Category Archives: Recent Case Law

EU law requirements of an independent and impartial tribunal previously established by law: judgment of the CJEU in the case of W.Ż.

In the case of W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C-487/19, 6.10.2021) the CJEU ruled on the transfer without consent of a judge of an ordinary Polish court. It held that the order by which the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, ruling at last instance and sitting as a single judge, dismissed the action of that judge must be declared null and void if the appointment of the single judge concerned took place in clear breach of fundamental rules concerning the establishment and functioning of the judicial system at stake.

In the case at hand, the President of the Republic had appointed the single judge concerned despite a decision by the Supreme Administrative Court ordering that the effects of the resolution of the National Council of the Judiciary recommending the appointment of this judge be suspended pending a preliminary ruling of the CJEU.

Among other things, the CJEU referred to the case-law of the European Court of Human Rights concerning in particular the right of members of the judiciary to protection from arbitrary transfer (§ 116), the concept of a “tribunal established by law”, the process of appointing judges (§§ 124-125), the requirement that the organisation of the judicial system does not depend on the discretion of the executive (§ 129) and the need to preserve the integrity of the appointment of judges as a way to avoid reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned (§ 130). In Dolińska-Ficek and Ozimek, the European Court of Human Rights “fully subscribed” to the CJEU’s reasoning (§ 328).

The CJEU also recalled that by virtue of Article 52(3) of the EU-Charter, it must ensure that the interpretation which it gives to the second paragraph of Article 47 of the EU-Charter (right to effective judicial protection) safeguards a level of protection which does not fall below the level of protection established in Article 6 § 1 of the Convention (right to a fair trial), as interpreted by the European Court of Human Rights (§ 123). However, there is no explicit inquiry or demonstration by the CJEU on whether the Convention level of protection has been respected in the present case.

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Rights of the defence and mutual recognition of financial penalties: judgment by the CJEU in the case of Prokuratura Rejonowa Łódź-Bałuty

In the case of Prokuratura Rejonowa Łódź-Bałuty (C-338/20, 6.10.2021), which concerned Framework Decision 2005/214 on the application of the principle of mutual recognition to financial penalties, the CJEU drew on the case-law of the European Court of Human Rights on the scope of Article 6 of the Convention (fair trial) in order to conclude, by reference to Article 52(3) of the EU-Charter, that addressees of financial penalties falling within the scope of Framework Decision 2005/214 are entitled to rely on the fundamental rights enshrined in the second paragraph of Article 47 and Article 48(2) of the EU-Charter, notably the right to be informed in a language which they understand of the essential elements of a decision imposing such a financial penalty (§§ 29-30). The CJEU furthermore relied on the case-law of the Strasbourg Court in identifying these essential elements (§§ 35-38).

That being so, the CJEU ruled that the competent authority of the executing Member State may, on the basis of Article 20(3) of Framework Decision 2005/214, oppose the recognition and execution of a decision imposing a financial penalty on the addressee thereof where that decision is notified to him or her without a translation of these essential elements into a language which he or she understands and without giving him or her, where appropriate, the possibility of obtaining such a translation (§ 40).

In this connection, the CJEU recalled that according to Article 3 of Framework Decision 2005/214, that Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. For this reason, Article 20(3) of that framework decision indeed provides that the competent authority of the Member State of execution may refuse to recognise and execute a decision requiring payment of a financial penalty in the event of infringement of fundamental rights or fundamental legal principles (§ 26).

One may however wonder why the EU legislature has made the refusal to recognise and execute such a decision only optional (“may refuse”) and not mandatory (“shall refuse”). It may be due to the fact that Article 20(3) refers to situations giving rise “to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed”, thus suggesting some uncertainty as to whether those rights and principles have indeed be breached in the concrete circumstances of the case. By contrast, the CJEU in § 26 refers to situations apparently not giving rise to such uncertainty (“in the event of infringement of fundamental rights or fundamental legal principles”). Maintaining the optional character of a refusal to recognise and execute a decision imposing a financial penalty in such circumstances would not appear entirely consistent with the mandatory principle stated in Article 3 of the Framework Decision (“shall not”), referred to above.

