Independence under Article 267 TFEU in the early days: a functional approach

As stated in the introduction, the notion of independence has a long history in the case law of the Court in the framework of the preliminary reference procedure. It features amongst the so-called Dorsch Consult criteria that the Court uses to establish whether a body that refers a question for a preliminary ruling qualifies as a ‘court or tribunal’ in the sense of Article 267 TFEU.Footnote ¹¹ In order to take part in the judge-to-judge dialogue laid down by that mechanism, the referring body must be established by law; it must be permanent; its jurisdiction must be compulsory; its procedure must be inter partes; it must apply rules of law; and it must be independent.Footnote ¹²

The importance of the independence criterion was stressed by current President of the Court of Justice Koen Lenaerts in a recent speech:

It is, however, questionable whether this idea of trust truly constituted the foundation of the Court’s reasoning when it first adopted this criterion in Pretore di Salò ^{Footnote 14} and Corbiau. ^{Footnote 15}

In Pretore di Salò, the Court explained that it can only reply to requests for a preliminary ruling ‘if that request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law’. ^{Footnote 16} In his Opinion in Corbiau, Advocate General Darmon clarified that ‘the idea of independence is an inherent element of the judicial function’. ^{Footnote 17} Independence is thus seen as an inseparable aspect of the judicial function (in contrast to the administrative function), and national courts and tribunals can only make use of the preliminary reference procedure when they are required to resolve a legal dispute before them.Footnote ¹⁸ The original rationale behind the independence requirement thus seems to be rather straightforward: the proceedings before the national body have to be judicial in nature, and in order for them to be judicial, that body inherently has to be independent. Consequently, pinning the original rationale underlying the concept of independence on the idea of trust, like President Lenaerts did in his speech, rather than on the requirement that the proceedings before the national body must be judicial in nature, seems to be an anachronism.

In Corbiau, the Court then clarified how to assess whether the requirement of independence is fulfilled substantively. ^{Footnote 19} In that judgment, independence meant that the body seeking the preliminary ruling should act as a third party in relation to the authority which adopts the decision forming the subject-matter of the proceedings. ^{Footnote 20} Following this reasoning, a reference made by the Italian Public Prosecutor’s Office was declared inadmissible in Criminal Proceedings against X. ^{Footnote 21} However, in Dorsch Consult, the Court overlooked the requirement that the body be a third party, and emphasised instead that the body should ‘carry out its task independently and under its own responsibility’. ^{Footnote 22} This line was continued in cases such as Köllensperger and Atzwanger ^{Footnote 23} and Gabalfrisa. ^{Footnote 24} These cases were criticised for portraying a very ‘lax criterion’ of independence, as it sufficed that there were generic provisions intended to ensure the impartiality or the independence of the court or tribunal. ^{Footnote 25}

In summary, this early body of case law set out a functional notion that delineates which bodies should be allowed to the judicial dialogue. In contrast to the European Court of Human Rights (henceforth: ECtHR) when it decides on judicial independence under Article 6 of the European Convention of Human Rights (henceforth: ECHR), the focal point of the Court of Justice has not been the protection of the fundamental right of an individual to an independent tribunal. ^{Footnote 26} Hence, when interpreting independence in a ‘lax’ way, the Court was not concerned with fundamental rights but merely focused on broadening access to the preliminary reference procedure, allowing more participants to the dialogue. ^{Footnote 27}

Wilson: a stepping stone towards a more substantive understanding of independence?

This functional view on independence seemed to change with the Court’s ruling in Wilson, where it built up the independence requirement. ^{Footnote 28} Referring to the case law of the European Court of Human Rights in the context of Article 6(1) ECHR, the Court explained that there are two dimensions to independence: an internal and an external one. ^{Footnote 29} Internally, independence should be understood as impartiality: it seeks to ensure a level playing field for the parties to the proceedings and for their competing interests. ^{Footnote 30} Externally, independence requires that the body be shielded from external intervention or pressure that could jeopardise the independent judgement of its members as regards proceedings before them.Footnote ³¹ This embodies the separation of powers between the executive and legislative branch and the judicial one. ^{Footnote 32}

The Court further emphasised that both dimensions of independence require rules that are able to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. ^{Footnote 33} In particular, rules are required concerning the composition and appointment of the body, length of service and the grounds for abstention, rejection, and dismissal of its members. ^{Footnote 34}

