Kirchberg Salami Lost in Bosphorus: The Multiplication of Judicial Independence Standards and the Future of the Rule of Law in Europe
本文分析了欧盟法院在司法独立标准上的多重矛盾标准，包括对自身适用较低标准，导致法治相对主义，危及欧洲法律统一和人权保护。
(In)dependence is by definition relational: it is the independence from or the dependence on something or somebody. Thus, metaphorically speaking, its assessment cannot be limited to a microscopic study of one slice of a salami, without having regard to the rest of the salami stick… The European Union (EU) is a project of integration through law. President Lenaerts presents this official position well: ‘Integration through the rule of law defines what the European Union today stands for’ (Lenaerts, 2020, p. 29). As a core value and a fundamental principle the Rule of Law has a special status in EU law, ‘advancing a clear idea of constitutionalism taming nationalism by […] diffusing the model of liberal democracy to countries with an authoritarian past’ (Bárd, 2022; Pech, 2009). This idea is codified by the Member States in Article 2 TEU 1 and informs the functioning of the whole system of EU law (Klamert and Kochenov, 2019; von Danwitz, 2018). Despite these clear legal obligations, the Rule of Law and other closely intertwined values are severely and systematically violated in several EU Member States (Sadurski, 2019; Sajó, 2021). The World Justice Project's Rule of Law Index (2020) showed that respect for the Rule of Law declined the most in Hungary and Poland in the whole EU/EFTA/North-America region over the last five years. Member States with such rule of law records could not join the EU, were they to submit their applications today (Kochenov, 2004). Now that illiberal regimes are part of the European club, they endanger the European project from within (Pech and Scheppele, 2017). This is best visible in the field of judicial independence, which is both particularly fragile (Kovács and Scheppele, 2019) and crucially important in the context of the European multi-level legal system (Grabowska-Moroz, 2020). Independent judiciary is of course indispensable as the ultimate arbiter and guarantor of individual rights, but also vital for national judges and the Court of Justice of the European Union (CJEU) to maintain judicial dialogue necessary for the proper application of EU law. Both levels of the judiciary in the EU can only fulfil their multiple functions, if their independence is guaranteed. This can only be done if the continental standards enshrined in Article 6(1) ECHR are fully respected, as Article 19 TEU requires. Here is where the problems start: while some fake Polish ‘courts’ have already dismissed such basic standards as in breach of the Constitution (Ploszka, 2022), it flows from CJEU's case-law about itself that it is above such basic requirements (Kochenov and Butler, 2022). Worse still, the inability of the CJEU to make up its mind on the vital issue of what it means to be an independent court established by law in the EU legal context led to a proliferation of numerous wanting ‘standards’ of judicial independence, which are not only internally and mutually contradictory, but also apply differently to the different levels of European judiciary and fall short of meeting the minimum standards outlined by the European Court of Human Rights (ECtHR). This rotten salami, to borrow from AG Bobek's culinary metaphor of this dangerous approach, boasts at least a handful of slices. The very idea of an independent court established by law – which often requires a ‘yes’ or ‘no’ answer is that the parties are entitled to know whether the gowned presence in front of them is an independent judge or not – came to mean ‘context’, as a matter of EU law: whether someone is a lawful judge depends on the court to which the gowned person belongs, the type of action and other variables. ‘Context’ amounts to lack of clarity concerning this vital aspect of the rule of law, endangering both the uniform application of EU law throughout the territory of the Union and the strict adherence to the rigorous human rights standards. The task of this contribution is to walk through a handful of available standards of judicial independence and discuss the broad implications of this EU-mandated unprincipled rule of law relativism. In what follows we retrace the explosion of the ill-conceived plurality of standards on judicial independence and proceed standard by standard, to demonstrate how the EU enforces mutually-contradictory rules pertaining to the heart of the rule of law. We start with the ECtHR approach in ‘established by law’ Article 6(1) ECHR case-law, which makes clear that lawfulness of the court is at the heart of the rule of law and is indispensable in a democratic society to even start speaking about judicial independence; we then proceed to the strong standard applied by CJEU in preliminary references context culminating in Banco de Santander SA; and a watered-down Getin Noble Bank version of the same, which does not – in the name of ‘judicial (sic) dialogue’ 2 – even require a lawful judge and shows resolute lack of decisiveness, on the part of the CJEU in maintaining the EU-wide definition of a ‘court or tribunal’ in the sense of Article 267 TFEU. We proceed to discuss the groundbreaking yet so far ineffective CJEU case-law attempting to shield courts in backsliding member states from the attacks by the executives, only to counterbalance it by the LM case-law and its progeny, which values the idea of ‘mutual trust’ above the protection of fundamental rights and adherence to basic rule of law requirements. Last but not least, we discuss the lowest point in the whole story – the presumption of the CJEU entertained in Sharpston cases that even the lowest standards of lawful composition and independence do not apply to it, thus almost putting the supranational Court, through a contra legem interpretation of the primary law, outwith the ambit of Article 19 TEU minimal requirements: unlawful arbitrary interference by the sovereign with the Court's composition in direct violation of EU and ECHR law has been greenlighted in numerous cases related to AG Sharpston's unlawful premature dismissal by both the Court and the General Court (Kochenov and Butler, 2022). The requirement of a tribunal ‘established by law’ in the sense of Article 6(1) ECHR is at the heart of ECtHR's approach to judicial independence. The establishment of a court by law is a necessary and indispensable requirement of the rule of law, turning the Convention into a ‘rule of law instrument’. 