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The Polish Chamber of Extraordinary Review and Public Affairs not an “independent and impartial tribunal established by law”: judgment by the ECHR in the case of Dolińska-Ficek and Ozimek v. Poland

In the case of Dolinska-Ficek and Ozimek v. Poland (49868/19 and 57511/19, 8.11.2021) the European Court on Human Rights ruled on the requirements of the right to an independent and impartial tribunal established by law, protected by Article 6 § 1 of the Convention. It did so in the context of applications brought by two Polish judges who had applied for vacant judicial posts in other courts but had not been recommended for those posts by the National Council of the Judiciary (NCJ). They complained that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (Chamber of Extraordinary Review), which had examined their appeals against the resolutions of the NCJ, had not been a “tribunal established by law” and had lacked impartiality and independence.

In this connection, the Court recalled: Although the right to a “tribunal established by law” is a stand‑alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. (§ 315)

The Court found that the procedure for appointing the judges concerned had been unduly influenced by the legislative and executive powers. This had amounted to a fundamental irregularity which had adversely affected the whole process and compromised the legitimacy of the Chamber of Extraordinary Review which had examined the applicants’ cases. The Chamber of Extraordinary Review was therefore not an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1.

In reaching that conclusion, the Court, as previously in Reczkowicz v. Poland, amply referred to CJEU case-law, while applying its own methodology, notably the three-step test formulated in the case of Guðmundur Andri Ástráðsson v. Iceland for the assessment of whether a court can be considered a “tribunal established by law” (§ 272).

The Court identified two manifest breaches of domestic law which pertained to fundamental rules of the procedure for the appointment of judges. A first such breach resulted from a radical change of the election model following which the fifteen judicial members of the NCJ were no longer to be elected by their peers but by Parliament. This change had been initiated by a new jurisprudence of the Constitutional Court which the Court considered arbitrary, on account of the absence of a comprehensive, balanced, and objective analysis of the relevant circumstances in Convention terms (§ 317). The Court thereby relied on a similar conclusion by the Supreme Court which had itself conducted an extensive analysis of the domestic legislation in the light of the Convention case-law relating to Article 6 and the CJEU’s ruling in the case of A.K. and Others, to which the Court also extensively referred (§§ 305-306).

The second manifest breach of domestic law resulted from the President of Poland’s appointment of judges to the Chamber of Extraordinary Review despite an interim measure by the Supreme Administrative Court ordering the stay of the implementation of a Resolution by the NCJ recommending candidates for twenty posts of judges in the Chamber of Extraordinary Review, pending its examination of the appeals brought against that Resolution. The Court found that in so doing, the President of the Republic had demonstrated an attitude which could only be described as one of utter disregard for the authority, independence, and role of the judiciary (§ 330) and as blatant defiance of the rule of law (§ 338). It thereby relied on similar conclusions by the CJEU in the cases of A.B. and Others and W.Ż. (§§ 324, 327-328)

DOLINSKA-FICEK-AND-OZIMEK Download PDF

The ECHR recalls its case-law on the obligation for courts to give reasons when dismissing a request for a preliminary ruling by the CJEU: decision in the case of Quintanel v. France

By a decision in the case of Josette Quintanel v. France and 14 other applications (no. 12528/17 et seq., 17.6.2021) the ECHR declared inadmissible 15 applications against France which, inter alia, complained about the alleged failure by several administrative courts to properly motivate their refusal to grant the applicants’ requests that some EU law issues be referred to the CJEU for a preliminary ruling.

The ECHR first recalled that only the national courts which, under Art. 267 TFEU, are bound to turn to the CJEU for a preliminary ruling, i. e. those courts against whose decisions there is no judicial remedy under national law, are also under an obligation, flowing from Art. 6 of the Convention, to give reasons when dismissing a request by a party to the domestic proceedings for an EU law issue to be submitted to the CJEU (§ 89).

Consequently, in the present case only the Conseil d’Etat (Supreme Administrative Court) was bound to give reasons for its refusal to refer the case to the CJEU, which it had actually not done. However, the ECHR noted that a lower administrative court acting in the same case had previously well explained that in view of relevant CJEU case-law on the issue at hand such a referral was not required under Art. 267 TFEU. This being so, the ECHR considered that having regard to the proceedings as a whole, an answer compliant with Art. 6 of the Convention had been given to the applicant who had therefore been enabled to understand the reasons underlying the contested dismissal (§ 90). Consequently, Art. 6 had not been breached.

