Article 47 - Right to an effective remedy and to a fair trial
Article 51 - Field of application
Key facts of the case:
Request for a preliminary ruling from the Qorti Ċivili Prim’Awla - Ġurisdizzjoni Kostituzzjonali. Reference for a preliminary ruling – Article 2 TEU – Values of the European Union – Rule of law – Article 49 TEU – Accession to the European Union – No reduction in the level of protection of the values of the European Union – Effective judicial protection – Article 19 TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Scope – Independence of the members of the judiciary of a Member State – Appointments procedure – Power of the Prime Minister – Involvement of a judicial appointments committee.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1) This request for a preliminary ruling concerns the interpretation of Article 19 TEU and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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9) On 25 April 2019, Repubblika brought an action, described as an actio popularis, before the referring court under Article 116 of the Constitution, seeking a declaration that, by reason of the existing system for the appointment of members of the judiciary, as governed by Articles 96, 96A and 100 of the Constitution, the Republic of Malta is in breach of its obligations under, inter alia, the combined provisions of the second subparagraph of Article 19(1) TEU and of Article 47 of the Charter. Repubblika also requests that any judicial appointment made under the existing system during the proceedings initiated by that actio popularis be declared null and void, and that no other members of the judiciary be appointed except in accordance with the recommendations outlined in Opinion No 940/2018 of the European Commission for Democracy through Law (‘the Venice Commission’) of 17 December 2018 on Constitutional Arrangements and Separation of Powers and the Independence of the Judiciary and Law Enforcement in Malta (CDL-AD (2018)028), together with Article 19(1) TEU and Article 47 of the Charter.
13) The Prime Minister takes the view that the appointments procedure at issue is in conformity with the requirements of the second subparagraph of Article 19(1) TEU and of Article 47 of the Charter, as interpreted by the Court.
14) The referring court considers that, in the present case, the aspect which merits examination by the Court, from the point of view of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, concerns the discretion which Articles 96, 96A and 100 of the Constitution confer on the Prime Minister in the procedure for appointing members of the judiciary. Furthermore, in its view, the question arises as to whether the constitutional amendment carried out in 2016 brought about an improvement to the procedure in question.
15) In those circumstances, the Prim’Awla tal-Qorti Ċivili – Ġurisdizzjoni Kostituzzjonali (First Hall of the Civil Court, sitting as a Constitutional Court, Malta) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
27) In that connection, it should be observed that, as is apparent from the present request for a preliminary ruling, the referring court considers that it must obtain from the Court an interpretation of the second subparagraph of Article 19(1) TEU and of Article 47 of the Charter in view of its doubts, in the context of an actio popularis brought before it under national law, as to whether the national provisions relating to the process for appointing members of the judiciary are in conformity with those provisions of EU law.
32) In the second place, the Polish Government points out that the second subparagraph of Article 19(1) TEU, under which Member States are required to provide effective remedies in the fields covered by EU law, does not alter the substance of the principle of conferral or the extent of the European Union’s powers. On the contrary, it argues, that provision is based on the premiss that, in the absence of EU competence in the field of organisation of judicial systems, it is for the Member States to designate the courts and tribunals that have jurisdiction and to lay down appropriate procedural rules intended to safeguard the rights which individuals derive from the legal order of the European Union. Consequently, no specific rule governing the appointment of members of the judiciary or the organisation of national courts and tribunals can be derived from the second subparagraph of Article 19(1) TEU. It is further submitted that Article 47 of the Charter is inapplicable in the present case. Repubblika has brought an actio popularis, but it does not rely on a subjective right which it derives from EU law. Thus, in the present case, there is no ‘implementation’ of EU law within the meaning of Article 51(1) of the Charter.
33) In that regard, it is sufficient to note that the objections thus raised by the Polish Government relate, in essence, to the actual scope of EU law and, in particular, to that of Article 19 TEU and Article 47 of the Charter, and, therefore, to the interpretation of those provisions. Such arguments, which relate to the substance of the questions referred, cannot therefore, by their very nature, lead to the inadmissibility of those questions (judgment of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 80).
35) By its first question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as meaning that they may be applied in a case in which a national court is seised of an action provided for by national law and seeking a ruling on the compatibility with EU law of national provisions governing the procedure for the appointment of members of the judiciary of the Member State to which that court belongs.
36) As regards, on the one hand, the material scope of the second subparagraph of Article 19(1) TEU, it should be recalled that that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 111 and the case-law cited).
40) As regards, on the other hand, Article 47 of the Charter, it must be recalled that that provision, which constitutes a reaffirmation of the principle of effective judicial protection, enshrines the right to an effective remedy before a tribunal for every person whose rights and freedoms guaranteed by EU law are infringed (judgments of 27 June 2013, Agrokonsulting‑04, C‑93/12, EU:C:2013:432, paragraph 59, and of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 87 and the case-law cited).
41) Thus, the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law (judgments of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 55, and of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 88).
43) Admittedly, Repubblika also disputes the lawfulness of the appointments of 25 April 2019 and of any subsequent appointment which is not in accordance with the recommendations made in Opinion No 940/2018 of the Venice Commission of 17 December 2018 and with Article 19(1) TEU and Article 47 of the Charter. However, Repubblika’s challenge in that regard rests solely on the alleged non-conformity with EU law of those constitutional provisions pursuant to which those appointments were made, without Repubblika’s invoking any infringement, arising from those appointments, of a right conferred on it under a provision of EU law.
44) In those circumstances, in accordance with Article 51(1) of the Charter, Article 47 thereof is not, as such, applicable to the dispute in the main proceedings.
45) However, since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU (judgments of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 54, and of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 143 and the case-law cited).
46)In the light of the foregoing, the answer to the first question is that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it may be applied in a case in which a national court is seised of an action provided for by national law and seeking a ruling on the conformity with EU law of national provisions governing the procedure for the appointment of members of the judiciary of the Member State to which that court belongs. Article 47 of the Charter must be duly taken into consideration for the purposes of interpreting that provision.
51) In that context, the independence of the judges of the Member States is of fundamental importance for the EU legal order in various respects (judgment of 9 July 2020, Land Hessen, C‑272/19, EU:C:2020:535, paragraph 45). It is, thus, essential to the proper working of the judicial-cooperation system embodied by the preliminary-ruling mechanism under Article 267 TFEU, in that that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence (see, inter alia, judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 56 and the case-law cited). Furthermore, the requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial as provided for by Article 47 of the Charter, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (see, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraphs 70 and 71, and of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 116 and the case-law cited).
52) Thus, while Article 47 of the Charter helps to ensure respect for the right to effective judicial protection of any individual relying, in a given case, on a right which he or she derives from EU law, the second subparagraph of Article 19(1) TEU seeks to ensure that the system of legal remedies established by each Member State guarantees effective judicial protection in the fields covered by EU law.