This move away from a purely functional approach towards a more ‘substantive’ understanding of independence (which is more in line with the case law of the European Court of Human Rights), does come with an important side note. Unlike in the previously mentioned cases, in Wilson the Court was not concerned with allowing a national court to take part in the dialogue des juges. The notion of ‘independence’ in Wilson arose in the context of Article 9 of Directive 98/5 on the free movement of lawyers, which requires member states to provide remedies before a ‘court or tribunal’ against negative registration decisions.Footnote ³⁵ To interpret this provision, the Court relied on the body of case law developed under Article 267 TFEU. ^{Footnote 36} As argued by Bonelli and Claes, the change in case law can thus be explained by the aim of this particular provision, which is to guarantee that individuals have access to an independent body.Footnote ³⁷

Be that as it may, the Court stuck with this interpretation of the independence requirement also in ‘pure’ admissibility questions under Article 267 TFEU, where it was not concerned with the right to an effective remedy. ^{Footnote 38} Furthermore, this definition was transposed to yet another context: when elaborating on judicial independence as part of the principle of effective judicial protection laid down in Article 19 TEU.

Independence in a Rule of Law context: the activation of Article 19 TEU

Following the many examples of ‘Rule of Law backsliding’ in several member states, ^{Footnote 39} and notably the Polish rules that systematically undermine the independence of the national judiciary, ^{Footnote 40} a new body of case law has been emerging with the notion of ‘judicial independence’ as its centre. This time, the case law does not revolve around Article 267 TFEU, but around Article 19(1)(2) TEU, which imposes a duty on member states ‘to ensure effective legal protection in the fields covered by Union law’. ‘Judicial independence’ arises in these cases not as a ‘formalistic’ admissibility requirement, but as a necessary corollary of the principle of effective legal protection, itself part and parcel of the Rule of Law.

Two cases in particular steal the spotlight: ASJP ^{Footnote 41} and, of course, Commission v Poland (Indépendance de la Cour suprême). ^{Footnote 42} Interestingly, the former is not the controversial Rule of Law case one would imagine. The facts were rather straightforward: in short, a union of Portuguese judges tried to defend their salaries from austerity measures by arguing that those measures breached the principle of judicial independence. As singled out by Bonelli and Claes, this case could have been resolved easily: the Court has generally declined jurisdiction when questioned about the conformity of austerity measures with fundamental rights, as it found that the referring courts did not adequately explain why the legislation at issue was ‘implementing EU law’ in the sense of Article 51 of the Charter. ^{Footnote 43} Likewise, the Court could easily have declared the question of the Portuguese judges inadmissible. Alternatively, the Court could have relied on the principle of non-discrimination, as it did in Commission v Hungary,Footnote ⁴⁴ and more recently in UX v Governo della Repubblica italiana. ^{Footnote 45} Surprisingly, the Court chose to answer the referred question from a Rule of Law perspective instead. It seized this case as an opportunity to set out its views on judicial independence, activating Article 19 TEU as a standard for review of national measures that would hamper the principle of judicial independence. ^{Footnote 46} The judicial creativity that this ‘detour’ ^{Footnote 47} required can only be explained by the desire of the Court to find a foothold in the Polish discussion. In fact, the independence of the Polish judiciary was – and is – being seriously undermined by a set of reforms, inter alia, by lowering the retirement age of sitting judges of the Polish Supreme Court. ^{Footnote 48} It came as no surprise that when the Commission brought an infringement action against Poland for jeopardising the independence of its Supreme Court, the Court seamlessly followed its reasoning set out in ASJP, striking down the Polish measures for infringing Article 19(1)(2) TEU.

While this judgment deals with a multitude of interesting issues,Footnote ⁴⁹ this article will focus on how both ASJP and Commission v Poland have elevated the concept of independence. First, the Court stressed that judicial independence is a general principle of EU law, referring to the common traditions of the member states and to fundamental rights provisions (Articles 6 and 13 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union – henceforth: the Charter) which codify the right to effective judicial protection. ^{Footnote 50}

Second, it embedded judicial independence as a necessary corollary of the Rule of Law value in Article 2 TEU. A Union that is based on the Rule of Law entails that individual parties can challenge the legality of EU acts that affect them before the courts. ^{Footnote 51} In that sense, ‘Article 19 TEU […] gives concrete expression to the value of the Rule of Law affirmed in Article 2 TEU’, since it requires member states to establish a system of legal remedies and procedures that is able to ensure effective judicial review and effective judicial protection, within the meaning of Article 47 Charter in particular, in the fields covered by EU law. ^{Footnote 52} This means in particular that national bodies qualifying as ‘courts or tribunals’ within the meaning of EU law and which form part of the member state’s judicial system in the fields covered by EU law, must meet the requirements of effective judicial protection. ^{Footnote 53} This entails that the body be ‘independent’, which is intertwined with the right to an effective remedy as confirmed by the second paragraph of Article 47 Charter.Footnote ⁵⁴ Indeed:

In other words: without independent courts, there cannot be effective judicial protection; and without effective judicial protection, there cannot be a Rule of Law.

