The essence of the case: The referring court wants, inter alia, to determine whether the courts in the Free State of Thuringia are independent and impartial courts within the meaning of EU law
Waiting for the date of the hearing.
The circumstances emphasized by the Landgericht Erfurt in support of the second question referred:
„The national constitutional situation in Germany and in Thuringia does not meet those standards (i.e. requirements under the case law of the Court of Justice on institutional independence). It only recognises a functional judicial independence in the key area
of judicial activity, which is a personal independence. However, that is not sufficient to protect judges from all forms of external influence. The additional institutional independence of the courts required for that is by no means guaranteed. However, the independence of individual judges is guaranteed by the independence of the judiciary as a whole. The organisation of the judiciary and the case-law of Thuringia do not meet the standards of judicial independence demanded under European constitutional law and by the European Court of Justice (see judgments of 19 November 2019, C-585/18, paragraph 121 et seq.; of 24 June 2019, C-619/18; and of 25 July 2018, C-216/18). More precisely:
- aa) In Thuringia, as in every other federal state in Germany, the executive is responsible for the organisation and administration of the courts and manages their staff and resources. The Ministries of Justice decide on the permanent posts and the number of judges in a court and on the resources of the courts. In addition, judges are appointed and promoted by the Ministers for Justice. The underlying assessment of judges is the responsibility of the ministries and presiding judges who, aside from any judicial activity of their own, must be regarded as part of the executive. The Ministers for Justice and the presiding judges who rank below them administratively and are bound by their instructions act in practice as gatekeepers. In addition, the presiding judges exercise administrative supervision over all judges.
- bb) The formal and informal blurring of numerous functions and staff exchanges between the judiciary and the executive are also typical of Germany and Thuringia. For example, judges may be entrusted with acts of administration of the judiciary. The traditional practice of seconding judges to regional or federal ministries is one particular cause for concern. Seconded judges are often integrated into the ministerial hierarchy for years. It is also not unusual for them to switch back and forth between ministries and courts and even between the status of judge and the status of civil servant. The judge sitting alone who referred the question has personally been seconded three times (twice [Or.8] to the Thuringia Ministry of Justice and once to the Thuringia State Chancellery). This exchange of staff between the executive and the judiciary infringes both EU law and the Bangalore Principles of Judicial Conduct applied worldwide (see Commentary on the Bangalore Principles of Judicial Conduct, www.unodc.org, p.36: ‘The movement back and forth between high-level executive and legislative positions and the judiciary promotes the very kind of blurring of functions that the concept of separation of powers intends to avoid.’)
- cc) Most importantly, these informal practices sometimes appear to be arbitrary. While the courts guarantee the absence of arbitrariness outwardly, informal practices may expose judges to the threat of arbitrariness and administrative decisionism. Inasmuch as ‘expression-of-interest’ procedures have been initiated recently, including in Thuringia, as awareness of the problem increases, for example on secondments and trial periods in higher courts or on the management of working groups for trainee lawyers, there is still no justiciability (enforceability).
- dd) All this gives the executive the facility to exert undue influence on the judiciary, including indirect, subtle and psychological influence. There is a real risk of ‘reward’ or ‘penalty’ for certain decision-making behaviours (see Bundesverfassungsgericht (Federal Constitutional Court, Germany) order of 22 March 2018, 2BvR 780/16, …, paragraphs 57 and 59).
- ee) The close interlock in Germany between the judiciary and the executive and the hierarchical structure and institutional dependence of the judiciary are rooted in the authoritarian state of 19th century Germany and in the Nazi principle of the ‘führer’. In terms of administrative supervision, the entire German judiciary is based on the president model (which under National Socialism was perverted and abused by applying the principle of the ‘führer’ to the courts …).The executive’s extensive influence over judicial staffing decisions is not unique to the German legal culture. A judicial structure dating back to a pre-democratic era does not adequately obstruct political instrumentalisation. There is no constitutional resilience …. [Or. 9]
- ff) The blurring of powers in Thuringia, which is both informal and, beyond that, institutional, is fundamentally rooted in the following rules: Article 89 (2) of the Thüringer Verfassung (Thuringia Constitution) states that the Minister for Justice decides on the provisional appointment of judges and, with the consent of the Judge Selection Committee, on their lifelong appointment. Article89(4) of the Thuringia Constitution authorises laws to be passed setting out the details of that arrangement. Thus, Paragraph3(1) of the Thüringer Richter-und Staatsanwältegesetz (Thuringia Law on Judges and Public Prosecutors, ‘the ThürRiStAG’) stipulates that the Minister for Justice is to appoint and dismiss judges and public prosecutors. According to Paragraph3(2) of the ThürRiStAG, the Ministry of Justice is the highest administrative authority within the meaning of that law for judges and public prosecutors and, according to Paragraph3(3) of the ThürRiStAG, the Minster for Justice is also a member of the Judge Selection Committee. It follows from Paragraphs3and 63 of the ThürRiStAG that the Minister for Justice decides on promotions to higher office and, as the highest administrative authority, has the final and ultimately binding word both in the procedure and on the outcome. According to the third sentence of Paragraph63(3) of the ThürRiStAG, in the case of dissent between the Judge Selection Committee and the Minister for Justice on a promotion to higher office, the Minister can propose another candidate or re-advertise the post (‘right of veto’). Furthermore, the regional rules on the organisation of the judiciary include a number of regulations illustrating the blurring of powers and the authority of the executive. According to Paragraph 3 of the Gesetz zur Ausführung des Gerichtsverfassungsgesetzes (Law Implementing the Law on the Organisation of the Judiciary, ‘the AGGVG’), the Minister for Justice establishes the number of divisions and chambers in the courts. Substantively similar rules on administrative jurisdiction can be found, for example, in Paragraphs 1(4) and 2 of the Gesetz zur Ausführung der Verwaltungsgerichtsordnung (Law Implementing the Code of Administrative Court Procedure, ‘the AGVwGO’). Administrative supervision applies in addition. According to Paragraph10(1) of the AGGVG, administrative supervision is exercised by:
1.the Minister for Justice, over the ordinary courts and prosecution services in the federal state;
2.the president of the higher regional court and the president of the regional court, over the courts in their district. The presidents too are subject to administrative supervision.