3 Significant case-law comes down to several core elements to consider (for details, see Registry of ECtHR, 2022). At issue is not only the legal basis underpinning the establishment of the court as such, but also the rules of staffing it with judges as well as compliance. So, crucially, the failure to comply with the rules of formation of the court is in itself a violation of Article 6 ECHR. 4 Acknowledging the criticism this case-law received, the court painting in quite broad brush strokes (Kosař and Leloup, 2022), it is important that ECtHR connects the rationale behind ‘established by law’ with the essence of the preservation of democracy: ‘to ensure that the judicial organization in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament’. 5 Three key elements of the ‘established by law’ test flow from Ástráðsson 6: (1) objectively and genuinely identifiable breach of domestic law; (2) the breaches should be fundamental to the procedure; and (3) availability of suitable judicial review based on Convention standards. This standard has been applied in countless cases against Poland, resulting in the finding of significant violations in the cases of outright unlawfully appointed judges of the Constitutional Tribunal 7 (see Grabowska-Moroz, 2021) and the Supreme Court of Poland, including, especially, the Disciplinary Chamber 8 but also other chambers, as long as they include individuals who were appointed by the ‘reformed’ National Council of the Judiciary (NCJ), which was established, to have the purpose of undermining the independence of the Polish judiciary 9 and is thus an institution that cannot appoint members to any tribunal ‘established by law’ (Śledzińska-Simon, 2018). 10 For decades before the advent of the Article 19(1) TEU case-law starting with Portuguese Judges (Pech and Kochenov, 2021) that gave CJEU broad jurisdiction over the national judiciaries, the main vehicle for the CJEU to deal with the whole array of issues pertaining to judicial independence lawful composition and established by law requirements was Article 267 TFEU. 11 CJEU's determination of the meaning of ‘court or tribunal’ in the context of the preliminary reference procedure has been a pillar of EU law since the dawn of integration (Broberg and Fenger, 2021). The core idea was inclusivity and control. The Court invited as many interlocutors as possible to establish vibrant judicial dialogue (Eeckhout, 2015), while at the same time keeping the right to determine what ‘court or tribunal’ meant. As a result, the criterion of ‘independence’ was such that even bodies not recognized as courts and inserted within the administrative structures of the Member States were eligible and encouraged to make references (Broberg, 2009, p. 221). The basic standard to assess the bodies to the preliminary (for p. was with clarity since the of European that the is established by law, rules of law and is and p. the by this case-law and the requirements of Article 19 TEU Portuguese Banco de Santander the meaning of ‘court or tribunal’ by the minimal independence a where of members is not cannot Article 267 standard a court against the of which an is possible is not a ‘court or tribunal’ to preliminary references The standard was is CJEU to a Article 267 and a 19 TEU the of the standards of independence Article 267 came to an with Getin Noble where the Court to answer a for a preliminary from a by ECtHR to the ‘established by law’ by the ECtHR almost Getin Noble Bank that the core idea behind the Polish was the and undermining of the judicial independence and that any judge appointed by an the purpose of which is to judicial independence, is not In other it was not particularly to see the behind the the it was in an to the against judicial independence by with one the who is not a lawful judge in the of the ECHR thus not a lawful judge for the in the EU Member and to the of some of 2022). The CJEU the reference the above well as many an for Pech, the Court established a presumption any national court can be to be established by law, which can only be by a judicial at the national or the composition of the judge or to on the court which the judge or a are is a from the ECHR where lawful is an part as ‘established by of a of a fake AG a the and not in to the individuals who in the which the 19 The Court this the of ‘judicial dialogue’ and this in a direct against the core of the rule of law, as by ECtHR and the CJEU to the ‘court or tribunal of a Member an EU law meaning any with the presumption of lawful establishment by law, which of national its case-law (Pech and Kochenov, 2021) and Article 6(1) ECHR as by ECtHR, in the of before the Getin Noble Bank In Getin Noble Bank the standards thus a ECtHR standard is to be to a Article 267 thus starting a ‘judicial dialogue’ an and since court in the European legal consider the national resulting from