Last and perhaps most importantly, maintaining judicial independence became an enforceable primary law obligation that binds member states ‘in the fields covered by Union law’ under Article 19 TEU. The Court followed its stance set out in ASJP, explaining that Article 19(1)(2) TEU applies irrespective of whether member states are implementing Union law, as would be required for the applicability of Article 47 Charter under Article 51(1) Charter. ^{Footnote 56} Advocate General Tanchev stresses that ‘Article 19(1) TEU constitutes an autonomous standard for ensuring that national measures meet the requirements of effective judicial protection, including judicial independence, which complements Article 47 of the Charter’. ^{Footnote 57} The obligations arising from Article 19(1)(2) TEU already apply from the moment a national body could rule as a ‘court or tribunal’ on questions concerning the application or interpretation of EU law. ^{Footnote 58} In that regard, Article 19(1)(2) TEU also sets out a functional notion of the ‘European judiciary’ as the subject of this ‘new’ primary law obligation: this judiciary encompasses any national body fulfilling the Dorsch Consult criteria that may potentially decide on the interpretation or application of Union law. ^{Footnote 59} In other words, when a national body qualifies as a member of the European judiciary, meaning that it fulfils – amongst other criteria – the criterion of independence, the member states are under the obligation to safeguard that body’s independence.

The case law on independence, a (dis)continuum?

While the nature of the concept of independence seems to have evolved, the Court filled out the content of judicial independence in the same way as it has done since Wilson, reiterating that independence has an internal and external aspect. ^{Footnote 60} The Court thus relied on the case law it developed in the context of Article 267 TFEU. ^{Footnote 61} There are arguments to be made in favour of this choice: first, given the relevance of the preliminary ruling system for the EU legal order, the independence requirement under Article 267 TFEU could seem like a good starting point for the creation of a general obligation to protect judicial independence. ^{Footnote 62} Second, it is practical: the case law under Article 267 TFEU has been developed for years by the Court and is therefore an easy stepping stone. ^{Footnote 63} Last, it ensures consistency: given the close connection between Articles 19 TEU and 267 TFEU, a distinction between both notions of independence might feel artificial and create confusion. ^{Footnote 64}

However, it is important to denote the differences between the body of case law concerning the preliminary ruling procedure and the new ‘Rule of Law’ cases, respectively. In the context of Article 267 TFEU, the requirement of independence serves as one of the factors that will determine whether one specific national body is capable of referring a question for preliminary ruling to the Court. It is not used as a general requirement imposed on all bodies that potentially form part of the European judiciary. Furthermore, one might argue that there is a ‘temporal’ element to take into account: in the context of the preliminary ruling procedure, the Court will generally assess whether a body that refers for the first time forms part of the European judiciary. In contrast, under Article 19(1)(2) TEU, the Court is likely to already know that the body forms part of the European judiciary. The Polish Supreme Court, for instance, has been admitted to refer questions for preliminary ruling and continues to do so routinely. The Court did not question whether the Polish Supreme Court forms part of the European judiciary – it investigated how the Polish Supreme Court’s properties were altered and whether that threatened its independence. Last, as explained above, the Court’s attitude towards independence has been rather ‘lax’ and fragmented in the context of Article 267 TFEU with a (legitimate) view on broadening access to the preliminary reference procedure, allowing more participants to the dialogue. ^{Footnote 65} This raises at least some doubt as to whether that body of case law constitutes a suitable standard for assessing whether a member state has breached its obligations under Article 19(1)(2) TEU.Footnote ⁶⁶

It is clear that both the alignment and the nonalignment of the concept of independence under Article 267 TFEU and under Article 19 TEU create some challenges. Looking at the Court’s reasoning in Commission v Poland and ASJP, it appears as if ‘independence’ could become an autonomous notion of EU law that has the same content regardless of the context in which it operates.Footnote ⁶⁷ But what are the effects of this ‘Article 19 type of independence’ on the possibility for individual judges to refer questions for preliminary ruling to the Court, when member states fail to fulfil their obligations under Article 19(1)(2) TEU or even blatantly undermine the independence of their judges? Are they paradoxically excluded from participating in the dialogue des juges? This would mean they are punished twice: not only is their independence threatened, but they see their access to the Court of Justice disappear as well.