QUINTANEL-ET-AUTRES-c.-FRANCE Download PDF (only in French)

Freedom to wear visible political, philosophical or religious signs in the workplace: judgment of the CJEU in the case of Wabe and MH Müller Handel

In the cases of Wabe and MH Müller Handel (joined cases C-804/18 and C-341/19, 15.7.2021) the CJEU ruled on prohibitions on the wearing of visible forms of expression of political, philosophical or religious beliefs in the workplace, thereby applying Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The two complainants before the referring courts, respectively a special needs carer and a sales assistant, had both been prevented from wearing an Islamic headscarf on the basis of internal rules, applicable in their respective companies, which prohibited the wearing of any visible signs of political, philosophical or religious beliefs in the workplace.

Pursuant to Directive 2000/78, and in keeping with its previous case law (G4S Secure Solutions and Bougnaoui and ADDH), the CJEU carefully distinguished between direct and indirect discrimination on grounds of religion or belief. It thereby recalled that by virtue of Article 52(3) of the EU-Charter of fundamental rights, the right to freedom of conscience and religion, enshrined in Article 10(1) of the EU-Charter, corresponds to the right guaranteed in Article 9 of the Convention and has therefore the same meaning and scope as the latter provision (§§ 48 and 81). However, the CJEU did not draw any conclusions from this correspondence in terms of the limitations to which that right can be subjected.

Rather, it assessed the issue through the prism of the requirement of equal treatment, as prescribed by Directive 2000/78, which is presented as a specific expression of the general principle of non-discrimination enshrined in Article 21 of the EU-Charter (§ 62). At the same time, the CJEU stressed that the interpretation of Directive 2000/78 had to be done having regard not only to Articles 10 and 21 of that Charter but also to the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions (Article 14(3) of the EU-Charter) and the freedom to conduct a business (Article 16 of the EU-Charter) at stake in the present cases (§ 84).

Interestingly, the CJEU also considered that a national provision such as Article 4(1) of the German Basic Law (Grundgesetz), which requires limitations to the freedom of religion and conscience to be justified by the demonstration of specific rather than general risks, could be applied at domestic level as a provision which is more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of Directive 2000/78. Consequently, such a national provision offering a higher protection of the freedom of religion and belief than did Directive 2000/78 could be taken into account in examining the appropriateness of a difference of treatment indirectly based on religion or belief (§ 89).

One might wonder whether this opening towards more protective domestic provisions requiring limitations to the freedom of religion and belief to be justified by evidence of specific rather than general risks might perhaps also ease the tension seemingly existing between the Luxembourg case-law described above and the Strasbourg case-law on the same issue based on Article 9 of the Convention, notably the Eweida jurisprudence (Eweida and Others v. the United Kingdom, 15.1.2013, 48420/10, 59842/10, 51671/10 and 36516/10) which is indeed also based on a case-by-case approach and, thus, necessarily focuses on specific risks.

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Disciplinary Chamber of the Polish Supreme Court: judgment of the ECHR in Reczkowicz v. Poland

In the case of Reczkowicz v. Poland (22.7.2021, 43447/19), the ECHR found that the Disciplinary Chamber of the Polish Supreme Court had not been a “tribunal established by law” and had lacked impartiality and independence. After abundently referring to several international legal instruments, including the case-law of the CJEU on the recent reform of the judiciary in Poland (notably joined Cases C‑585/18, C-624/18, C-625/18), the ECHR stated inter alia:

The right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. … It is also to be reiterated that although the right to a “tribunal established by law” is a stand alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. (§ 260)

RECZKOWICZ-v.-POLAND Download PDF

Disciplinary regime applicable to Polish judges: judgment of the CJEU in the case of Commission v. Poland

In the case of European Commission v. Poland (Régime disciplinaire des juges) (C-791/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges. In line with previous rulings (notably A.K. and Others, C-585/18, C-624/18, C-625/18; see below), the CJEU thereby expansively dealt with the requirements to be fulfilled under EU law for a domestic court to be independent and impartial. From a Convention perspective, the following aspects of the CJEU’s reasoning would appear to be noteworthy.

First, on the general relationship between EU law and the European Convention on Human Rights, the CJEU confirmed that pursuant to Article 52(3) of the EU-Charter, its interpretation of Articles 47(2) and 48 of the Charter must ensure a level of protection which does not disregard the one guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights (§ 165).

