Judges Assessing the Independence of Judges. Historical Foundations and Practical Procedures in Facing the Threats against the Rule of Law in Europe
Impartial and independent courts are cornerstones of the success of the European project. The recent renaissance of ‘illiberal states’, to use the words of Viktor Orbán in 2014, jeopardizes the application of the rule of law and risk destroying the foundations of the EU legal order.
During 2018, the ECJ has developed two new lines of case law: On the one hand, the ECJ has made itself competent to rule on matters regarding the independence of the judiciary, which used to be part of the pure internal competence of the Member States. On the other hand, the ECJ has empowered national courts to realize a ‘rule of law’ check of other Member States, by assessing the independence and impartiality of the issuing judicial authorities in the context of the arrest warrant – a new task for courts of first instance.
This project aims at analyzing this recent evolution using a European, historical and procedural perspective. It aims to build bridges between parts of the legal science – EU law, legal history and procedural law – which seldom interact. Combining the methods of EU law, with a certain focus on the case-law of the ECJ, the methods of procedural law based on understandings of a ‘fair trial’, and the historical methods, which shed light on how independence and impartiality of judges developed, this will be a fruitful way of getting a better understanding of the strengths and weaknesses in the protection of the independence and impartiality of the judiciary.
Final report
THE PURPOSE AND DEVELOPMENT OF THE PROJECT
The research project aimed at analysing the recent evolution as regards the Rule of Law in the EU using three perspectives: a European, a historical, and a procedural perspective. Thus, it aimed to build bridges between parts of the legal science – EU law, legal history, and procedural law – which seldom interacted. These areas of legal science use partly different methods. Combining the methods of EU law, with a certain focus on the case-law of the CJEU, the methods of procedural law based on understandings of a ‘fair trial’ and focusing on the tasks of judges on a first-instance, national level, and the historical methods, would be a fruitful way of getting a better understanding of the strengths and weaknesses in the protection of the independence and impartiality of the European judiciaries. In particular, the theory of understanding law as consisting of different layers, where the quick changes are seen on the surface and communicating with the legal culture and the deep structures below, would be useful. We would analyse the recent changes in the context of the legal culture and deep structures of judicial independence and impartiality, the Rule of Law and the Rechtsstaat, and discuss how these deeper layers restrain the changes on the surface but also risk being altered by these changes.
The project had to develop in a different way than we had planned, due to the pandemic. Initially, we made rather detailed plans about what conferences we were going to participate in, and which other scholars and project groups we were going to contact. This was in order to discuss our project with other scholars working with similar and related topics, and we needed to further develop our specific approach to the problems. Instead, the initial phase of the project was largely used for accessing and reading relevant literature and keeping track of the development in the case law of the CJEU, the European Court of Human Rights, and various national courts. We also planned the publications and contacted potential researchers, who could add their knowledge and research interests to ours. These collaborative efforts gave results in the later phase of the project.
A BRIEF DESCRIPTION OF THE IMPLEMENTATION
During spring 2021, we arranged two online seminars with invited scholars from other universities. In September 2021, we arranged a two-day online conference focusing largely on the historical parts of the project but also on concepts and principles such as mutual trust and the definition of judicial impartiality and independence. In November 2022, we arranged a two-day conference in Lund focussing to a smaller extent on the historical parts and more on the current procedural and EU law questions.
The articles from the conferences were published in two thematic issues of the Journal of Constitutional History. Results from the project have also been published in the Nordic Journal of European Law. In addition to this, some further articles and chapters are still to be published. To emphasize the conclusion of the project, we arranged in October 2023 a seminar highlighting the results of the project and the articles in the two thematic issues of the Journal of Constitutional History.
THE PROJECT'S MOST SIGNIFICANT RESULTS AND CONCLUSIONS
One significant result is the more detailed knowledge of the historical theoretical development of the Rule of Law. This relates to the constitutional functions of (among others) rulers, judges, and members of the legal profession. Especially as regards the 19th century, the then introduced substantive version of the Rechtsstaat was compared to the formal version. Through an analysis of the 2020 EU Rule of Law Conditionality Regulation, it can be established that a substantive version of the Rule of Law prevails in the EU, including separation of powers and human rights, and this means that the Rechtsstaat or Rule of Law concept can no longer be accused of being vague and thus impossible or difficult to apply. The rise of the Rule by Law instead of Rule of Law in so-called illiberal democracies has forced the concretisation of the Rule of Law, making it a defined, explicit and justiciable principle, and not only a political ideal.
Another significant result is the analysis and overview of what judicial independence and impartiality actually mean and how these principles form the basis for the right to a fair trial. Even though the fundamental parts of these principles are known as ideals since very long, it is during recent decades that the principles have become much more elaborated and detailed through case law. Through research within this project, both the development of this case law and its current status have been clarified. Above all, this is done in the context of how a judge in one country can assess the independence of a judge in another. In this regard, the demand for judicial independence and impartiality functions as a counterbalance to the principle of mutual trust within the EU. On the other hand, these "judge to judge dialogues" are difficult to achieve. There follows procedural problems regarding how judges in one country shall be provided with information about respect for judicial independence in another country and how this information is to be assessed.
