2 complaints: Poland infringed art. 19(1) TEU & 47 Charter since:
1. The New Law infringed the principle of judicial independence and irremovability of judges
● Lowering retirement age of judges was to apply to judges in post who were appointed
to that court before the date on which that Law entered into force
● → infringed principle of judicial independence & principle of irremovability judges
, ● lowering retirement age → changed Court’s composition → infringing principle
irremovability of judges as a guarantee essential to their independence → infringing
second subparagraph of Art. 19(1) TEU (63)
Findings of the court
● Courts must be independent:
a. Independence
- External in nature
- Courts exercises functions autonomously → without external
interventions
b. Impartiality
- Internal in nature
- equal distance from the parties to the proceedings & their interest
● principle of irremovability of judges → Judges may remain provided that they did not
reach the obligatory retirement age
○ But reform poland → lowering the retirement age applies to judges already
serving court → judges ceasing to carry out their judicial office → concerns
regarding compliance with the principle of the irremovability of judges (78)
● Poland →
○ argues that it was to standardise that age with those of all workers in poland
● Court →
○ the 2 measures give impression that the aim is to exclude a group of judges
○ Lowering age → impact on composition → not justified by legitimate objective
→ undermines principle irremovability of judges
○ Thus → breach of art. 19(1) TEU
2. New Law grants President discretion to extend judicial activity of judges beyond retirement age
fixed in the law
Findings of the court
● President → power to decide whether to grant extension → not sufficient to conclude
that that principle has been undermined (111)
● But → procedural rules must preclude direct influence that affect judges decisions (112)
● → this is not the case (113) → no independent body + external influence (115)
● → breach of art. 19(1) TEU
Conclusion
● Supreme Court of Poland → did not provide sufficient guarantees of independence
○ could not ensure effective protection against decisions that may affect the
independence of judges
○ Polish government's reforms → incompatible with EU law + threat to independence of
the Polish judiciary
Les Verts
What is the case about
● First case where ECJ rules that EU is based on RULE OF LAW
● Les Verts challenged political party funding from EP → system was unfair in distribution against
newer parties = EP was not entitled to give funding
Facts
● Les Verts brings an action for the annulment of a EP decision before the ECJ
○ But → EP was not mentioned in Treaty article about action for annulment
Question: does the Court have jurisdiction to determine an action for annulment, against a measure adopted
by the EP?
Decision/rule/judgement
● 1982 decision on distribution of funds for electoral campaigns = adopted by organs of EP →
measures adopted by the EP itself
● CJEU → could rule on the matter as it has the authority to review legality of measures adopted
by institutions
○ EEC → is a community based on the rule of law
○ Treaty → established complete system of legal remedies and procedures designed to
permit the CJEU to review the legality of measures adopted by the institutions
● Art 173 TFEU → Parliament not mentioned
○ But → an action for annulment may lie against measures adopted by the EP intended to
have legal effects on third parties
○ Meaning = measures of EP could also exceed limits of EP power = action for annulment
against measure EP is allowed
■ If not = contrary to treaty if no parties could challenge EP measures
● Directly concerned? → yes
● Individually concerned? → yes
○ Issue → funds would be divided between groups represented in 1979 and those
participating in the 1984 election
○ But → Les verts already existed in 1982 → it was preparing for 1984 elections
○ So → 1982 Decision applies to all political groups, regardless of their representation in
1979 Parliament
○ If not → it would lead to inequality between groups
○ Not just groupings which were represented at the date of the adoption of the contested
measure are individually concerned by it → unequal distribution
● But → reimbursement of expenses are within MS competences
(para.23) → Treaties constitutional charter of the EU
, Portuguese Judges → Associação Sindical dos Juízes Portugueses v. Tribunal de Contas
Issue
● Was the Portuguese legislature allowed to lower salaries of judges during the sovereign debt crisis?
● whether the principle of judicial independence precludes general salary reduction measures from
being applied to the members of a Member State’s judiciary
Facts
● Sovereign debt crisis portugal →
○ temporary lowering of salaries of portuguese judges + employees in the public sector
● Judges (plaintiff) →
○ challenged action by Portuguese legislature as violating rule of law (Art. 2 TEU)
○ asked for an annulment of these measures
○ Argument → salary-reduction measures infringe ‘the principle of judicial independence’
enshrined in the Portuguese Constitution + in EU law (Art. 19(1) TEU and Art. 47 Charter
Question: must the principle of judicial independence be interpreted as meaning that it precludes the
measures to reduce remuneration that are applied to the judiciary in Portugal?
