Guarantees of the Independence of CJEU Judges

https://doi.org/10.63189/RKZF9186

The Court of Justice of the European Union is classified in the current treaties as a judicial authority. For this reason, it is evident that the individuals presiding over it hold the status of independent judges and, consequently, enjoy a range of legally prescribed guarantees.

The requirement of independence discussed here is established by Article 253 of the Treaty on the Functioning of the European Union. This provision explicitly states that the judges of the Court of Justice are chosen from persons whose independence is beyond doubt, noting that they must possess the qualifications required for appointment to the highest judicial offices in their respective countries or be jurisconsults of recognised competence. Additionally, it introduces the principle of a fixed term of office. According to this principle, judges, appointed by common accord of the governments of the Member States after consultation with the relevant Committee, may be chosen for a period of six years, provided that one re-election is legally permissible.

This general norm is supplemented by more detailed regulations contained in lower-level acts. These create a series of guarantees designed to insulate the Court's judges from any external pressure and thus contribute to their issuing of rulings in conditions of independence and impartiality. In identifying them, we must, of course, remember that even the best and most optimal legal solutions cannot replace the personal qualities of the individual holding the office. A judge must possess these if their activity is to inspire the confidence of the parties to a given proceeding and the European public. In the case of the Court's judges, the ability to distance oneself from the interests of one's home state and government, the interests of political groups functioning in national and European structures, as well as one's own views and beliefs, is particularly necessary.

The aforementioned guarantees primarily include the principle of the irremovability of a judge. This is currently proclaimed by Articles 5 and 6 of the Statute of the Court of Justice of the European Union, which constitutes Protocol No. 3 to the Treaties. According to these provisions, apart from the expiration of their mandate or death, a judge may only step down by submitting a resignation to the President of the Court. Exceptionally, a judge may also be removed from office (or, in the case of a retired judge, deprived of the right to a pension). This occurs when, in the opinion of the judges and advocates-general of the Court, they no longer fulfill the required conditions or perform the duties arising from their office. It is clearly evident from this that a judge of the Court cannot be removed by a discretionary decision simply because they do not meet someone's expectations. Neither an EU institution nor the government of the state that recommended them has the power to do so, even if they view the judge's adjudicatory activity critically and do not agree with the content of the rulings issued.

The guarantee of the independent exercise of the office of a judge of the Court is also established by the immunity from legal proceedings granted to them. The institution of immunity, established under Article 3 of the Statute, protects the judge in respect of acts performed in an official capacity, including their—even controversial—oral and written statements. Furthermore, it covers both the period of holding office and the time following the end of their functions, extending to all types of criminal, civil, and administrative cases. Naturally, the immunity discussed here is intended to be permanent and constitutes a procedural obstacle precluding the possibility of conducting proceedings against a judge. It may only be waived by the Court sitting in full court, provided that the Court considers such a waiver to be in the interests of justice and that it does not infringe upon the judge's independence.

Another guarantee of the judicial independence of the Court's judges is the principle of incompatibility of office (known in Latin as the principle of incompatibilitas). Its application, aimed at eliminating the risk of pressure from EU and national institutions, political parties, interest groups, the media, and other entities, means that judges of the Court are unable to combine their office with other functions. This principle is specifically mentioned in Article 4 of the Statute. This provision precludes the simultaneous holding by judges of the Court of any political or administrative office and prohibits them from engaging in any other professional activity (whether gainful or not—unless the Council, by way of exception, exempts them from this prohibition), stating expressis verbis that this is intended to protect their impartiality and independence from national authorities. Naturally, the resulting norm should be understood as broadly as possible, assuming that the holding of functions and the undertaking of activities by judges of the Court is prohibited at both national and EU levels. However, one must not lose sight of the legally prescribed exceptions, specifically provided for in Article 8(3), (4), and (5) of the Code of Conduct for Members and former Members of the Court of Justice of the European Union. These regulations indicate that judges may be authorised to engage in external activities closely related to the performance of their duties, provided they obtain prior consent from the Court. In this regard, they have the right to: represent the institution or the court of which they are members at ceremonies and official events; participate in activities of European importance concerning, inter alia, the dissemination of Union law and dialogue with national and international courts, including participating in teaching activities, conferences, seminars, or symposia (only participation in teaching activities may involve remuneration); and hold unpaid positions in foundations or similar entities active in the fields of law, culture, art, social affairs, sports, or charitable activities, as well as in educational or research institutions, provided that these are not management or administrative positions that could compromise their independence or availability, or lead to a conflict of interest.

Finally, a guarantee of the independence of the Court's judges is the appropriate level of their remuneration. The rates involved are intended to provide judges with a sense of independence and financial stability, thus protecting the Court from the risk of corruption in the course of its activities. It is worth emphasizing that the judicial salaries of the Court are paid from the EU budget. This solution is designed to eliminate the temptation to act in the interest of one's own member state.

The remuneration of the Court's judges is mentioned in Article 243 of the Treaty on the Functioning of the European Union. This regulation indicates that the rules regarding the payment of salaries, allowances, and pensions are determined by the Council through appropriate legal acts. In the current legal state, these matters are governed by Council Regulation (EU) 2016/300 of 29 February 2016. According to the provisions of this act, a judge's basic salary constitutes a specific percentage of the basic salary of an EU official in the third step of the function group (Art. 2). Strictly speaking, the rate for the President of the Court is 138% (Art. 2(a)), while the rate for judges is 112.5% (Art. 2(d)). In addition, the regulation introduces certain allowances, such as family allowances and benefits (Art. 3), an expatriation allowance (Art. 4), and entertainment (lump-sum) allowances (Art. 5). Finally, it provides for severance pay (transitional allowances) paid after the end of the term of office (Art. 8) and guarantees a lifetime pension (Art. 9).

The above considerations show that EU legislation creates a system of normative guarantees designed to strengthen judicial independence and thus protect the Court from external pressure. However, this system is not perfect and may invite criticism for several reasons. I will write about that, however, in the next blog post.