A third significant result is that we have shown that more areas in EU law can be affected by Rule of Law deficiencies. The examples that have been discussed are competition law and the regulation of the digital sphere. These areas need to be reassessed from a Rule of Law perspective. In this context, it was discussed whether the EU itself upholds the ambitious substantive Rule of Law standards, and whether the standards of formal Rule of Law would require clearer rules and regulations rather than development through case law.
Finally, one crucial contribution relates to the role of constitutional scholars in relation to the Rule of Law crisis. In the context of the debate on “scholactivism”, one invited scholar argued that researchers ought to contribute to the understanding of the Rule of Law through teaching. As constitutional scholars and experts, we have a responsibility towards both the students and the wider public in this regard. This echoes the words of an invited judge, who was asked about whether there could be a conflict of interest when she protected the Rule of Law against a political party aiming to restrain judicial independence. She maintained that it was her constitutional duty to protect the Rule of Law, which was later confirmed by the European Court of Human Rights and the Consultative Council of European Judges (CCJE).
NEW RESEARCH QUESTIONS
One research interest that can form the basis for further research projects is how judicial independence functions and is protected in contemporary democracies. This has been part of the discussions with judges, who see problems or potential problems also in countries that have not been in the focus of the debate. Also in democracies where the Rule of Law prevails, there can be deficiencies to a smaller or larger extent. In such a project, one could also relate to the changing media and social media landscape and ask how judicial independence is protected against campaigns in different types of media, also in the context of external subversive activities.
Another continued research interest is the historical development more in detail. As has been made clear through this project, the roots of judicial impartiality and independence can be traced to the Middle Ages and Antiquity, and this project has strengthened the understanding that further research is needed in this area. To do this, collaboration is needed between lawyers, historians, and linguists. Such collaboration has partly started through this project and partly developed independently and can be developed further.
HOW RESEARCHERS HAVE DISSEMINATED THEIR RESEARCH AND HOW COLLABORATION HAS OCCURRED
As mentioned above, articles have been published in two thematic issues of the Journal of Constitutional History, and some articles have been published in the Nordic Journal of European Law. In addition to this, further articles and chapters are published or are to be published.
Collaboration has occurred with scholars in legal history, procedural law, and EU law, which resulted in contributions to the conferences and articles discussing the problems from several different angles. In our application, we indicated the importance of inviting judges to cooperate with us, especially to get first-hand information about the development in Poland and Hungary. This was done during the first conference. During the second conference, representatives from organizations of judges were present and presented their action before the EU General Court against the EU Council over the release of funds to Poland in spite of the deficient implementation of the budgetary conditionality regulation.
Collaboration has also taken place in other ways. The principal investigator was elected to the international board of the Journal of Constitutional History after being the guest editor of the two thematic issues. We have also collaborated with researchers working with other similar research projects, and new project applications are under preparation.
Research in the project has also been communicated through podcast and blog participance and panel discussions. This has above all been done in relation to the film “Judges under Pressure”, which shows the situation of Polish judges when their independence was attacked. The principal investigator has been invited on some occasions to comment on the film and how its topic highlights the effects of the Rule of Law crisis.
The research project aimed at analysing the recent evolution as regards the Rule of Law in the EU using three perspectives: a European, a historical, and a procedural perspective. Thus, it aimed to build bridges between parts of the legal science – EU law, legal history, and procedural law – which seldom interacted. These areas of legal science use partly different methods. Combining the methods of EU law, with a certain focus on the case-law of the CJEU, the methods of procedural law based on understandings of a ‘fair trial’ and focusing on the tasks of judges on a first-instance, national level, and the historical methods, would be a fruitful way of getting a better understanding of the strengths and weaknesses in the protection of the independence and impartiality of the European judiciaries. In particular, the theory of understanding law as consisting of different layers, where the quick changes are seen on the surface and communicating with the legal culture and the deep structures below, would be useful. We would analyse the recent changes in the context of the legal culture and deep structures of judicial independence and impartiality, the Rule of Law and the Rechtsstaat, and discuss how these deeper layers restrain the changes on the surface but also risk being altered by these changes.
The project had to develop in a different way than we had planned, due to the pandemic. Initially, we made rather detailed plans about what conferences we were going to participate in, and which other scholars and project groups we were going to contact. This was in order to discuss our project with other scholars working with similar and related topics, and we needed to further develop our specific approach to the problems. Instead, the initial phase of the project was largely used for accessing and reading relevant literature and keeping track of the development in the case law of the CJEU, the European Court of Human Rights, and various national courts. We also planned the publications and contacted potential researchers, who could add their knowledge and research interests to ours. These collaborative efforts gave results in the later phase of the project.
A BRIEF DESCRIPTION OF THE IMPLEMENTATION
During spring 2021, we arranged two online seminars with invited scholars from other universities. In September 2021, we arranged a two-day online conference focusing largely on the historical parts of the project but also on concepts and principles such as mutual trust and the definition of judicial impartiality and independence. In November 2022, we arranged a two-day conference in Lund focussing to a smaller extent on the historical parts and more on the current procedural and EU law questions.
