Op-Ed – “On the meaning of ‘independent and impartial tribunal’ – Opinion of AG Bobek in Getin Noble Bank” by Ricardo García Antón
The Opinion of Advocate General (AG) Bobek in Getin Noble Bank (C-132/20) is another important milestone in the current rule of law backsliding in Poland and Hungary, and surely not the last chapter in this thrilling EU law series. The case concerns the impartiality and independence status of several judges of the Sąd Apelacyjny we Wrocławiu (Court of Appeal, Wrocław, Poland). Firstly, doubts were raised in relation to a judge originally appointed by a political body within the executive branch of the People’s Republic of Poland (1947-1989), who continued to be a judge after the fall of the Communist regime. Secondly, similar concerns on independence and impartiality were alleged regarding several judges who were appointed on the basis of resolutions adopted by the National Council of the Judiciary, in a composition resulting from legislation subsequently declared unconstitutional by the Constitutional Court.
Preserving the rule of law of Article 2 TEU within the judiciary of the Member States has been a top priority in a recent line of cases adjudicated by the Court of Justice, on the three legal prongs of Article 267 TFEU, Article 19 (1) TEU and Article 47 of the Charter. AG Bobek reasons that there is only one principle of judicial independence under EU law, but the type of examination to be carried out varies, depending on the provisions at issue (paragraph 36). His systematic approach to the legal basis of the EU principle of judicial independence is not new, and had already been presented in his Opinion in WB and Others (Joined Cases C‑748/19 to C‑754/19, paragraphs 161 and 162).
In relation to access to the preliminary reference procedure, the examination of interlocutors to be qualified as courts or tribunals within Article 267 TFEU requires looking at ‘the body itself, and not in relation to the individuals who sit in the body which made the request’ (paragraph 47). Such functional holistic assessment of the body itself is present in Banco de Santander (C‑274/14), wherein the bonds of the Spanish administrative tribunals with the Spanish Ministry of Finance jeopardise the independence and impartiality (see my earlier Op-Ed here). In Getin Noble Bank, AG Bobek considers that the possible flaws in the appointment procedure of the Polish judge of the Supreme Court, who made the reference in the present case, do not hinder the judicial body from performing their duties wholly autonomously, and without external pressure capable of influencing their decisions. Among other compelling arguments to support this approach, ‘the Court is ill-equipped to carry out an assessment of the impartiality and moral integrity of specific judges at national level in the form of an admissibility assessment under Article 267 TFEU’ (paragraph 69).
While Article 19(1) TEU contains an extraordinary remedy to breaches of certain seriousness or systemic default of the national judicial system (paragraphs 38 and 39), Article 47 of the Charter embodies a subjective right to an effective remedy and a fair trial (paragraph 40). Such theoretical distinction between both legal bases may, in my view, be too academic and result in deprivation of practical effects in the case-by-case analysis. AG Bobek recognises the own flaws of his abstract distinction between these two legal bases. First that there is no a binary choice between them (paragraph 103) and second, assessing judicial independence depends on all relevant circumstances, thereby comprising an in abstracto analysis and in concreto analysis (paragraph 98-101).
Turning to the analysis of independence, the Opinion of AG Bobek seems quite convincing. Although the appointment of the judge during the Communist Poland times did not meet the standard of judicial independence, today there is no evidence that this judge cannot perform his duties independently without bowing to external pressure (paragraphs 110 – 126).
The same reasoning applies in relation to the appointment of judges by the resolutions adopted by the National Council of the Judiciary, in a composition resulting from legislation subsequently declared unconstitutional by the Constitutional Court (paragraphs 127-164). Based on landmark cases Associação Sindical dos Juízes Portugueses (C‑64/16) and Repubblika (C-896/19), AG Bobek put the focus on the functioning of the body, regardless of the specific circumstances related to the appointment of its members. In case there are doubts of independence regarding the appointment of a judge, they cannot be removed ipso facto (paragraphs 161 – 162). Judicial bodies cannot be subject to any hierarchical constraint or subordinated to any other body in performing its duties.
To conclude, these are my two final remarks. First, bearing in mind the abstracto/concreto analysis of judicial independence carried by AG Bobek in this Opinion and the case law of the Court of Justice in this matter (consider Repubblika), it makes more sense to support the idea of constitutional passerelle between Article 19(1) TEU and Article 47 of the Charter, advocated by AG Tanchev in his Opinion in Commission v Poland (C-192/18, paragraph 97), rather than a compartmentalised vision of the legal basis of judicial independence. Since access to Article 267 TFEU is also made available based on the body itself and not on the members, it is also quite hard to keep an abstract distinction from the other two legal bases. Second, putting the stress on how the judicial functions are performed, and not on how judges were appointed may yield some inconsistencies with recent jurisprudence of ECtHR. In Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18), the ECtHR found that the appointment of judges by the Polish National Council of Judiciary caused a violation of Article 6(1) of the ECHR.
In the current battle to enhance the rule of law in Europe, the pending cases to be solved by Luxembourg and Strasbourg will surely add more food for thought and challenges for judicial dialogue in Europe.
Ricardo García Antón is Assistant Professor of Tax Economics at Tilburg University (Fiscal Institute Tilburg) and former Associate Researcher at the IBFD.