It is not ground-breaking that questions are declared inadmissible when they arise from bodies that are not independent. ^{Footnote 68} What is controversial, however, is whether systemic deficiencies in a member state that affect the independence of the judiciary could lead to structural inadmissibility of the questions referred by the judiciary of that member state. ^{Footnote 69}

Banco de Santander: tying a dangerous knot

Until the Court’s judgment in Banco de Santander,Footnote ⁷⁰ it was unclear whether the case law on ‘independence’ developed under Article 19 TEU would in its turn be incorporated when assessing the admissibility of a preliminary reference. In Banco de Santander, the Spanish Central Tax Tribunal (Tribunal-Económico Administrativo Central) had made a reference concerning an issue of state aid. The Court, however, did not examine the actual content of the references, since it found that the Tax Tribunal was not a ‘court or tribunal’ in the sense of Article 267 TFEU and declared the references inadmissible.

The bone of contention was whether the Tax Tribunal fulfilled the criterion of independence. When assessing compliance with this condition, the Court overruled its earlier findings in Gabalfrisa, where it had established that the Spanish legislation concerning administrative tax tribunals ensured an acceptable degree of independence by safeguarding a separation of functions between, on the one hand, the departments responsible for management, clearance and recovery of tax and, on the other hand, the tax tribunals which rule on complaints lodged against the decisions of those departments. ^{Footnote 71} As mentioned earlier, this ruling was criticised for establishing a ‘lax criterion of independence’. ^{Footnote 72} In Banco de Santander, the Court explicitly noted that its considerations in Gabalfrisa ‘must be re-examined notably in the light of the most recent case-law of the Court [i.e. ASJP in particular] concerning, in particular, the criterion of independence which any national body must meet in order to be categorised as a ‘court or tribunal’ for the purposes of Article 267 TFEU’. ^{Footnote 73} Furthermore, it reiterated its case law from ASJP, stating that the requirement of independence is essential to the proper functioning of the preliminary ruling mechanism, since only independent bodies can activate this mechanism. ^{Footnote 74} With this ‘new’ lens, the Court carried out an in-depth analysis of the internal and external aspects of independence, concluding that the Tax Tribunal does not comply with the internal aspect of it and therefore no longer qualified as a ‘court or tribunal’. ^{Footnote 75}

While it is possible to view this as ‘a final tribute to Advocates General Saggio and Ruiz-Jarabo Colomer’, who firmly disagreed with the Court’s earlier stance that administrative tax tribunals qualify as ‘courts or tribunals’, the implications of this ruling and the reasoning displayed in it are more far-reaching than they might appear at first sight. ^{Footnote 76} Indeed, it seems – at least from this case – that the notion of ‘independence’ has the same content when examining whether a national body qualifies as ‘court or tribunal’ as a precondition for Article 267 TFEU proceedings as when judging on Rule of Law infringements. ^{Footnote 77} This also seems to be echoed by President Koen Lenaerts in his speech before the Supreme Administrative Court of Poland, which he concluded by stating first that ‘in the EU legal order, a “court” is always to be understood as meaning an “independent court”’, followed by the statement that ‘judicial independence is, in any event, a prerequisite for any “court” that wishes to engage in a dialogue with the ECJ and with sister courts in other Member States’. ^{Footnote 78}

The consequence: structural inadmissibility?

The Court’s ruling in Banco de Santander seems – at least in theory – to open Pandora’s box: courts or tribunals whose independence has been impaired by far-reaching structural changes carried out by the government would no longer qualify as a ‘court or tribunal’ under Article 267 TFEU and would thus be denied access to the preliminary ruling procedure. When the structural change impairs the independence of the entire national judiciary, this would mean that the member state in question becomes a blind spot on the radar of the Court of Justice. ^{Footnote 79} This hypothesis is far from theoretical when looking at Poland: the new disciplinary regime for judges, which ‘allows ordinary court judges to be subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to request preliminary rulings from the Court of Justice of the EU’ should be viewed as a structural change that impairs the independence of the entire judiciary. In that sense, none of the bodies belonging to the judiciary would still fulfil the independence requirement and, inevitably, none of those bodies would still have access to the preliminary ruling procedure. ^{Footnote 80} As apocalyptic as it may sound, that member state would – from the point of view of EU law – no longer have ‘courts or tribunals’.