The articles from the conferences were published in two thematic issues of the Journal of Constitutional History. Results from the project have also been published in the Nordic Journal of European Law. In addition to this, some further articles and chapters are still to be published. To emphasize the conclusion of the project, we arranged in October 2023 a seminar highlighting the results of the project and the articles in the two thematic issues of the Journal of Constitutional History.
THE PROJECT'S MOST SIGNIFICANT RESULTS AND CONCLUSIONS
One significant result is the more detailed knowledge of the historical theoretical development of the Rule of Law. This relates to the constitutional functions of (among others) rulers, judges, and members of the legal profession. Especially as regards the 19th century, the then introduced substantive version of the Rechtsstaat was compared to the formal version. Through an analysis of the 2020 EU Rule of Law Conditionality Regulation, it can be established that a substantive version of the Rule of Law prevails in the EU, including separation of powers and human rights, and this means that the Rechtsstaat or Rule of Law concept can no longer be accused of being vague and thus impossible or difficult to apply. The rise of the Rule by Law instead of Rule of Law in so-called illiberal democracies has forced the concretisation of the Rule of Law, making it a defined, explicit and justiciable principle, and not only a political ideal.
Another significant result is the analysis and overview of what judicial independence and impartiality actually mean and how these principles form the basis for the right to a fair trial. Even though the fundamental parts of these principles are known as ideals since very long, it is during recent decades that the principles have become much more elaborated and detailed through case law. Through research within this project, both the development of this case law and its current status have been clarified. Above all, this is done in the context of how a judge in one country can assess the independence of a judge in another. In this regard, the demand for judicial independence and impartiality functions as a counterbalance to the principle of mutual trust within the EU. On the other hand, these "judge to judge dialogues" are difficult to achieve. There follows procedural problems regarding how judges in one country shall be provided with information about respect for judicial independence in another country and how this information is to be assessed.
A third significant result is that we have shown that more areas in EU law can be affected by Rule of Law deficiencies. The examples that have been discussed are competition law and the regulation of the digital sphere. These areas need to be reassessed from a Rule of Law perspective. In this context, it was discussed whether the EU itself upholds the ambitious substantive Rule of Law standards, and whether the standards of formal Rule of Law would require clearer rules and regulations rather than development through case law.
Finally, one crucial contribution relates to the role of constitutional scholars in relation to the Rule of Law crisis. In the context of the debate on “scholactivism”, one invited scholar argued that researchers ought to contribute to the understanding of the Rule of Law through teaching. As constitutional scholars and experts, we have a responsibility towards both the students and the wider public in this regard. This echoes the words of an invited judge, who was asked about whether there could be a conflict of interest when she protected the Rule of Law against a political party aiming to restrain judicial independence. She maintained that it was her constitutional duty to protect the Rule of Law, which was later confirmed by the European Court of Human Rights and the Consultative Council of European Judges (CCJE).
NEW RESEARCH QUESTIONS
One research interest that can form the basis for further research projects is how judicial independence functions and is protected in contemporary democracies. This has been part of the discussions with judges, who see problems or potential problems also in countries that have not been in the focus of the debate. Also in democracies where the Rule of Law prevails, there can be deficiencies to a smaller or larger extent. In such a project, one could also relate to the changing media and social media landscape and ask how judicial independence is protected against campaigns in different types of media, also in the context of external subversive activities.
Another continued research interest is the historical development more in detail. As has been made clear through this project, the roots of judicial impartiality and independence can be traced to the Middle Ages and Antiquity, and this project has strengthened the understanding that further research is needed in this area. To do this, collaboration is needed between lawyers, historians, and linguists. Such collaboration has partly started through this project and partly developed independently and can be developed further.
HOW RESEARCHERS HAVE DISSEMINATED THEIR RESEARCH AND HOW COLLABORATION HAS OCCURRED
As mentioned above, articles have been published in two thematic issues of the Journal of Constitutional History, and some articles have been published in the Nordic Journal of European Law. In addition to this, further articles and chapters are published or are to be published.
Collaboration has occurred with scholars in legal history, procedural law, and EU law, which resulted in contributions to the conferences and articles discussing the problems from several different angles. In our application, we indicated the importance of inviting judges to cooperate with us, especially to get first-hand information about the development in Poland and Hungary. This was done during the first conference. During the second conference, representatives from organizations of judges were present and presented their action before the EU General Court against the EU Council over the release of funds to Poland in spite of the deficient implementation of the budgetary conditionality regulation.
Collaboration has also taken place in other ways. The principal investigator was elected to the international board of the Journal of Constitutional History after being the guest editor of the two thematic issues. We have also collaborated with researchers working with other similar research projects, and new project applications are under preparation.
Research in the project has also been communicated through podcast and blog participance and panel discussions. This has above all been done in relation to the film “Judges under Pressure”, which shows the situation of Polish judges when their independence was attacked. The principal investigator has been invited on some occasions to comment on the film and how its topic highlights the effects of the Rule of Law crisis.