such dialogue as a lawful of judicial the with its standard, the other courts on the know that an unlawfully appointed judge is not a in the Getin Noble Bank standard as a of what Article 6 ECHR and Article 19 TEU requires. The of the was by the that the national courts of other Member with the of the fake judges in Poland, are of course by the ECtHR in the context of European as be are This unprincipled approach by the CJEU is the in the context of the case-law the Court has since In a of cases by and in and with and attacks against the judiciary in Poland (Pech and Scheppele, Article 19(1) TEU has direct The CJEU not only its Portuguese Judges jurisdiction to with the at the national to ensure of the rule of law, but also a of key such as to be into which courts are established and in with EU rule of law the and clear by Pech, 2022). The law the of both direct by the – as in Poland of Supreme (for an see and or Poland of the of the principle of – and preliminary references – as in (see Leloup, where the Court the Polish court to apply its judicial independence test to the in the Polish Supreme Court has done also that the Disciplinary and Supreme Court were without CJEU its law with possible and status The Court in and that the of the rule of law are to be the whole system of judicial is proper judicial review of the requirements. The of on Article 19(1) TEU and as well as their to the of the judiciaries, the of this case-law on the both at the national and supranational to be The has not its of with a as to a of the rule of law 2020). Worse still, it has been its at the CJEU's to for their as we have and Kochenov, 2022). the CJEU has of its judicial independence and of case-law to assess an by the Member States against independence in the Sharpston as be one at the national the only to case-law not rule of law (Kochenov, 2021). The the of EU law itself as a system in its and also in its law (Kochenov, 2017). The has thus been to what has been as failure of (Kosař p. see also 2021). European is an different where the CJEU that as such cannot be and judicial independence The are as in principle as with an unlawful as a court or individuals as in Getin Noble the is a task of the European Council CJEU on the basis of a it in and (Pech and Kochenov, domestic courts are only to the independence on an The judicial test has been down in and which The same test has been on by the CJEU in the LM in to concerning the independence of the as if it was that and courts the same The CJEU could have a different test for Rule of Law but it the same applied to human rights in that the issue of judicial independence also down to a human rights of the their right to a As the of the test the court assess whether the of the system in the from in of judicial independence. it does the individual be it the individual of the test where the judge and whether are to that the person be to a of a violation of their rights, also with regard to a lack of independence of the if and and with AG this of the test is if not is the CJEU and courts to in a about with established by law and judicial independence which means the fake courts and as who the are invited to assess their the is even appointed and independent individual judges cannot a system and 2020). The CJEU on the LM test in and matter how the that judges can their independence in the of and judicial The Court in the fundamental right to an independent tribunal established by law to the of ‘mutual interpretation to the to the that be on the of and on this also in and which the of the Polish Constitutional Court in that Article 19(1) TEU as such is not in with Polish This is not the CJEU in the name of but a one (Kochenov, to a which is not established by law, but is to some of with CJEU Getin Noble a judge in a system from rule of law as judicial for a to the on LM at the of human rights and the rule of law. The test is to even the most rule of law matter independent the individual to Poland today is particularly from the point of of fundamental rights, since it is well established by the CJEU and ECtHR that the courts in the are the of the Polish Supreme are thus and to in Article 6 ECHR rights violations of as CJEU very The CJEU a to test the judicial independence and standards as applied to its members as a of The of the on 1 in the of the of the Court, as the CJEU judges appointed by the members of the Court on the of The same not apply to AG since the not require to the of the Member of their from the on the Court the This some Member and a was to AG Sharpston's as by of the European in direct violation of the of the which not make such a The thus to the by a and appoint a as an and the principle of in CJEU and ECtHR case-law should have been applied to AG a with the in Poland, the President of the Court the Member States in the law and a member has not in breach of the and of judicial independence (see and Butler, 2022). AG Sharpston a of in front of the General Court and the action of the Member States the unlawful was the that of a appointed by someone who be to have been appointed are a is not in the of the in of possible gave the Member States and the Council several to their The Member States and the Court, in a of of an against a the President of the Court of Justice to de the and it as having of The was even before AG Sharpston about the against and was a to The President of the Court of Justice was clear that the action of the Member States was a Article and was matter with the of the Court's independence and outright the basic idea that Article 19 TEU the same and to the national and supranational courts The President to the on an application against an was not to the in a the CJEU does