While this seems an undesirable and perverse conclusion to draw from the Court’s attempts to safeguard judicial independence, it does not seem unlikely in view of the logic deployed by the Court in Banco de Santander. As stated above, the Court naturally declares questions arising from non-independent bodies inadmissible. Furthermore, structural independence issues have had similarly intrusive consequences: in the context of a European Arrest Warrant, the Court stated that the executing authority could refuse to surrender a person when it has material, such as that set out in a reasoned proposal of the European Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial under Article 47 Charter on account of systemic or generalised deficiencies affecting the independence of the issuing member state’s judiciary. ^{Footnote 81} In that case, the executing authority has to examine whether there are substantial grounds for believing that the individual whose surrender is requested, will run such a risk.Footnote ⁸² The European Arrest Warrant, a mutual trust mechanism par excellence, can thus be crippled by structural independence issues.Footnote ⁸³

The reasons for such far-reaching consequences are concisely summarised by Lenaerts in the earlier quoted speech:

It is thus clear that systemic deficiencies affecting the independence of the judiciary can have far-reaching consequences for the EU legal order. Becoming a blind spot for the Court of Justice might very well be one of them. However, the Court has not – to date – declared inadmissible questions referred for preliminary ruling by the Polish courts on the ground that they are affected by laws undermining their independence. ^{Footnote 85} Moreover, in Commission v Poland, the Court interestingly has omitted the ‘controversial’ paragraph from ASJP on the essential nature of the characteristic of independence for the proper functioning of the preliminary ruling procedure. The reason for that can only be guessed. One explanation could be the nature of the proceedings: in an infringement action, an obiter dictum on the relevance of the independence requirement for the preliminary ruling system was perhaps not considered useful. ^{Footnote 86} Yet another – perhaps more likely – explanation could be that the Court did not want to prematurely close the doors on the Polish courts. Remaining silent might have left the Court the leeway it needs to assess the admissibility of individual questions arising from Polish courts. As described above, the alternative would force the Court to systematically decline jurisdiction concerning these questions. Or would it?

Advocate General Wahl in Torresi: also for ‘independence’, context is everything

An interesting view on the relevance of the context in which ‘independence’ operates, is offered by Advocate General Wahl in Torresi. ^{Footnote 91} In that case, the Court had to assess whether the Italian National Bar Council met the requirement of independence and thus qualified as a ‘court or tribunal’. ^{Footnote 92} In the past, the Court had already accepted a reference from that same National Bar Council in Gebhard. ^{Footnote 93} However, in the meantime, the Court had issued the Wilson judgment, in which it had set out an ‘internal and external aspect of independence’.Footnote ⁹⁴ This raised the following question: did Wilson overrule Gebhard in such a fashion that a body that was once deemed to fulfil the requirement of independence, now no longer did because Wilson had made the requirement of independence more demanding?

According to Advocate General Wahl, the answer to that question is and should be negative. While he defends a degree of flexibility for the Court when assessing the relevant criteria under Article 267 TFEU, this should not lead to a more rigorous application of the independence requirement. ^{Footnote 95}

First, to demonstrate that Wilson did not overrule Gebhard, Advocate General Wahl starts by stressing the different contexts of both cases. As noted above, the Court did not rule on the admissibility of a preliminary question in Wilson but ruled on the compatibility of a Luxembourgish law with Directive 98/5. In that specific context and with the purpose of that provision in mind, the Court merely ‘borrowed’ the principles developed under Article 267 TFEU. ^{Footnote 96} Advocate General Wahl then continues by examining the relevant legal background in Wilson. He stresses that where in Wilson there were no guarantees protecting the impartiality and independence of the Bar Association concerned, those guarantees are in fact present in the relevant Italian laws when it comes to the National Bar Council. ^{Footnote 97} This difference in factual and legal context leads Advocate General Wahl to conclude that Wilson and Gebhard must be distinguished from one another, and that therefore Wilson cannot have been intended to overrule Gebhard. ^{Footnote 98}