- gg) Neither the rights of participation and representation of the judiciary in Thuringia nor the legal remedies available are a satisfactory corrective. First, [Or. 10] Paragraph 40 of the ThürRiStAG grants judges’ representatives full rights of representation to a limited extent only and their rights of representation fall very short of the rights accorded to regional civil servants. Second, there are serious obstacles to the arcane legal remedies available in the event of interference in judicial independence. Convening the judicial disciplinary tribunal is a stressful task and often exacts a high professional and social cost. It must not be forgotten that, as a rule, the legal remedy is directed against measures taken by superiors, that is the presidents of the courts, who are responsible for staff assessments and thus ‘control’ promotions and placements. Furthermore, an action in the judicial disciplinary tribunal in Thuringia is preceded by lengthy opposition proceedings conducted by the executive.
- d) These shortcomings may give the public cause to doubt that the German courts are adequately protected from outside intervention or pressure, especially from the executive. There may also be cause to doubt that the courts are immune to direct or indirect outside influence. Lastly, there is also the risk of the application of the law being interest-driven, that is of a lack of neutrality with regard to the conflicting interests of the parties (see, for example, with regard to those criteria, the judgment of 19 November 2019, C-585/18). […]
- c) There is, moreover, a close and inextricable connection between the question referred on the emissions scandal and the status of the referring court. The State is heavily invested in the defendant. Given the economic and labour market interests tied up in the German automotive industry, especially in the current pandemic, and the sheer volume of proceedings, the courts are under immense pressure. It has also been noticed that civil courts close to the defendant, unlike the [Or.12] large majority of German instance courts (and now the Federal Court of Justice), have dismissed actions against the defendant.
- d) Furthermore, a letter from the president of the Oberlandesgericht Dresden (Higher Regional Court, Dresden, Germany) of 9 April 2020 is extremely important. That letter, which was addressed to all the presidents of the higher regional courts in Germany, was circulated and distributed among the judiciary in Thuringia and even reached the referring judge sitting alone. The suggestion that they consider whether further processing of and rulings on emission proceedings can be ‘deferred’ is capable of exerting direct influence. That applies a fortiori to the reticence clearly expressed in the letter in respect of the ‘chance of full refund of the purchase price without any deduction for use, even where the vehicle has been used for years’. That is addressed by the first question referred.
- e) In addition, there is an increasingly critical attitude towards preliminary references in Germany, at least inasmuch as they are made by instance courts, to the point at which calls have been made to curb the right of reference of the instance courts. For example, Ferdinand Kirchhof, the outgoing vice-president of the Federal Constitutional Court expressed the opinion that the right of reference of the lower courts favoured circumvention of the higher courts and tended to divide case-law. All this may cause the instance courts in Germany to refrain from referring preliminary questions (see, with regard to the unrestricted and unrestrictable right of reference, judgment of 26 March 2020, C-558/18, paragraph 55 et seq.).
The doubts raised by the Landgericht Erfurt show that, in the opinion of that court, Turin courts do not meet the criteria of independence, the importance of which is emphasized in the so-called Polish cases. Therefore, it will soon become clear how the Court of Justice implements in practice the principle of equal treatment of all Member States and the principle of a uniform interpretation of EU law.
It cannot be ruled out that the concept expressed by the European Commission for Democracy through Law (Venice Commission) in the Report on the appointment of judges (CDL-AD (2007) 028) adopted at the 70th Plenary Session will be applied. The aforementioned concept states that:
“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.”