Kirchberg Salami Lost in Bosphorus

In)dependence is by definition relational: it is the independence from or the dependence on something or somebody. Thus, metaphorically speaking, its assessment cannot be limited to a microscopic study of one slice of a salami, without having regard to the rest of the salami stick... The European Union (EU) is a project of integration through law. President Lenaerts presents this official position well: 'Integration through the rule of law defines what the European Union today stands for' (Lenaerts, 2020, p. 29). As a core value and a fundamental principle the Rule of Law has a special status in EU law, 'advancing a clear idea of constitutionalism taming nationalism by [...] diffusing the model of liberal democracy to countries with an authoritarian past' (Bárd, 2022; Pech, 2009). This idea is codified by the Member States in Article 2 TEU 1 and informs the functioning of the whole system of EU law (Klamert and Kochenov, 2019; von Danwitz, 2018). Despite these clear legal obligations, the Rule of Law and other closely intertwined values are severely and systematically violated in several EU Member States (Sadurski, 2019; Sajó, 2021). The World Justice Project's Rule of Law Index (2020) showed that respect for the Rule of Law declined the most in Hungary and Poland in the whole EU/EFTA/North-America region over the last five years. Member States with such rule of law records could not join the EU, were they to submit their applications today (Kochenov, 2004). Now that illiberal regimes are part of the European club, they endanger the European project from within (Pech and Scheppele, 2017). This is best visible in the field of judicial independence, which is both particularly fragile (Kovács and Scheppele, 2019) and crucially important in the context of the European multi-level legal system (Grabowska-Moroz, 2020). Independent judiciary is of course indispensable as the ultimate arbiter and guarantor of individual rights, but also vital for national judges and the Court of Justice of the European Union (CJEU) to maintain judicial dialogue necessary for the proper application of EU law. Both levels of the judiciary in the EU can only fulfil their multiple functions, if their independence is guaranteed. This can only be done if the continental standards enshrined in Article 6(1) ECHR are fully respected, as Article 19 TEU requires. Here is where the problems start: while some fake Polish 'courts' have already dismissed such basic standards as in breach of the Constitution (Ploszka, 2022), it flows from CJEU's case-law about itself that it is above such basic requirements (Kochenov and Butler, 2022). Worse still, the inability of the CJEU to make up its mind on the vital issue of what it means to be an independent court established by law in the EU legal context led to a proliferation of numerous wanting 'standards' of judicial independence, which are not only internally and mutually contradictory, but also apply differently to the different levels of European judiciary and fall short of meeting the minimum standards outlined by the European Court of Human Rights (ECtHR). This rotten salami, to borrow from AG Bobek's culinary metaphor of this dangerous approach, boasts at least a handful of slices. The very idea of an independent court established by law – which often requires a 'yes' or 'no' answer is that the parties are entitled to know whether the gowned presence in front of them is an independent judge or not – came to mean 'context', as a matter of EU law: whether someone is a lawful judge depends on the court to which the gowned person belongs, the type of action and other variables. 'Context' amounts to lack of clarity concerning this vital aspect of the rule of law, endangering both the uniform application of EU law throughout the territory of the Union and the strict adherence to the rigorous human rights standards. The task of this contribution is to walk through a handful of available standards of judicial independence and discuss the broad implications of this EU-mandated unprincipled rule of law relativism. In what follows we retrace the explosion of the ill-conceived plurality of standards on judicial independence and proceed standard by standard, to demonstrate how the EU enforces mutually-contradictory rules pertaining to the heart of the rule of law. We start with the ECtHR approach in 'established by law' Article 6(1) ECHR case-law, which makes clear that lawfulness of the court is at the heart of the rule of law and is indispensable in a democratic society to even start speaking about judicial independence; we then proceed to the strong standard applied by CJEU in preliminary references context culminating in Banco de Santander SA; and a watered-down Getin Noble Bank version of the same, which does not – in the name of 'judicial (sic) dialogue' 2 – even require a lawful judge and shows resolute lack of