Dóra Horváth: European standard, national solutions - Judicial independence in the practice of the German and Hungarian constitutional courts[1] (ABSz, 2024. Különszám, 63-73. o.)

Abstract

The study focuses on the constitutional protection of judicial independence in the practice of the German Federal Constitutional Court and the Hungarian Constitutional Court in view of the evolving case-law of the Court of Justice of the European Union (CJEU). The study outlines the development and requirements laid down by the CJEU concerning judicial independence, followed by the comparative analysis of the scope of constitutional protection of judicial independence, focusing on selected aspects of judicial independence including the appointment of judges, the principle of irremovability, remuneration of judges, and then the principle of the prohibition of influence and adherence to law. The findings of this research confirm that despite the difference between the German and Hungarian legislative model, there are significant similarities between the scope of constitutional protection and the constitutional standards applied, and both constitutional courts provide for essential guarantees of judicial independence in line with the requirements and standards adopted by the CJEU.

Keywords: judicial independence, appointment of judges, irremovability, remuneration, Court of Justice of the European Union, effective judicial protection, rule of law, separation of powers, disciplinary measures, caseload, appearance of independence

I. Introduction

The principle of judicial independence is a core constitutional principle of national constitutional democracies, an esential guarantee of the rule of law and the principle of seperation of powers. Judicial independence is part of the constitutional tradition common to both the Member States and the European Union, governed by the procedural autonomy of the Member States pursuant to Article 4 (2) of the Treaty on European Union (TEU). Within the last decade the Court of Justice of the European Union (CJEU) has made the protection of judicial independence in the Member States one of its priorities, developing the common minimum standards of judicial independence, which it considers binding on the Member States as a matter of EU law.

In view of the developing EU standard, it is particularly important to explore and compare the different national constitutional practices of judicial independence. In this article I undertake to present the constitutional jurisprudence concerning judicial independence of the German Federal Constitutional Court (GFCC) and the Hungarian Constitutional Court (HCC) with special regard to the aspects that have been dealt with by the CJEU. The comparison of the two constitutional practice is primarily based on the fact that both the Fundamental Law of Hungary and the Basic Law of the Federal Republic of Germany (Grundgesetz) expressly provide for the protection of judicial independence, and the aspects of this principle covered by the practice of the GFCC and the HCC overlap. It is also important to point out, that the case-law of the GFCC has a prominent persuasive authority in the interpretation of fundamental rights, its case-law influences not only national constitutional courts such as the HCC but also international and supranational courts, like the European Court of Human Rights or the CJEU.

The study first outlines the development and requirements laid down by the CJEU concerning judicial independence, followed by the constitutional legislative framework for judicial independence in the Fundamental Law of Hungary and the Basic Law of the Federal Republic of Germany. Then, in the main part of this study, based on the practie of the HCC and the GFCC, I examine the scope of constitutional protection and then the related practice focusing on selected aspects, including the appointment of judges, the principle of irremovability, remuneration of judges, and then the principle of the prohibition of influence and adherence to law.

II. The principle of judicial independence in the practice of the CJEU

The principle of judicial independence is of particular and fundamental importance in EU law. It is a guarantee of the protection of the rights deriving from EU law as part of the principle of effective judicial protection

- 63/64 -

enshrined in Article 19 (1) TEU, which forms part of the rule of law (Article 2 TEU). The right to an independent and impartial judge established by law is also enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (Charter), as well as in Article 6 of the European Convention of Human Rights.[2]

In the case Associação Sindical dos Juízes Portugueses[3] the CJEU established its jurisdiction despite the fact that the claim was based solely on the possible restriction of judicial independence. Although the CJEU did not find the lowering of judges' salaries to be a violation of EU law, it established as an obligation to the Member States arising directly from Article 19 (1) TEU to maintain the judicial independence of their national judiciaries.[4] The CJEU also ruled that while the organisation of justice in the Member States falls within the competence of the Member States, when exercising that competence they must comply with the obligations under EU law.[5] The CJEU also established the principle of non-regression in the national level of protection of the rule of law, meaning that any change of legislation that results in a lower level of protection of effective judicial protection constitutes a violation of EU law.[6] The CJEU provides for external judicial independence that is protection from hierarchical constraints, instructions, influence or pressure, and internal independence, that is linked to the impartiality of judges.[7] The guarantees of independence and impartiality cover the composition of the court, the appointment of judges, length of service and grounds for abstention, rejection and dismissal of its members, the remuneration of judges, judicial and prosecutorial immunity, employment, social security and retirement.[8] Based on the CJEU, impartiality and independence of judges and courts must be based on the so called social perception test according to which citizens must not have the impression that there are factors that affect the imperviousness of judges, especially vis-à-vis the executive and the legislative branches.[9]

With regard to the appointment of judges the CJEU established that "the mere fact that the legislative authorities play a part in the process for appointing a judge does not give rise to a relationship of subordination to those authorities or to doubts as to the judge's impartiality, if, once appointed, he or she is not subject to any pressure and does not receive any instruction in performing the duties of his or her office".[10] Consequently, the CJEU found no indication to an infringement of judicial independence in the fact that the appointment, appraisal and promotion of the judges in Germany was in the remit of the executive. On the other hand, the CJEU underlined that in cases where there is a number of factors which call into question the independence of a committee involved in the appointment of judges, then those factors, when taken together may throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable. On that basis, elements of the legislative reform in Poland were found in violation of EU law, considering for example, that the new legislation on the appointment of judges was introduced following another legislative change lowering of the retirement age of the judges.[11] The CJEU also underlined the importance of the principle of irremovability of judges. Based on this principle the CJEU found the compulsory lowering of the retirement age of Polish Supreme Court judges[12] as well as the ordinary judges[13] were both in violation of the principle of judicial independence considering that it has forced a significant number of judges into retirement, while - in case of the Supreme Court judges the Polish president - and in case of the ordinary judges the minister of justice had discretionary power to extend the term of office of judges, as such decision could be based on 'vague and unverifiable' criteria. The CJEU stated that the irremovability of judges was not an absolute principle but its restriction needed a legitimate and compelling aim, and that it needed to be proportionate.[14] The CJEU established that a provision of Polish law that allows the minister of justice to second judges to a higher court, and then to terminate their secondment at his will was also incompatible with judicial independence as the seconded judges could be "influenced by the fear of termination of the secondment".[15] The CJEU found that the disciplinary chamber within the polish Supreme Court, that decides on matters relat-