The approach adopted by the CJEU in this case would nonetheless appear to be somewhat different from the one usually adopted by the ECHR in similar cases. This could be explained by the fact that by their very nature, the complaints raised by the European Commission against the new disciplinary regime applicable to judges in Poland required the CJEU to look at the situation from an institutional perspective, covering simultaneously the independence and the impartiality of the judges concerned, considered in the abstract. Thus, the test and its application read as follows:

Taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. Such a development constitutes a reduction in the protection of the value of the rule of law for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment. (§ 112; see also §§ 59, 86, 98, 139).

By contrast, the ECHR primarily looks at the issues from the point of view of the individual applicant, thereby distinguishing between the independence of a judge and his/her impartiality and, as far as the latter is concerned, requiring any doubts of an applicant to be objectively justified (see, e. g., Morice v. France, 23.4.2015, 29369/10, § 76).

However, both Courts converge in emphasizing the importance of appearances in this field as an essential means of preserving the trust which justice in a democratic society governed by the rule of law must inspire in the citizens (see, e. g., Micallef v. Malta, 15.10.2009, 17056/06, § 98, recalling that “justice must not only be done, it must also be seen to be done“).

Finally, against this background, it comes as no surprise that on the issue of whether a court can be considered as “established by law”, the CJEU, in contrast with its approach on the other issues addressed, explicitly relied on Strasbourg case-law (§§ 168, 171). The reason would appear to be that under Article 6 of the Convention too, the answer to this issue can only be given from an institutional perspective, which is much closer to the perspective adopted by the CJEU in the present case. In this connection, see also the recent judgment in the case of Reczkowicz v. Poland (22.7.2021, 43447/19) in which, after abundantly referring to the case-law of the CJEU concerning the recent reform of the judiciary in Poland, the ECHR found that the Disciplinary Chamber of the Polish Supreme Court could not be considered a “tribunal established by law” (§ 277) (see also the post on this judgment, on this page).

Commission-v.-Poland Download PDF

Right to silence under the EU-Charter – judgment of the CJEU in the Consob case

In the Consob case (2.2.2021, C-481/19), which concerned proceedings relating to the lawfulness of penalties imposed for offences of insider dealing and failure to cooperate in the context of an investigation conducted by the Italian National Companies and Stock Exchange Commission (Consob), the CJEU ruled on the interpretation of Articles 47 and 48 of the EU-Charter and on the validity and interpretation of provisions contained in two legal instruments dealing with market abuse (Directive 2003/6 and Regulation 596/2014). When inquiring about the protection of the right to silence provided by Articles 47 and 48 of the EU-Charter, the CJEU drew to a large extent, by virtue of Article 52(3) of the EU-Charter, on the case-law of the ECHR relating to that right (para. 36-43).

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Manifest deficiency in the execution of a European arrest warrant – judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France

In the landmark case of Bivolaru and Moldovan v. France (25.3.2021, 40324/16 and 12623/17), the ECHR ruled on the execution of two European arrest warrants (EAWs) for the purpose of the service of prison sentences in Romania. It found a violation of Article 3 of the Convention (prohibition of ill-treatment) in respect of one of the applicants and no violation in respect of the other. The details of the case are summarized in the press release below.

The judgment is noteworthy as it confirms and clarifies the principles to be applied by the domestic courts of the EU member States in the field of mutual recognition.

First of all, the judgment once more confirms that the Convention requires EU law to be applied in conformity with it. It equally confirms and illustrates the competence of the ECHR to assess that conformity.

The judgment furthermore recapitulates the Court’s doctrine on mutual recognition, as set out in Avotins v. Latvia (23.5.2016, 17502/07), which is the leading case on this topic. It stresses in particular that:

The presumption of equivalent protection, as established in Bosphorus v. Ireland (30.6.2005, 45036/98), in principle applies when by virtue of a mutual recognition mechanism domestic courts are left with no discretionary power and are legally bound to presume that another member State sufficiently respects fundamental rights. When this presumption applies, the Convention will be breached only if there has been a manifest deficiency in complying with the Convention, which is a lower standard than the ordinary violation.
In cases concerning the compatibility of the execution of an EAW with Article 3 of the Convention, any discretionary power of the judicial authority of the executing State in this field is limited to the assessment of the facts and has to be exercised within the framework strictly delineated by the case-law of the CJEU. The presumption of equivalent protection therefore applies.
The principle of mutual recognition must nonetheless not be applied in an automatic and mechanical way, to the detriment of fundamental rights.
Consequently, if a serious and substantiated complaint is raised before domestic courts to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. In that case they must apply EU law in conformity with the Convention.
These principles apply to all mechanisms of mutual recognition.