decisiveness, on the part of the CJEU in maintaining the EU-wide definition of a 'court or tribunal' in the sense of Article 267 TFEU. We proceed to discuss the groundbreaking yet so far ineffective CJEU case-law attempting to shield courts in backsliding member states from the attacks by the executives, only to counterbalance it by the LM case-law and its progeny, which values the idea of 'mutual trust' above the protection of fundamental rights and adherence to basic rule of law requirements. Last but not least, we discuss the lowest point in the whole story – the presumption of the CJEU entertained in Sharpston cases that even the lowest standards of lawful composition and independence do not apply to it, thus almost putting the supranational Court, through a contra legem interpretation of the primary law, outwith the ambit of Article 19 TEU minimal requirements: unlawful arbitrary interference by the sovereign with the Court's composition in direct violation of EU and ECHR law has been greenlighted in numerous cases related to AG Sharpston's unlawful premature dismissal by both the Court and the General Court (Kochenov and Butler, 2022). The requirement of a tribunal 'established by law' in the sense of Article 6(1) ECHR is at the heart of ECtHR's approach to judicial independence. The establishment of a court by law is a necessary and indispensable requirement of the rule of law, turning the Convention into a 'rule of law instrument'. 3 Significant case-law comes down to several core elements to consider (for details, see Registry of ECtHR, 2022). At issue is not only the legal basis underpinning the establishment of the court as such, but also the rules of staffing it with judges as well as compliance. So, crucially, the failure to comply with the rules of formation of the court is in itself a violation of Article 6 ECHR. 4 Acknowledging the criticism this case-law received, the court painting in quite broad brush strokes (Kosař and Leloup, 2022), it is important that ECtHR connects the rationale behind 'established by law' with the essence of the preservation of democracy: 'to ensure that the judicial organization in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament'. 5 Three key elements of the 'established by law' test flow from Ástráðsson 6: (1) objectively and genuinely identifiable breach of domestic law; (2) the breaches should be fundamental to the procedure; and (3) availability of suitable judicial review based on Convention standards. This standard has been applied in countless cases against Poland, resulting in the finding of significant violations in the cases of outright unlawfully appointed judges of the Constitutional Tribunal 7 (see Grabowska-Moroz, 2021) and the Supreme Court of Poland, including, especially, the Disciplinary Chamber 8 but also other chambers, as long as they include individuals who were appointed by the 'reformed' National Council of the Judiciary (NCJ), which was established, to have the purpose of undermining the independence of the Polish judiciary 9 and is thus an institution that cannot appoint members to any tribunal 'established by law' (Śledzińska-Simon, 2018). 10 For decades before the advent of the Article 19(1) TEU case-law starting with Portuguese Judges (Pech and Kochenov, 2021) that gave CJEU broad jurisdiction over the national judiciaries, the main vehicle for the CJEU to deal with the whole array of issues pertaining to judicial independence lawful composition and established by law requirements was Article 267 TFEU. 11 CJEU's determination of the meaning of 'court or tribunal' in the context of the preliminary reference procedure has been a pillar of EU law since the dawn of integration (Broberg and Fenger, 2021). The core idea was inclusivity and control. The Court invited as many interlocutors as possible to establish vibrant judicial dialogue (Eeckhout, 2015), while at the same time keeping the right to determine what 'court or tribunal' meant. As a result, the criterion of 'independence' was such that even bodies not recognized as courts and inserted within the administrative structures of the Member States were eligible and encouraged to make references (Broberg, 2009, p. 221). The basic standard to assess all the bodies qualifying to use the preliminary rulings, although criticised (for example Tridimas, 2003, p. 30), was set out with clarity since the early days of European integration, demanding that the body is established by law, permanent, enjoying compulsory jurisdiction, inter partes procedure, applying rules of law and is independent. 