Dóra Horváth: Case assignment practice of the Court of Justice of the European Union in cases relating to the principle of the rule of law (GJ, 2025. Különszám, 87-96. o.)

Abstract - Case assignment practice of the Court of Justice of the European Union in cases relating to the principle of the rule of law

The case allocation system of the European Court of Justice has been subject to criticism in the literature, and these issues are even more sensitive in the context of rule of law cases. Despite the lack of regulation of case allocation, informal rules and principles can be identified in practice which promote the principles of reasonableness, efficiency, and cost-effectiveness as well as the constitutional values of fair trial and the rule of law. After reviewing the practice of case allocation in matters of the rule of law and examining its specific features, a conclusion of the study is that in cases related to the principle of the rule of law, the participation of the judge of the Member State concerned in the case could not only be tolerated but also recommended.

Absztrakt - Az Európai Unió Bíróságának az ügyek kiosztására vonatkozó gyakorlata a jogállamiság elvével kapcsolatos ügyekben

Az Európai Unió Bíróságának ügyelosztási rendszere kritika tárgyát képezte a szakirodalomban, és ezek a kérdések még érzékenyebbek a jogállamiságra vonatkozó ügyek esetében. Az ügyelosztás szabályozásának hiánya ellenére a gyakorlatban azonosíthatók olyan informális szabályok és elvek, amelyek elősegítik a méltányosság, a hatékonyság és a költséghatékonyság elveit, valamint a tisztességes tárgyalás és a jogállamiság alkotmányos értékeit. A jogállamiság kérdéseiben alkalmazott ügyelosztási gyakorlat áttekintése és annak sajátosságainak vizsgálata után a tanulmány arra a következtetésre jut, hogy a jogállamiság elvével kapcsolatos ügyekben az érintett tagállam bírájának az ügyben való részvétele nemcsak tolerálható, hanem ajánlatos is.

I. Introduction

The principle of the rule of law is a fundamental value protected under EU law as well as by the constitutions of the Member States. The judicial protection of the rule of law principle is a relatively new phenomenon in EU case law and is mostly related to the principle of judicial independence. The protection of the rule of law through judicial independence appeared as an essential EU constitutional standard in the landmark decision in the Portuguese Judges case in 2018.[1] Since then, this new area of EU law related to the protection of the rule of law has evolved dynamically in the case law of the European Court of Justice (ECJ), in a setting of constant political tension between the EU and Member States. For the past decade, the protection of judicial independence has become a pressing issue in the European legal sphere, since EU institutions have addressed the phenomenon of rule of law backsliding in certain Central and Eastern European Member States. On the other hand, as the constitutional role of the ECJ evolves in relation to the protection of the rule of law, the ECJ has been accused of political bias in its review of Member State regulations.

Since in these cases the ECJ generally enjoys a broader discretion, there is a general risk of the ECJ being perceived as overstepping its mandate.[2] The baseline of this study is that the legitimacy of the exercise of powers by the ECJ especially in relation to constitutional principles, can be strengthened primarily by adherence to the requirements of fair procedure, judicial independence, and guarantees of fair trial. The study examines the ECJ's procedures related to the protection of the rule of law, specifically from the perspective of case allocation. The assessment of the discretionary power of the President of the ECJ (President) to assign cases is highly controversial in legal literature, with critical comments being particularly salient regarding politically sensitive cases, such as those relating to the rule of law. Do case allocation rules and practices of the ECJ serve the appearance of judicial independence and impartiality, professionalism, transparency, and efficiency? In the course of this study, I seek to examine this topic relying on both doctrinal and empirical research methods.

II. The rules of the ECJ's case allocation and its constitutional standards

According to Article 15(1) of the Rules of Procedure of the Court of Justice of the European Union (Rules of Procedure), the President shall designate the judge-rapporteur as soon as possible after the document instituting the proceedings has been lodged. Neither the Rules of Procedure nor any other published document regulates the procedure for appointing the judge-rapporteur or the judges to the case. While most other legal systems prohibit discretionary case allocation, and the General Court also follows a list of abstract and predetermined allocation criteria, there are no pre-established rules for the allocation of cases, leaving the President with a wide margin of discretion.[3] Similarly to the assignment of the judge rapporteur, the assignment of the advocate general consists of a discretionary decision made by the First Advocate General.[4]

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The lack of detailed rules regarding case allocation does not imply complete lack of standards. Although the ECJ has not yet ruled on the conformity of its case allocation rules with the principle of judicial independence, a more recent decision of the ECJ in 2024, the Valančius judgement,[5] has laid down relevant principles. The case itself concerns the appointment of judges of the General Court also regulated in a separate provision of Article 19 (2) TEU, and Article 254 TFEU. The ECJ in this decision before turning to the questions of appointment has established that "the requirement of judicial independence laid down inter alia in Article 19 TEU gives concrete expression to one of the fundamental values of the European Union and its Member States enshrined in Article 2 TEU, which define the very identity of the European Union as a common legal order and which must be complied with both by the European Union and the Member States".[6] The ECJ then briefly revised its practice highlighting the two general aspects of judicial independence (independence in the strict sense and impartiality) as well as the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements.[7]

Turning to the ECJ requirements on judicial case allocation, case law suggests that the question of judicial case allocation is linked to the requirement of a fair trial, more specifically to the principle of judicial independence.[8] With regard to the conditions for the designation of a disciplinary court, the ECJ, referring to the practice of the European Court of Human Rights (ECtHR)[9], has established that it is contrary to Article 19 (1) TEU if the reallocation of a case to a court in another jurisdiction falls within the discretionary power of a specific forum. National provisions have conferred on the president of the disciplinary council the discretionary power to designate the disciplinary tribunal competent to hear disciplinary cases against judges of the ordinary courts, without the applicable rules specifying the criteria to be applied in making such a designation. The ECJ found that in the absence of such criteria, that such power may be used, inter alia, to ensure that certain cases are assigned to certain judges by not assigning them to other judges, and to exert pressure on the judges thus designated.[10] Although neither the ECtHR nor the ECJ has established that discretionary case allocation in general would violate the principle of judicial independence, it is clear from the above case-law that the lack of legislation on case allocation may pose a risk to judicial independence, impartiality, and the appearance thereof.