European Union Law

It is no longer necessary to give a ruling on...

The questions referred by the referring court in Case C‑585/18, in the light of what has been just pointed out. Nor the first question referred in Cases C‑624/18 and C‑625/18. In this case the reason being that the Disciplinary Court in the end was formed. Nonetheless, the referring court wishes to be instructed not as to the substance of the cases but as regards a procedural problem, since it relates to the jurisdiction of that court to hear and rule on those cases. Nonetheless, the referring court wishes to be instructed not as to the substance of the cases but as regards a procedural problem, since it relates to the jurisdiction of that court to hear and rule on those cases.

BERING IN MIND THAT Although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU.

law.In particular, the Member States have to ensure the compliance with the right to effective judicial protection of those rights as enshrined in Article 47 of the Charter and with the right to a fair trial.

PROBLEM I

The Disciplinary Chamber where the cases should have been heard initially not yet formed. Even though the posts of the judge were eventually filled, the referring court suggested that serious doubts arise as to whether that chamber and its members will provide sufficient guarantees of independence and impartiality.

1. First, the recent elections of the new members of the KRS were not transparent and there are serious doubts as to whether the requirements laid down in the applicable legislation were actually complied with during those elections.
2. Second, an examination of the activities of the KRS is said to demonstrate a complete lack of the adoption of any stance by that body for the purposes of defending the independence of the Supreme Court in the crisis caused by recent

legislative reforms affecting that court.

Furthermore, the KRS’s practice — when called on to issue an opinion on the possibility for a judge of the Supreme Court to continue to serve beyond the retirement age now set at 65 — consists, as demonstrated, inter alia, in the opinion of the KRS challenged before the referring court in Case C‑585/18, in issuing unreasoned unfavorable opinions or merely reproducing the wording of Article 37(1b) of the New Law on the Supreme Court.

3) 12/16 candidates chosen by the KRS, were persons who were, until that time, subject to the executive.

4) The procedure during which the KRS is called on to select candidates to the posts of judge of the Disciplinary Chamber, was amended, so that the KRS may act unperturbed without the possibility of any meaningful review in that regard.

5) Above all the KRS, or members thereof, have publicly criticised members of the Supreme Court for having referred questions to the Court of Justice for a preliminary

and other EU treaties; or● the validity and interpretation of acts of the EU institutions, such as regulations, directives, anddecisions.The second stage is the referral to the ECJ.Once a national court has made a referral, the ECJ has the power to provide a preliminary ruling on thequestions referred to it. This ruling is binding on the national court and any other national courts dealingwith similar issues.The third stage is the implementation of the ruling.After receiving the preliminary ruling, the national court must apply it to the case at hand and make a finaldecision based on the interpretation provided by the ECJ. This ensures a consistent application of EU lawacross all Member States and helps to avoid divergent interpretations and conflicting decisions by nationalcourts.The preliminary ruling mechanism plays a crucial role in the development and enforcement of EU law. Itensures the uniform interpretation and application of EU law, promotes legal certainty, and strengthens thecooperation between national courts and the ECJ. It also allows for the protection of individual rights andthe effective functioning of the EU legal system.

The amending Treaties and the Treaties of Accession.

The validity of acts taken by EU institutions or bodies, and the interpretation of any law arising from those acts.

There are some limitations on the scope of Article 267:

• The ECJ will not rule on hypothetical matters.
• The ECJ limits itself to ruling on matters of EU law.
• Furthermore, the courts which may petition the ECJ are limited to those with state recognition – that is, courts and tribunals are recognised.

The second stage involves the preliminary decision itself.

The ECJ will examine the question and issue its ruling. 183

The third stage of the process is the implementation of the clarified law.

Whilst the ECJ might clarify the law, they do not implement it. Instead, this is left to the courts of the petitioning Member State.

THE ROLE OF THE NATIONAL JUDGES

As we just saw, the role of the national judges of the courts is fundamental in the first and third stage of the preliminary ruling insofar as the proper and

effective operation of the preliminary ruling procedure depends primarily on the national courts, since it is up to them:

1. to decide whether to refer a question to the Court,
2. to determine the stage at which the question should be referred for a preliminary ruling and the material wording of the questions,
3. to make the final decision in the case after receiving the Court's answer, or to decide whether to refer the matter back to the Union court before resolving the dispute.

THE PREMISE

WHEN A COURT IS DEFINED AS INDEPENDENT:

• when it is autonomous without taking orders or instruction from any source whatsoever, thus being protected against external pressure or influence.
• when it is impartial objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.
• but also when the principle of the separation of powers is respected the independence of the judiciary must be ensured in relation to the

legislature and the executive.

INDEPENDENT WITHIN THE MEANING OF THE ARTICLE 6(1) OF THE ECHR

Nonetheless neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor establish permissible limits of such interaction.

Regard must be had Nonetheless neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor establish permissible limits of such interaction.

To test impartiality instead:

• subjective test examine whether the judge gave any indication of personal prejudice or bias in a given case;
• objective test ascertaining whether the tribunal itself and its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its

imparzialità. RISPOSTA Nel presente caso, la questione che il tribunale di rinvio deve risolvere è se la Camera disciplinare soddisfi i requisiti di indipendenza e imparzialità che devono essere rispettati da un tribunale ai sensi dell'articolo 47 della Carta. Tuttavia, bisogna tenere presente che l'articolo 267 del TFUE non conferisce al tribunale il potere di applicare le norme del diritto dell'UE a un caso specifico, ma solo di pronunciarsi sull'interpretazione dei Trattati e degli atti adottati dalle istituzioni dell'UE, che possono essere utili per valutare gli effetti di una o dell'altra disposizione. È quindi compito del tribunale di rinvio valutare se, considerati nel loro insieme, tutti i fattori relativi alla creazione della Camera disciplinare e, in particolare: - la giurisdizione ad essa conferita, - la sua composizione - e le circostanze e le condizioni che circondano la nomina dei giudici chiamati a sedere in quel tribunale siano in grado di suscitare dubbi legittimi, nella mente dei soggetti di diritto, in merito all'imparzialità.

imperviousnessof the Disciplinary Chamber to external factors, and, in particular, to the direct or indirect influence of thelegislature and the executive, and as to its neutrality and, thus, whether they may lead to that chambernot being seen to be independent or impartial.

THE PROBLEM IIIF the referring court were to conclude that such a court does not meet the requirements arising fromArticle 47 of the Charter and from Article 9(1) of Directive 2000/78 on account of its not being anindependent and impartial tribunal…the referring court also wishes to know whether the principle of the primacy of EU law requires it todisapply those provisions of national law which confer jurisdiction to rule on the cases in the mainproceedings on that court.

REASONING OF THE COURT

• The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States.
• In order to ensure the full effectiveness of EU law, the principle that national law law must

The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States.

In order to ensure the full effectiveness of EU law, the principle that national law must be interpreted in conformity with EU law has to be followed.

In that regard, any national court, hearing a case within its jurisdiction, has, as a body of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it.

Consequently, the national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Article 47 of the EU Charter of Fundamental Rights.

the Charter of Fundamental Rights of the European Union and from Article 9(1) of Directive 2000/78), to disapply any provision of national law that contradicts these articles. A provision of national law that grants exclusive jurisdiction to a court that does not meet the requirements of independence and impartiality as stated in Article 47 of the Charter would deprive an individual of an effective remedy as guaranteed by Article 47 and Article 9(1) of Directive 2000/78. Such a provision would also fail to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter. Therefore, in cases like the present one, it is necessary to disapply any provision of national law that contradicts the aforementioned articles in order to ensure effective judicial protection.