The judgment also provides some interesting information on how these principles play out in the field of European arrest warrants.

In this respect, it first notes the convergence between the case-law of the two European Courts as regards the assessment of the individual risks of ill-treatment to which persons can be exposed as a consequence of the execution of a EAW. At the same time, it stresses the different methodology applied by each Court: whereas the CJEU applies a two-step examination requiring evidence of systemic or generalised deficiencies in the issuing State before any individual risk resulting from these deficiencies can be identified (see e.g., below on this page, CJEU 17.12.2020, Openbaar Ministerie, joined cases C-354/20 PPU and C-412/20 PPU, para. 53-56), the ECHR focuses immediately on the individual risks incurred by the person concerned.

Thus, the convergence noted by the ECHR relates to the final individual test, not to the respective methodologies applied by the European Courts, which remain different and are therefore not interchangeable. This is illustrated by the fact that in the case of Moldovan, the ECHR found a violation of Article 3 on the ground that the French courts had transferred the applicant in spite of the fact that they had before them sufficient factual elements indicating that he would be exposed to a serious risk of ill-treatment by reason of the detention conditions in the prison in which he would be detained after his transfer. These factual elements only concerned the personal situation of Mr Moldovan, not any systemic or generalized deficiencies. At no point in this judgment did the ECHR inquire about such deficiencies in the Romanian prison system, contrary to the French courts which were bound by EU law to apply the two-step examination. The ECHR nonetheless found a violation of Article 3 on account of the fact that the individual risk incurred by Mr Moldovan had not been correctly assessed by those French courts.

This was the first time the Court rebutted the presumption of equivalent protection, because of a manifest deficiency in applying a mutual recognition mechanism. Thus, regardless of the methodology applied by the domestic courts, what matters from a Convention point of view is the correct application of the Convention standards in any individual case governed by EU law.

Finally, the judgment also illustrates the fact that in the field of mutual recognition the test to be applied in respect of complaints not covered by the presumption of equivalent protection (because of the discretionary power left to the judicial authority of the executing State and/or the absence of relevant CJEU case-law on the fundamental right at issue) is the higher standard of whether there has been an ordinary violation of the Convention, not whether there has been a manifest deficiency (§§ 131-132).

BIVOLARU-ET-MOLDOVAN Download PDF (available only in French)

Bivolaru-and-Moldovan-press-release Download PDF

More information on the implications of this judgment is provided in the following article:

The European arrest warrant under the Convention Download PDF

Degrading treatment and deprivation of liberty in the Röszke transit zone – judgment of the European Court of Human Rights in the case of R.R. and Others v. Hungary

In the case of R.R. and Others v. Hungary (2.3.2021, 36037/17, not final), the European Court of Human Rights found several breaches of the Convention on account of the de facto deprivation of liberty (Art. 5) and the living conditions of asylum-seekers (Art. 3) in the Röszke transit zone, on the Hungarian-Serbian border.

The ECHR distinguished the circumstances prevailing in this case from those which had recently lead it, in the case of lias and Ahmed v. Hungary (21.11.2019, 47287/15), to find no violation of these provisions of the Convention (see below, the post on this judgment). Significant differences indeed lay in the fact that the applicants, an Iranian-Afghan family of five with three young children, were particularly vulnerable and that their stay in the transit zone had by far exceeded the time needed for the examination of an asylum request, due to inaction on the part of the Hungarian authorities.

Interestingly, the ECHR in its reasoning also relied on several prescriptions of the EU Reception Directive (2013/33) which in its opinion had not been complied with by the authorities (§§ 54 and 58).

With regard to the question whether there has been a deprivation of liberty, the judgment confirms the case-by-case approach followed by the ECHR in such matters, which is in contrast with the more abstract approach resulting from the application of Union law, as illustrated by the rulings of the CJEU in the cases of FMS and Others (C-924/19 PPU and C-925/19 PPU) and Commission v. Hungary (C-808/18; see below, the posts on these judgments). There is nonetheless some valuable interaction between the two approaches. Not only did the ECHR rely on Union law in its reasoning, making its requirements relevant in assessing compliance with the Convention, but by doing so it indirectly also provided some ex post assessment as to whether Union law was respected in the present case, along with its findings on whether the Convention was violated or not.

R.R.-AND-OTHERS-v.-HUNGARY Download PDF