not independence from the Member The of the was such that the Member States were by the Court for in with the Court's composition the where their was not only but also contra legem and the of of the General Court what is the of the Court's if its composition as such is by the Court of Justice not to the cases and independence to the General Court which was de by the President of the Court of Justice in the Sharpston the answer based on its standards of judicial independence, as well as the key case-law on the matter from the ECtHR is quite clear and a Court to interference by the sovereign in direct with the and the of the law in a context where such are not is not a established by law’ in the sense of that an unlawfully appointed individual with Article 6(1) as an cannot and the is thus that the CJEU a different standard of judicial independence to itself – the one that its case-law related to the attacks on Polish courts and which is in violation of the ECtHR The of judicial independence established by the Court of Justice in the Sharpston cases is thus the most the standards in the European legal does not only the CJEU's case-law on of judges and of but also the ECtHR standard, which is the comes down to for a to interference by the with the Court's composition in the of any references to the law or basic The Sharpston cases are thus a applied to the Polish Rule of Law the Sharpston standard have attacks on the independence of the Polish courts as fully The most important court in the of a project of integration through law thus as short of meeting the basic European standards of what is a established by law’ – an dangerous is particularly is that it came in the context where the Court's unlawful the Member States was also that AG Sharpston only one to For the one and a decades the ECtHR has that ECHR are states EU law, that the protection of fundamental rights by the EU was in principle to that of the Convention the ECtHR also clear that this presumption is even if the was The in human rights protection can only be if a is For a long time the presumption to be well The of judicial independence standards in the EU, which several standards in direct of the basic requirements of Article 6(1) ECHR could an of a CJEU on preliminary references from the bodies not established by law and where the CJEU for unlawful interference by the Member States into its the whether the by the are the the EU in not a member of the the basic adherence to the key of Article 6(1) ECHR as well as law is to be of the CJEU – and this is what is from the and judicial independence by CJEU in the of ‘judicial ‘mutual trust’ and other to EU law. Worse still, is a of in the of and which were the principle of and where member states are to their and almost As the CJEU in EU to the EU law, Member States be to that fundamental rights have been by other Member meaning that in they not whether that other Member has in a the fundamental rights by the The is a the presumption of the lawful composition of national courts established in Getin Noble Bank is into the is In EU law to the proper functioning of the Convention in its territory as a of the CJEU's approach EU law above the essence of human with any human rights with the ECHR and fundamental rights of countless The ECtHR to an with EU law for a long and the it to already in in it that have its the In other cases it that in the context of the of the should not be applied and to the of fundamental in and the ECtHR – for the time in – that the was and from and was for not regard to its ECHR and violated Article 3 ECHR to where was a of (see and de 2021). regard to rights, the ECtHR has thus far been with states only whether a of a in the as we have is a these ECtHR cases were in the LM test it the of in of a of a breach of the fundamental right to a as we have the test is in if one ECtHR cases on judicial independence, the approach to be to the core of the rule of law – and since judicial independence and human rights are of the same – also human the CJEU for an that does not into violations of judicial independence and thus rights or outright that the in is not established Sharpston and Getin Noble Bank the the Convention system and EU law and can be This be for the European human rights protection but also for EU law. Member States are not in the position to EU they be a and a where they be to their EU law and ECHR be done to EU law and the European system of fundamental rights The and at CJEU case-law on judicial independence and not have to this a of European courts demonstrate how the vital rule of law issues can be without endangering the system of values underpinning the integration President position to the Court's to the ECHR case-law on and Polish numerous point to the that unprincipled about the core of a or about the human rights of the – the by the CJEU – is in the of the rule of law. clear standards with a context for the of the rule of law and fundamental rights protection while to apply any standard to itself is not the to and Getin Noble of judges to the Supreme 2 de and 2020, Council and of the of the Member States 10 2020, of the Sharpston Council and of the of the Member 4 2020, of the for cases and and 2020, cases and of the of the Supreme 19 Poland of 5 Banco de Santander 1 Poland of the Supreme and LM for Justice and in the system of cases and and 5 of the Court, ECtHR, Poland, of ECtHR, Poland, of ECtHR, Poland, of 3 ECtHR, and Poland, and of 8 ECtHR, Poland, of 7 ECtHR, and and of ECtHR, of 9 ECtHR, Ástráðsson of ECtHR, of ECtHR of ECtHR, of 6 ECtHR, Poland, of ECtHR, of 4 ECtHR, of of AG CJEU Polish Constitutional Court 7 at Polish Supreme Court of the formation of the and Law and