He then moves on to argue that Wilson should not in any event overrule Gebhard ‘by applying ipso facto the reasoning developed in Wilson to another legal context’.Footnote ⁹⁹ To substantiate this claim, he highlights that Article 9(2) of Directive 98/5 aims to provide a legal remedy which is fully consistent with Article 6 ECHR and Article 47 Charter. ^{Footnote 100} According to Advocate General Wahl, it is far from obvious that Article 267 TFEU would impose such a high threshold for a national court to be able to seize the Court of Justice under the preliminary ruling procedure.Footnote ¹⁰¹ On the contrary: the same arguments that plead in favour of a strict application of Article 6 ECHR and Article 47 Charter, ironically urge a less rigid interpretation of the notion ‘court or tribunal’ for the purposes of Article 267 TFEU. ^{Footnote 102}

Article 6 ECHR and Article 47 Charter are applied strictly in order to strengthen the protection of individuals and ensure a high standard of protection of fundamental rights. ^{Footnote 103} According to Advocate General Wahl, those goals could be hampered by an overly strict application of the admissibility criteria for preliminary references under Article 267 TFEU: individuals would no longer be able to have the ‘natural judge’ (the Court of Justice) hear their EU law based claims and this would, as a consequence, weaken the effectiveness of EU law throughout the EU. ^{Footnote 104}

With his Opinion, Advocate General Wahl does not seek to minimise the role played by the criterion of independence. He stresses that impartiality and independence have an important function to fulfil, as they are inherent in the notion of ‘court or tribunal’ in contemporary legal and political thinking.Footnote ¹⁰⁵ He does, however, advocate against interpreting Wilson as an ‘innovation’ on to existing case law, which would impose on the Court the duty to carry out ‘an in-depth analysis of all the possible grounds which might give rise to some suspicion about the impartiality (or the independence stricto sensu) of the referring body’.Footnote ¹⁰⁶ Rather, when the referring body forms part of the judicial structure of a member state, and when there are sufficient rules under national law which guarantee the impartiality and independence of that body, Advocate General Wahl argues that the Court’s analysis should not go any further when assessing compliance with the requirement of independence. ^{Footnote 107} To do so would have far-reaching consequences: ‘A not insignificant number of national judicial bodies would risk falling outside the notion of “court or tribunal” for the purposes of Article 267 TFEU, with the result that the system of protection for individuals would be weakened, hindering the effectiveness of EU law’. ^{Footnote 108} With this statement, Advocate General Wahl makes it clear that when assessing independence, context is indeed everything.

This line of reasoning also seems to have been followed by Advocate General Bobek in Pula Parking concerning a more general discussion on the interpretation of the notion of ‘court or tribunal’ in the context of Regulation 1215/2012.Footnote ¹⁰⁹ Advocate General Bobek argued that for this definition there are good normative and pragmatic reasons to not reinvent the wheel and rely on the Article 267 TFEU test. ^{Footnote 110} However, ‘the difference in purpose [of the preliminary ruling mechanism and Regulation 1215/2012 respectively] must be reflected in a different approach in terms of how to apply the same criteria’. ^{Footnote 111} Likewise, the difference in purpose of the preliminary ruling mechanism and of Article 19 TEU must be reflected in a different approach in terms of how to apply the criterion of independence.

For the sake of completeness, it should be noted that the Court seems to have followed the reasoning of Advocate General Wahl in Torresi. Rather than conducting an ‘in-depth analysis’, the Court focused on the existence of a legal framework that laid down safeguards protecting the independence and impartiality of the National Bar Council.Footnote ¹¹² This is in line with the Court’s case law in Köllensperger and Atzwanger: after having established that the law laid down sufficient safeguards to protect the independence of the body concerned, the Court explicitly refused – for the purposes of Article 267 TFEU ^{Footnote 113} – to infer that a provision meant to protect a national court’s independence was applied in a manner contrary to the domestic constitution or the principles of a state governed by the Rule of Law. ^{Footnote 114} It seems unlikely that the Court would limit itself to such examination under Article 19(1)(2) TEU or Article 47 Charter.

Independence under Article 267 TFEU and Article 19 TEU: A ‘qualitatively different exercise’? ^{Footnote 115}

The reasoning of Advocate General Wahl in Torresi set out above fuels the argument that structural inadmissibility is not an inevitable consequence arising from the Court’s recent rulings on judicial independence.Footnote ¹¹⁶