Decision/judgement/Rule
● Article 19 TEU →
○ An expression of the value of the rule of law stated in Article 2 TEU
○ → responsibility for ensuring judicial review in EU legal order to CJEU and national
courts and tribunals (32)
○ MS → ensure effective judicial protection
○ Principle of effective judicial protection → general principle EU law
○ MS → obliged to ensure application of EU law and that courts meet the requirements of
effective judicial protection in accordance with art.19 (37/40)
○ To ensure protection → Court’s independence is essential
● Independence →
○ body exercises judicial functions autonomously, without being subject to any other
body → protected against external interventions or pressure liable to impair the
independent judgment of its members and to influence decision (44)
● Portugal
○ Salary-reduction measures → adopted because of mandatory requirements linked to
eliminating the Portuguese State’s excessive budget deficit (46)
○ measures were applied not only to members of the Tribunal but to various public office
holders and employees performing duties in the public sector
○ measures cannot be perceived as being adopted just to members Tribunal de Contas
■ Temporary in nature (50)
● Thus → the salary-reduction measures do not impair the independence of the members of the
Tribunal de Contas
, Polish Supreme Court → Commission v. Poland
Parties
● Plaintiff: European Commission
● Defendant: Poland
Issue: Whether the Polish law was in violation of article 19(1) TEU?
Facts
● 2018 → new law was passed lowering the retirement age for judges on the Polish Supreme
Court from 70 years to 65 years → applied to all judges
○ If they wished to maintain their function → apply to the president
● The Commission →
○ concerns regarding reforms to Polish judiciary introduced by the Polish government
○ argued that this violates the rule of law
○ → initiated a Treaty Infringement Action (Art. 258 TFEU) against Poland for violating
Article 19(1), second paragraph TEU
■ → obligation for EU Member States to organise ‘effective legal protection
● The Court → MS → required to ensure that national bodies respect judicial independence
● Poland
○ Argued that the national rules have no link with EU law (40)
○ Organisation of national justice system is a MS competence (38)
Decision/judgement/rule
● CJEU → to ensure that specific characteristics and autonomy of the EU legal order are
preserved, Treaties have established a judicial system intended to ensure consistency and
uniformity in the interpretation of EU law (44)
● Article 267 TFEU → securing consistency and uniformity of EU law
● Article 19 TEU → gives expression to the value of the rule of law affirmed in Art. 2 TEU +
entrusts responsibility for ensuring application of EU law to national Courts and the CJEU (47)
○ principle of effective judicial protection of individuals’ rights → general principle of
EU law (49)
● organisation justice in MS → MS competence = But → MS required to comply with obligations
deriving from EU law (52)
○ MS → must ensure that courts meet effective judicial protection (55)
2 complaints: Poland infringed art. 19(1) TEU & 47 Charter since:
1. The New Law infringed the principle of judicial independence and irremovability of judges
● Lowering retirement age of judges was to apply to judges in post who were appointed
to that court before the date on which that Law entered into force
● → infringed principle of judicial independence & principle of irremovability judges
, ● lowering retirement age → changed Court’s composition → infringing principle
irremovability of judges as a guarantee essential to their independence → infringing
second subparagraph of Art. 19(1) TEU (63)
Findings of the court
● Courts must be independent:
a. Independence
- External in nature
- Courts exercises functions autonomously → without external
interventions
b. Impartiality
- Internal in nature
- equal distance from the parties to the proceedings & their interest
● principle of irremovability of judges → Judges may remain provided that they did not
reach the obligatory retirement age
○ But reform poland → lowering the retirement age applies to judges already
serving court → judges ceasing to carry out their judicial office → concerns
regarding compliance with the principle of the irremovability of judges (78)
● Poland →
○ argues that it was to standardise that age with those of all workers in poland
● Court →
○ the 2 measures give impression that the aim is to exclude a group of judges
○ Lowering age → impact on composition → not justified by legitimate objective
→ undermines principle irremovability of judges
○ Thus → breach of art. 19(1) TEU
2. New Law grants President discretion to extend judicial activity of judges beyond retirement age
fixed in the law
Findings of the court
● President → power to decide whether to grant extension → not sufficient to conclude
that that principle has been undermined (111)
● But → procedural rules must preclude direct influence that affect judges decisions (112)
● → this is not the case (113) → no independent body + external influence (115)
● → breach of art. 19(1) TEU
Conclusion
● Supreme Court of Poland → did not provide sufficient guarantees of independence
○ could not ensure effective protection against decisions that may affect the
independence of judges
○ Polish government's reforms → incompatible with EU law + threat to independence of
the Polish judiciary
