January 23
2022
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Trajan Shipley
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5th November 2021
Institutional law Justice & Litigation

FIDE 2021: judicial independence in national courts

In the third panel of Topic 1 of the FIDE Congress, participants focused on the issue of judicial independence. The session was divided into three parts, dealing with the scope of application of EU law as a criterion of judicial review, the consequences of lack of independence in individual cases, and the overlapping concepts of judicial independence in the Treaties (art. 19 TEU in conjunction with Art. 47 of the Charter, and Art. 267 TFEU). 

In the first part of the discussion, Michal Bobek and Anna Wallerman pointed out that the national reports refer to a very wide variety of situations in which national courts consider that there are issues of judicial independence with an impact in EU law. This variety is in contrast with the severity of some specific cases, as the Polish judicial reforms show, thus forcing EU law to find a difficult balance between cases in which EU law fully applies (and thus the requirements of judicial independence under Art. 47 of the Charter) and other more systemic situations, which refer to cases in which a systemic failure of the national judicial system might trigger Art. 7 TEU procedures. 

In the discussions there were several comments as to the competence of the Union, and whether EU law should adapt its traditional categories to determine a link with EU law and attribute Union competence. These discussions led the institutional rapporteur to highlight the importance of admissibility requirements in judicial proceedings before the Court of Justice, particularly in cases of systemic breach. He pointed out upcoming cases of the Court of Justice in which the issue of admissibility could be addressed, as a means to counter an expansive interpretation of Art. 19 TEU. On this point, the President of the Court of Justice, Koen Lenaerts, pointed out that the vast majority of cases dealing with judicial independence have concerned situations with clear links with EU law, as in the case of European arrest warrant enforcement measures. 

In the second part of the discussion, the rapporteurs focused on the consequences that a declaration of lack of judicial independence entails, in particular in an individual case. Reference was made to the recent case-law of the European Court of Human Rights and the Court of Justice (Astradsson/Iceland and Simpson, respectively), and the audience engaged with the rapporteurs on several issues, particularly the practical implications of not enforcing European arrest warrants or cases of system relevance but which might not affect individual cases. Some participants highlighted that these individual consequences still find no answer in the case-law. 

Finally, some remarks were made as to the notion of “judicial independence” in Art. 19 TEU, in relation to Art. 47 of the Charter, and the one provided in Art. 267 TFEU. On this point, Michal Bobek highlighted the need to find a consistent approach to this matter, inasmuch he views that there is a significant overlapping of cases and situations in which systemic situations appear, together with issues of determining whether a national court is a court pursuant to Art. 267 TFEU. 

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