While the Opinion of Advocate General Wahl does not feature in a Rule of Law context, the Opinion of Advocate General Tanchev in AK (Indépendance de la chambre disciplinaire de la Cour suprême) does. ^{Footnote 117} In that case, Poland had argued that the Disciplinary Chamber complied with the independence requirement under Article 267 TFEU, and that that standard should not be interpreted differently from those under Article 19 TEU and Article 47 Charter. ^{Footnote 118} In response, Advocate General Tanchev argued that the Court had in no way suggested that the case law developed under Article 267 TFEU was the exclusive source governing independence. ^{Footnote 119} Furthermore, he called the assessment of the independence criterion for determining whether a body qualifies as a ‘court or tribunal’ under Article 267 TFEU a ‘qualitatively different exercise’ than the assessment of whether the requirements of judicial independence have been complied with under Article 47 Charter and Article 19(1) TEU. ^{Footnote 120}

Like Advocate General Wahl in Torresi, he emphasises the difference in context: under the preliminary ruling mechanism, the Court answers a question referred by a body which is entitled to do so, and which is linked to the underlying objective of the mechanism: establishing a judge-to-judge dialogue and ensuring the uniform interpretation of EU law. ^{Footnote 121} On the other hand, under Article 47 Charter and Article 19 TEU, the Court engages in a substantive assessment to establish whether the national measure in question undermines judicial independence according to the requirements imposed by those provisions.Footnote ¹²² Concluding on this point, however, Advocate General Tanchev adds that:

While there are arguments to be made in favour of this statement, it should be noted that this concerns the debate on the content of the independence requirement and not the debate on the assessment of the independence requirement. The type of review carried out by the Court in the context of Article 267 TFEU should be – as Advocate General Tanchev writes in the preceding paragraphs – qualitatively different.Footnote ¹²⁴ It should moreover be noted that, as described above, the Court already moved closer towards the case law of the European Court of Human Rights on Article 6(1) ECHR when developing the internal and external aspect of independence in Wilson. This evolution did not, however, prompt the Court to change the type of assessment it carries out when reviewing independence in the context of admissibility procedures.Footnote ¹²⁵ Analogous to the Opinion of Advocate General Bobek quoted above, the difference in purpose of the preliminary ruling mechanism and Article 19 TEU respectively must be reflected in a different approach in terms of how to apply the same criteria.Footnote ¹²⁶ Drawing a parallel between the opinions of Advocate General Wahl and Advocate General Tanchev seems justified. As in Wilson, the Court did not, in the Rule of Law cases, assess whether the body at issue fulfilled the criteria for qualifying as ‘court or tribunal’ under Article 267 TFEU. Analogous to Wilson, the Court ‘borrowed’ the principles developed under Article 267 TFEU, in particular on independence, but with a different purpose in mind. At issue in both ASJP and Commission v Poland was a threat to the independence of the judiciary, be it by austerity measures or by far-reaching structural changes such as the lowering of the retirement age. This can explain – and justify – the firmer stance of the Court on independence. Indeed, as President Lenaerts stated in his speech before the Supreme Administrative Court of Poland, ‘where a national court […] acts as a European court […], Article 19(1) TEU protects its independence’. ^{Footnote 127} Article 267 TFEU, in contrast, does not have as its purpose the protection of national judges.

Interestingly, Advocate General Tanchev mainly focuses on the finding that the case law developed under Article 267 TFEU does not constitute the exclusive source of the principle of judicial independence under Article 19 TEU and Article 47 Charter. He does not in turn mention whether the case law developed under Article 19 TEU and Article 47 Charter could or should be treated as an ‘innovation’ on to the pre-existing body of case law under Article 267 TFEU (with the possible effect of structural inadmissibility of questions arising from the ‘tainted’ Polish courts).

Nevertheless, the words of Advocate General Tanchev seem to have resonated with the Court in another case: Land Hessen.Footnote ¹²⁸ In that case, the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden) had expressed doubts regarding its own independence and consequently its ability to refer questions for a preliminary ruling. When assessing the admissibility of the question referred, and thus, inherently, the independence of the referring court, the Court emphasised the fundamental importance of the independence requirement for the EU legal order and identified three roles for the independence requirement: first, it forms part of the rule of law value laid down in Article 2 TEU and concretised by Article 19 TEU.Footnote ¹²⁹ Second, it is a necessary condition for guaranteeing individuals their fundamental right to an independent and impartial tribunal laid down in Article 47 Charter, which is of cardinal importance in guaranteeing the protection of all the rights that individuals derive from EU law.Footnote ¹³⁰ Third, it is essential to the proper working of the preliminary ruling mechanism, in that the mechanism may only be triggered by a ‘court or tribunal’ in the sense of Article 267 TFEU, which satisfies, inter alia, the requirement of independence.Footnote ¹³¹

With these different frameworks in mind, the Court concludes that:

This line of reasoning fits seamlessly with the arguments made by Advocate General Wahl, Advocate General Bobek and Advocate General Tanchev. Indeed, independence plays a variety of roles within the EU legal order. In these roles, independence has the same content: it has an internal and external aspect. However, when assessing whether a member state court is independent, the Court must assess its independence only in the light of the specific role played by independence in that context.

