The essence of the case: the second question referred for a preliminary ruling tries to determine whether the Verwaltungsgericht Wiesbaden [administrative court in Wiesbaden] may be considered a court within the meaning of EU law
On July 9, 2020, the Court of Justice issued a judgment in the case
Official summary of the reasons for the request for a preliminary ruling: “The referring court has doubts in relation to the first aspect because the courts are hierarchically subject to the Ministry of Justice and are therefore subordinated to it, even if the courts do not take orders or instructions from any source. […] the external and internal organisation is prescribed by the Ministry via the procedures for the courts and public prosecutor’s offices and by other legal acts. The Ministry determines, via a central service provider, the Hessische Zentrale für Datenverarbeitung (Hesse Central Office for Data Processing, HZD), the communication methods (telephone, fax and internet, amongst others) and the IT set-up via the so-called ‘HessenPC’ (personal computer of the federal state of Hesse), which is designed for administration. The referring court takes the view that this has the result that the administration can ultimately access all the data of the courts, even if it probably does not do so in practice. The courts therefore do not enjoy the independence that would enable them to perform their duties free from external influence. The possibility remains that the courts, which, with the exception of the ‘independent judges’, are part of the general public administration and therefore under the control of the government of their respective Land, are not able to act objectively when they interpret and apply national and European provisions. This is demonstrated simply by the fact that, contrary to Regulation No 2016/679, the courts do not have independent control over data protection, as the bulk of data processing is prescribed by the Ministry, namely the information technology office of the Hesse judicial authorities (an IT office that is an intermediate authority within the Ministry of Justice) or by the HZD, without a court having any effective influence on this (cf. recital 20 of Regulation No 2016/679).
Judgment of the Court of Justice of 9 July 2020:
“50. As regards, in the second place, the role of the Ministry of Justice of Land Hessen with respect to the management of work-related travel of judges or the organisation of the court or tribunals, the determination of staff numbers, the management of means of communication and IT facilities, as well as the management of personal data, suffice it to state that the request for a preliminary ruling contains no information from which it can be ascertained to what extent those factors are liable to call into question, in the main proceedings, the independence of the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden).”
Conclusion: broad powers of the executive over the organization of the judiciary do not undermine the independence of the judiciary. Since it is necessary to understand to what extent these powers may undermine the independence of the court in the main proceedings, the Court of Justice recognizes that what matters is how the executive uses its executive powers.
Official summary of the reasons for the request for a preliminary ruling: “Regarding independence, however, the manner of appointment of the members of a court must also be taken into account […]. The question therefore arises as to whether, at least in proceedings to which the Hesse Ministry of Justice is party, judges that are appointed and promoted by the Minister of Justice, who also makes decisions on the processing of their personal data in the context of the publication of their contact details (even if only within the Land of Hesse), have complete independence and can rule without being subject to any influence, and even if only because they have submitted an application for a post involving a promotion, on which, once again, the Ministry of Justice ultimately decides. The referring court takes the view that what was decided in relation to Directive 95/46/EC regarding data protection supervisory authorities has to apply here too – in fact, the standards established for public authorities in the decision must apply a fortiori to jurisdiction and therefore to the courts (see, in that regard, Opinion of Advocate General Bobek, C-530/16, EU:C:2018:29, points 32 and 33). The courts are functionally independent only to the extent that their judges are independent and subject only to the law (Article 126 of the HV).
Judgment of the Court of Justice of 9 July 2020:
- […]. That committee (judges’ selection committee), provided for in Article 127 of the Constitution of Land Hessen, is composed of seven members designated by the parliament of that Land, five members of the judiciary and, by annual rotation, the President of one of the two Bar Associations of Land Hessen. The members designated by the parliament, in proportion to the composition of that institution, serve to ensure the democratic legitimacy of that committee.
- The Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden) appears, however, also to have doubts as to the compatibility of the composition of the Judicial Appointments Committee with the principle of independence, given that the majority of its members are chosen by the legislature.
- However, that fact cannot, in itself, give rise to any doubt as to the independence of the referring court. The assessment of the independence of a national court or tribunal must, including from the perspective of the conditions governing the appointment of its members, be made in the light of all the relevant factors.
- It must be recalled, in that regard, that, where a national court or tribunal has submitted to the Court a number of factors which, in its view, call into question the independence of a committee involved in the appointment of judges, the Court has held that, although one or other of the factors indicated by that court or tribunal may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, those factors, when taken together, in addition to the circumstances in which those choices were made, may, by contrast, 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 [judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 142].
- In this instance, it cannot be concluded that a committee such as that at issue in the main proceedings is not independent solely because of the factor mentioned in paragraph 55 of the present judgment.
Judgment of the Court of Justice of 19 November 2019, C-585/18, C-624/18 and C-625/18, A. K. and Others – argumentation of the Polish Supreme Court
- In that regard, the referring court, which observes that those judges are appointed by the President of the Republic on a proposal of the KRS, notes, first of all, that, under the reform enacted by the Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws, the 15 members of the KRS who, of its 25 members, must be elected among judges are now not elected by general assembly of judges of all levels as before, but by the Lower Chamber of the Polish Parliament. According to the referring court, that situation disregards the principle of the separation of powers as the basis for a democratic State governed by the rule of law and is not consistent with the prevailing international and European standards in that regard, as is clear, in particular, from Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on Judges: independence, efficiency and responsibilities of 17 November 2010, from Opinion No 904/2017 (CDL-AD(2017)031) of the European Commission for Democracy through Law (Venice Commission) of 11 December 2017 and from Opinion No 10(2007) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society of 23 November 2007.
The comparison of the arguments of the Verwaltungsgericht Wiesbaden, largely expressed in relation to the independence of Polish courts, with the content of the judgment of the Court of Justice of 9 July 2020 leads to the conclusion that the case is referring to the concept expressed by the European Commission for Democracy by Law (Venice Commission) presented in the Report on the appointment of judges (CDL-AD (2007) 028) adopted at the 70th Plenary Session, according to which:
“5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.
- New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges.
This assumption raises serious doubts from the point of view of the principle of equal treatment of Member States and the principle of uniform interpretation of EU law.