12 Pech and Platon (2018, p. 1942) foresaw potential conflicts between the permissive paradigm espoused by this case-law and the more demanding (and rightly so) requirements of Article 19 TEU following Portuguese Judges. Banco de Santander SA, 13 upgraded the meaning of 'court or tribunal' by reinforcing the minimal independence requirement: a body where irremovability of members is not strictly guaranteed cannot meet Article 267 TFEU standard (para. 67). Moreover, a court against the final decision of which an extraordinary appeal is possible is equally not a 'court or tribunal' able to send preliminary references (para. 73). The high standard was short-lived. Filipek (2022) is right: 'The CJEU now appears to differentiate between a "court" under Article 267 TFEU and a "court" under 19 TEU (Article 47 Charter).' Indeed, the steady reinforcement of the standards of independence required under Article 267 TFEU came to an abrupt end with Getin Noble Bank, where the Court accepted to answer a request for a preliminary ruling 14 from Mr. Zaradkiewicz, a known usurper 15 found by ECtHR to manifestly fail the 'established by law' test. 16 Moreover, Grzęda, decided by the ECtHR almost immediately after Getin Noble Bank clarified that the core idea behind the so-called Polish 'reform' was the deliberate and systemic undermining of the judicial independence and emphasized that any judge appointed by an organ the sole purpose of which is to undermine judicial independence, is not lawfully appointed. In other words, it was not particularly difficult to see the actual motive behind the case: the actual 'dispute' aside, it was clearly fabricated in an attempt to legitimize the PiS attack against judicial independence by killing two birds with one stone: legitimizing the usurper Zaradkiewicz, who is not a lawful judge in the eyes of the ECHR (and thus not a lawful judge for all the authorities in all the EU Member States, including Poland) and to undermine the credentials of some of his colleagues (Wójcik, 2022). The CJEU accepted the reference ignoring all the above (as well as many an academic warning, for example Pech, 2021b). Instead, the Court established a presumption whereby any national court can be assumed to be established by law, 17 which can only be rebated by a final judicial decision at the national or international level. 18 Unquestionably, ignoring the composition of the referring judge or chamber to focus on the overall court which the judge or a chamber are connected to, is a radical departure from the ECHR standards, where lawful appointment is an inalienable part qualifying as 'established by law'. Speaking of a one-person panel composed of a fake judge, AG Bobek made a distinction between the 'body itself, and not in relation to the individuals who sit in the body which made the request'. 19 The Court found this logic appealing, underlining the importance of 'judicial dialogue' and deploying this term in a direct attack against the core of the rule of law, as explained by ECtHR and analysed above. Ultimately, the CJEU apparently refuses to give the 'court or tribunal of a Member State' an EU law meaning any more, with the presumption of lawful establishment by law, which contradicts final decisions of national courts, 20 its own case-law 21 (Pech and Kochenov, 2021) and Article 6(1) ECHR as interpreted by ECtHR, 22 especially in the case of Advance Pharma, rendered before the Getin Noble Bank decision. 23 In Getin Noble Bank the well-known standards thus evaporated: a known non-court, failing ECtHR standard is found to be qualified to refer a case under Article 267 TFEU, thus starting a short-lived 'judicial (sic!) dialogue' between an impostor and CJEU. Short-lived, since no court in the European legal space would consider the national decision resulting from such dialogue as a lawful exercise of judicial power: unlike the CJEU, with its Baratarian Salami standard, all the other courts on the continent know that an unlawfully appointed judge is not a judge. All in all, the Getin Noble Bank standard emerged as a denial of what Article 6 ECHR and Article 19 TEU requires. The gravity of the situation was further exacerbated, once again, by the fact that all the national courts of other Member States, when dealing with the decisions of the fake judges in Poland, are of course bound by the ECtHR standard. Implications, especially in the context of European Arrest Warrants, as will be seen below, are truly far-reaching. This reality-disconnected unprincipled approach by the CJEU is all the more surprising, when viewed in the context of the remarkable 'anti-backsliding' case-law the Court has developed since 2018. In a glorious défilé of cases analysed by Pech and Kochenov (2021) in detail and primarily concerned with PiS authorities' sustained and systemic attacks against the judiciary in Poland (Pech and Scheppele, 2017), Article 19(1) TEU has now acquired direct effect. 