This approach can be contrasted with the Court’s ruling in Banco de Santander.Footnote ¹³³ The statement that the ruling in Gabalfrisa ‘must be re-examined notably in the light of the most recent case-law of the Court concerning, in particular, the criterion of independence which any national body must meet in order to be categorised as a ‘court or tribunal’ for the purposes of Article 267 TFEU’ seems to imply that ASJP overruled Gabalfrisa in such fashion that a body that was once deemed to fulfil the requirement of independence now no longer does, because ASJP has made the requirement of independence more demanding. This not only fails, in my opinion, to attribute the adequate amount of importance to the difference in context, but furthermore seems to ignore the very fact that there are two different strands of case law, delimiting the type of review that needs to be carried out. The Court is thus well advised to steer clear from treating the case law developed under Article 19 TEU as an essential source for the assessment of independence under Article 267 TFEU.

The Rule of Law cases cannot and should not overrule the Court’s case law on independence in the context of Article 267 TFEU

In spite of Banco de Santander, and in line with the above, two conclusions should be drawn. First, the independence criterion is featured in roughly two different contexts: the context of the preliminary ruling mechanism and the context of the Rule of Law value. Those contexts differ significantly: in the context of the Rule of Law value, the requirement of independence aims at the protection of fundamental rights of individuals and the protection of national judges. In the context of the preliminary ruling procedure, it serves as a functional notion that delineates which bodies should be allowed to the judicial dialogue in the context of the preliminary ruling procedure.Footnote ¹³⁴ Second, ‘independence’ should be assessed differently depending on the context in which it operates. For this reason, the Rule of Law cases cannot overrule the Court’s case law on independence in the context of Article 267 TFEU.

There are, however, also normative arguments to be made as to why the Court should not overrule its earlier case law under Article 267 TFEU. On a general level, this would not only impose on the Court a responsibility to go far beyond a formal verification of compliance with the requirement of independence under Article 267 TFEU, but also have the result that a not insignificant number of national judicial bodies (possibly all Polish courts) risk falling outside the notion of ‘court or tribunal’. Parallel to the argument made by Advocate General Wahl in Torresi, the same arguments pleading in favour of a strict application of the criterion of independence under Article 19 TEU – the protection of the rights of individuals under EU law – plead in favour of a less rigid application of that same criterion under Article 267 TFEU.

Looking at the concrete situation in Poland, there are furthermore multiple (meta-legal) arguments advocating for the qualitatively different assessment that is put forward in this article. First, as long as Poland remains a member state of the EU, it is bound to apply EU law and EU law grants its citizens certain rights. It is of fundamental importance for the autonomy of the EU legal order that those rights are enforced in a uniform way, which is achieved through the preliminary ruling mechanism. ^{Footnote 135} Put differently, not granting the Polish courts access to the preliminary ruling procedure will not stop them from applying EU law. It might only stop them from applying EU law correctly. This inevitably weakens both the effectiveness of EU law and the protection of individuals. As Advocate General Ruiz-Jarabo Colomer wrote in his opinion on de Coster: ‘the Court of Justice still needs to ensure that situations governed by [Union] law do not remain outside its jurisdiction and, consequently, without a uniform interpretation of the rules which regulate them’. ^{Footnote 136}

Next, Polish courts have used the preliminary ruling procedure as one way to bring attention to the reforms carried out by the government. ^{Footnote 137} Cutting this lifeline could be detrimental, especially since the political instruments adopted by the Commission, such as the Rule of Law Framework ^{Footnote 138} and the Article 7 TEU procedures that have been initiated, have proved to be of little or no avail.

Last, the danger that the preliminary ruling procedure would be instrumentalised by parties with anti-European or anti-Rule of Law interests should, in my opinion, be relativised. Next to the fact that parties cannot oblige a national court to make a reference, it seems rather far-fetched that the end-result of a preliminary ruling, which clarifies the correct interpretation and application of EU law, could constitute ammunition to further undermine the Rule of Law. Of course, the risk exists that the judgment of the Court would be implemented in an incorrect or unsatisfactory way. However, one does not need a Rule of Law crisis to run that risk. ^{Footnote 139}