The examples of Poland and Hungary have shown that governments can be tempted to undermine constitutional courts in order to bring the judiciary under their control. A study by the Universitat Oberta de Catalunya (UOC) has concluded that the case law of the Court of Justice of the European Union (CJEU) on judicial independence and impartiality can have a positive impact on Member States, even those not facing a rule of law crisis. The research also highlights the existing shortcomings in the legal frameworks and procedures for appointing constitutional court judges in countries such as Spain and France, which "could potentially undermine judicial independence".

"The results show that even in consolidated democracies, there is scope for improving the protection of judicial independence. The research carried out contributes to the broader European debate on the harmonization of standards of judicial independence," said Bettina Steible, a researcher in the Geopolitics, Conflict and Human Rights research group (GEOCONDAH) of the UOC's Faculty of Law and Political Science.


Safeguarding the rule of law

The CJEU is a body that plays an important role in ensuring respect for the principle of judicial independence at the national level, particularly in the current context where the rule of law is under threat. "The principles developed by this court are binding on Member States, which means that the standards established on the independence of the judiciary are applicable to all EU states," said Steible.

In this context, the CJEU has developed a broad body of case law addressing many aspects of judicial independence, taking into account not only the legal frameworks governing appointment procedures, but also their practical application, in order to assess whether there is undue influence of the legislature or the executive on members of the judiciary. "The rules developed by the CJEU cover a variety of aspects, including the appointment process, the duration of the term, the conditions for exercising the term, the absence of external pressure, impartiality and the grounds for disqualification, recusal and dismissal of its members," said Steible.

Despite this influence, Steible stressed that EU Member States remain free to design their own model of constitutional justice, "provided they respect these indispensable minimum requirements." A concrete example of the intervention of the European Court is the case European Commission vs. Poland (C-619/18). In this case, the CJEU ruled that the Polish reform lowering the retirement age of Supreme Court judges was incompatible with the principles of judicial independence and the prohibition of political interference in the judiciary. Specifically, the reform allowed the President of the Republic of Poland to decide at their discretion whether judges could remain in office beyond the new retirement age, which created a relationship of subordination and undermined judicial independence. As a result, Poland had to reverse this reform and reinstate the affected judges. "This case shows how the CJEU can act as a safeguard against attempts by a Member State to weaken the rule of law, reinforcing standards of judicial independence that must be respected by all EU States," Steible stressed.

An analysis of these actions shows that, in addition to specific cases, they can also have a "positive impact" on the rest of the Member States, highlighting "the possible anomalies that may exist in the procedures for the appointment of national constitutional judges", she said.


The challenges in the case of Spain

The study also analyses the situation in Spain and France, as examples of Member States where the constitutional organization of the judiciary is not fully in line with the case law of the CJEU. Regarding the Spanish case, Steible stressed that the rule of law is not in danger, but might need "obvious" improvements, and that European standards in the matter can be useful in a spirit of judicial dialogue.

Specifically, she pointed to the need for improvements regarding the practice of having political parties involved in the process of appointing judges to the Constitutional Court: “It would be advisable to implement effective anti-blocking mechanisms, reduce political party influence on decisions and ensure that candidates are selected by consensus, prioritizing their qualifications and professional prestige, in accordance with the spirit of the Constitution. These improvements are also echoed in European standards, especially those developed by the Venice Commission."

For Steible, although these deficiencies "do not represent a real threat to the rule of law, for now, they could well become one if political alternatives that are less respectful of democratic principles come to power, something that can never be ruled out", she said.


Dialogue between the EU and the Member States

In this context, the research also highlights the importance of establishing a European dialogue on the meaning of constitutional justice and judicial independence. According to the UOC researcher, this debate is "essential" to ensure that the constitutional identities of both the EU and its Member States are respected and mutually reinforced. “This proposal for dialogue reflects a balanced and constructive approach to resolving tensions between EU standards and national practices, suggesting that the development of a common European understanding on constitutional justice is possible without undermining national sovereignty," explained Steible.

EU law would thus come, in her words, "to the rescue" of national actors – civil society, academics, judges and politicians – in identifying and addressing gaps in national legal frameworks and practices. "In turn, improved national models of constitutional justice can feed into the European definition of judicial independence and impartiality, demonstrating that many diverse models are, in fact, acceptable under European law," she said.
In sum, the paper concludes that this dialogue can contribute to harmonizing the understanding and application of judicial independence across the European Union, promoting a stronger rule of law culture. "By adopting these standards and engaging in meaningful dialogue, EU Member States can enhance the legitimacy and impartiality of constitutional courts, reinforcing public trust in the judiciary and ensuring that their constitutional courts remain pillars of democratic societies," she concluded.


This UOC research supports the UN's Sustainable Development Goal 16, Peace, Justice and Strong Institutions.


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