24 The CJEU not only fine-tuned its Portuguese Judges jurisdiction to intervene with the judiciaries at the national level to ensure safeguard of the rule of law, but also distilled a set of key principles, such as non-regression (Leloup et al., 2021), to be taken into account when determining, which courts are established and function in compliance with EU rule of law requirements, the latter being well-known and rather clear by now (Koncewicz, 2020; Pech, 2022). The case law took the form of both direct actions by the Commission – as in Commission v. Poland (The Independence of Supreme Court) (for an analysis see Bárd and Śledzińska-Simon, 2020), or Commission v. Poland (Independence of Ordinary Judges) highlighting the 'cardinal' importance of the principle of irremovability – and via preliminary references route – as in AK (see Leloup, 2020) where the Court instructed the Polish referring court to apply its judicial independence test to the body in dispute. While the Polish Supreme Court has done exactly that, also holding that the Disciplinary Chamber's past and future decisions 'deserve no protection', 25 Supreme Court decisions were ignored, leaving AK without application. CJEU enriched its law with interim relief (Wennerås, 2019), possible sanctions and status quo ante restorations. The Court further clarified in AB and others that all the principles of the rule of law are to be safeguarded when the whole system of judicial appointments is changed, including proper judicial review of the crucial reformed irremovability requirements. 26 The flood of principles drawing on Article 19(1) TEU and 47 CFR notwithstanding, as well as their applicability to the reforms of the judiciaries, the effectiveness of this case-law on the ground both at the national and supranational level leaves much to be desired. The Commission has not learnt its lesson of winning with a meaning, as desire to win a case outshines strategic goals of restoring the rule of law (Scheppele et al., 2020). Worse still, it has been consistently closing its eyes at the CJEU's position, seemingly eager to reward backsliders for their lacking as we have and Kochenov, 2022). the CJEU has all of its judicial independence and of case-law when to assess an attack by the Member States against own independence in the Sharpston as will be one at the national the situation only to case-law not actual rule of law (Kochenov, 2021). The the of EU law itself as a system in its eyes and also in its law (Kochenov, 2017). The has thus been to rather what has been as failure of (Kosař et al., p. see also Pech et al., 2021). European Arrest is an different where the CJEU that as such cannot be and systemic judicial independence The are as in principle as with an unlawful body as a court or individuals as in Getin Noble the is a task of the European Council CJEU on the basis of a it in and (Pech and Kochenov, domestic courts are only to the independence on an The judicial test has been down in and (para. which concerned The same test has been on by the CJEU in the LM (para. case in relation to concerning the independence of the as if it was that and courts would the same The CJEU could have developed a different test for systemic Rule of Law but it the same logic applied to potential human rights in that the issue of judicial independence also down to a human rights of the their right to a As the of the test the court assess whether the of the system in the from in of judicial independence. it does the individual be it the individual of the test where the judge and whether are to that the person will be to a of a violation of their rights, also with regard to a potential lack of independence of the courts, if and and with AG this of the test is if not is more, the CJEU and courts to in a about compliance with established by law and judicial independence requirements, which means that, the fake courts and as who the are invited to assess their own compliance the is even appointed and independent individual judges cannot a system and 2020). The CJEU on the LM test in and no matter how the systemic that judges can their independence in the of and judicial The Court in the fundamental right to an independent tribunal established by law to the of 'mutual interpretation to the would to the that be on the principles of and on this also in and which the ruling of the Polish Constitutional Court in (2021) that Article 19(1) TEU as such is not in with Polish This is not the when CJEU principles in the name of but a one (Kochenov, to a which is not established by law, but is to some of with CJEU Getin Noble Bank, a judge in a system from rule of law as judicial for a to the on LM at the of human rights and the rule of law. The test is to even the most rule of law no matter independent the individual judge, to Poland today is particularly from the point of of fundamental rights, since it is well established by the CJEU and ECtHR that all the courts in the are including the chamber of the Polish Supreme are thus and bound to in Article 6 ECHR rights violations of as CJEU very The CJEU acquired a to test the judicial independence and irremovability standards as applied to its own members as a of The departure of the on 1 in the of the of the Court, as all the CJEU