June 27, 2018
By Pierre-Emmanuel Pignarre
Does the end justify the means?
Reflections on the Associação Sindical dos Juízes Portugueses Judgment (C-64/16)
In a remarkable ruling of 28 February 2018, the Court of Justice of the European Union gave a general definition of the concept of ‘judicial independence’ which is surprising for the legal basis on which it relies. By invoking Article 19(1) TEU, the Court of Justice proposes a solution which seems questionable, in particular regarding its legal reasoning.
Brief overview of the facts of the case
The trade union association of Portuguese judges brought a case before the national Supreme Administrative Court (Supremo Tribunal Administrativo) to challenge several administrative acts adopted pursuant to Article 2 of Law No 75/2014 of 12 September 2014, which concerned the temporary reduction in the amount of remuneration paid to high officials. Both members of the Constitutional Court and the Court of Auditors were also affected by this measure.
As this legislation was repealed by a new law that came into force on 1 October 2016, the trade union association, acting on behalf of the members of the Court of Auditors, requested the return of the sums deducted from their salary over the period covered by Law No 75/2014.
In support of their claims, they argued that the impugned salary reduction measures violated the principle of judicial independence as enshrined in Article 203 of the Portuguese Constitution and in Articles 19(1) TEU and 47 of the Charter of Fundamental Rights of the European Union. Given that the contested national provision fell within the scope of Union law, the referring court decided to ask the Court of Justice to give a preliminary ruling on the compatibility of such legislation with EU law, and more specifically with Articles 19(1) TEU and 47 of the Charter.
Providing a solution whereby general considerations seemed to prevail over individual interests, the Grand Chamber of the Court of Justice made a finding of compatibility of Portuguese legislation with Union law because of its limited application in time but also and above all its broad scope: it applied not only to the judges of the Court of Auditors but to all high officials (the President and the Prime Minister were equally affected by the legislation).
The Judgment rendered by the Court of Justice is significant on account of its broader implications, as it founds the concept of judicial independence on a questionable legal basis.
Article 19 (1) TEU as the legal basis for the principle of judicial independence in the European Union
The Court of Justice’s choice of legal basis is clearly stated in paragraph 29 of the Judgment where it explicitly refers to Article 19(1) TEU because of its wider scope, in particular with regard to Article 51(1) of the Charter, which is limited to measures implementing Union law. While being asked by the referring court to address both provisions, the Court decided only to consider Article 19 TEU.
After having reformulated the question, the Court expounded the content of Article 19(1) TEU, which acts as an instrument for the implementation of the rule of law in the European Union (paragraph 32). Whereas Article 19 (1) TEU could have been perceived as an essentially procedural provision, it becomes, when read together with Article 2 TEU on the values of the Union, a substantial provision of judicial independence in the EU.
Article 19 TEU was also selected because it ensures effective judicial review within the EU as an essential aspect of the rule of law, which means that it becomes a substantial provision (paragraph 36). It follows that the notion of independence applies both at the supranational and national level, since it is “inherent in the task of adjudication” (paragraph 42).
Having defined the scope of the concept, the Court delivered a substantial definition, linking independence to the autonomy of the judiciary, characterized by the absence of hierarchy. It follows that “the receipt by those members [i.e. judges] of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence” (paragraph 45).
The lack of any reference to the case-law of the European Court of Human Rights and its notion of a juge légal in the Judgment is notable, particularly in light of the fact that in a case involving the independence of a judge of the former European Union Civil Service Tribunal, the General Court referred to the Strasbourg case law on judicial independence. It looks like the Court wanted to develop its own definition of judicial independence specific to the framework of the European Union.
Legal coherence neglected
The exclusive legal basis chosen by the Court of Justice raises many questions, in particular when one examines the conclusions of Advocate General Saugmandsgaard, which, while leading to a similar result, relied on Article 47 of the Charter, considering that Article 19 TEU was essentially a procedural provision (Conclusions, paragraph 63). He argued that the national law was, albeit indirectly, a measure implementing Council Decision 2012/409 of 10 July 2012 concerning the granting of financial assistance to Portugal in order to remedy its excessive government deficit (Conclusions, paragraph 53).
This reasoning is convincing because Article 47(2) of the Charter refers to the right to a fair trial, a substantive provision more in line with the matter of the remuneration of the highest judges. This reasoning is also persuasive because it has the merit of consistency with regard to primary law. The letter of Article 19(1) TEU should not be interpreted as a principle of judicial independence against which reductions in the salaries of members of the judiciary would be assessed. Article 2 TEU should not equally be used to give content to this paragraph which it does not have. Lastly, how do the provisions relate to one another if Article 19 TEU were to be regarded as a substantial standard substituting for Article 47 of the Charter? Should we then consider that Article 19 TEU organizes the structure of the European judicial architecture and as such transcends other provisions of primary law?
If the above questions remain unresolved, some answers could be given in light of the current context in the EU. It is well-known that on 20 December 2017 the Commission initiated a procedure for the rule of law in Poland, in particular with regard to the situation of the judiciary, in accordance with Article 7 TEU. The situation of the Polish judiciary is furthermore put before the Court of Justice in the context of a preliminary ruling, in particular regarding the principle of mutual trust in the execution of European arrest warrants.
Bearing in mind these recent events, one could think of the solution rendered by the Court of Justice as an obiter dictum, delimiting the acceptable scope of intervention of national governments in the judiciary. Under this approach, the reference to Article 19 TEU would serve as a political explanation for a solution that is questionable from a legal perspective. The choice of Article 19 TEU would therefore be a strong political choice, as a warning to national governments of the EU, considering that the principle of judicial independence is inherent to the rule of law. Therefore, measures affecting judicial independence can be scrutinized by the Court, not only in cases of application of Union law, as the reference to Article 47 of the Charter would have required, but in all other situations involving EU law.
Although the result is more than commendable, does this mean that the way the Court came to this finding must be approved? In other words, does the end justify the means?
Between the fundamental requirement of independence of the judiciary and the necessary coherence of the legal reasoning of a court that has the last say, there is a balance to be respected, itself inherent in the maintenance of fair judicial review, and therefore the rule of law.
 GC, FV. c./ Conseil, 23 January 2018, T-639/16 P, ECLI:EU:T:2018:22, especially paras. 72-76. The Judgement has been challenged before the Court of Justice in accordance with the review of decisions procedure, so that the finding of the Court cannot be held as final.
 See Case 216/18 PPU. The case is still pending but the hearing already took place on 1st June. The Judgement is expected before the end of the summer. For a stimulating account of the hearing, see A. DORI, « Hic Rhodus, hic salta: The ECJ Hearing of the Landmark “Celmer” Case », Verfassungsblog, https://verfassungsblog.de/hic-rhodus-hic-salta-the-ecj-hearing-of-the-landmark-celmer-case/Frédéric Allemand