judges appointed by the being members of the Court on the of The same not apply to AG since the not require to the departure of the Member of their from the on the Court past the This situation some Member States, and a decision was taken to AG Sharpston's as by of the European 2020) in direct violation of the of the which not make such a The thus decided to the by a inter and appoint a as an although no and the principle of irremovability in CJEU and ECtHR case-law should have been applied to AG a radical with the situation in Poland, the President of the Court seemingly the Member States in the law and a member has not in breach of the and principles of judicial independence (see Kochenov and Butler, 2022). AG Sharpston a of actions in front of the General Court and the action of the Member States the unlawful appointment was the case that of a lawfully appointed by someone who be to have been appointed are a is not in the of the in of possible gave the Member States and the Council several days to their The Member States and the Court, in a of of an appeal against a interim the President of the Court of Justice to de the case and it as having of The usurper was even before AG Sharpston (2021) learnt about the appeal against and was a to case The President of the Court of Justice was clear that the action of the Member States was a under Article TFEU and was no matter with the of the Court's independence and outright the basic idea that Article 19 TEU the same principles and equally to the national and supranational courts The President to the case on an application against an 2020) was not to the end that, in a the CJEU does not independence from the Member The of the case was such that the Member States were by the Court for in with the Court's composition including the where their was not only but also contra legem and the of of the General Court more what is the of the Court's decisions if its composition as such is by While the Court of Justice not to all the cases and independence to the General Court which was de by the President of the Court of Justice in the Sharpston the answer based on its own standards of judicial independence, as well as the key case-law on the matter from the ECtHR is quite clear and a Court to interference by the sovereign in direct with the and the of the law in a context where such are not is not a established by law' in the sense of more, that an unlawfully appointed individual compliance with Article 6(1) as an impostor cannot and the panel is thus that the CJEU a different standard of judicial independence to itself – the one that contradicts its own case-law related to the PiS attacks on Polish courts and which is in violation of the ECtHR standard. The of judicial independence established by the Court of Justice in the Sharpston cases is thus the most all the standards in the European legal does not only the CJEU's own case-law on irremovability of judges and of but also the ECtHR standard, which is more Speaking the comes down to for a to interference by the with the Court's composition in the of any references to the law or basic The Sharpston cases are thus a no standard. applied to the Polish Rule of Law the Sharpston standard would have PiS attacks on the independence of the Polish courts as fully The most important court in the of a project of integration through law thus emerged as short of meeting the basic European standards of what is a established by law' – an dangerous is particularly is that it came in the context where the Court's unlawful the Member States was also that AG Sharpston only one to For the past one and a decades the ECtHR has that ECHR are when states EU law, that the protection of fundamental rights by the EU was in principle to that of the Convention the ECtHR also made clear that this presumption is even if the was The in human rights protection can only be if a is For a long time the presumption to be well The of judicial independence standards in the EU, which now several standards in direct of the basic requirements of Article 6(1) ECHR could an of a Indeed, when CJEU on preliminary references from the bodies not established by law and where the CJEU itself, for unlawful interference by the Member States into its own the whether the principles by the two are the the EU in not a member of the the basic adherence to the key principles of Article 6(1) ECHR as well as own law is to be of the CJEU – and this is what is from the and judicial independence by CJEU in the of 'judicial 'mutual trust' and other to EU law. Worse still, is a set of in the of and which were the principle of and where member states are to their and almost As the CJEU in EU to the when EU law, Member States be required to that fundamental rights have been by all other Member States, meaning that in they not whether that other Member has in a the fundamental rights

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