This week we’re looking at the European Court of Justice. How does it operate? How political is it? And is public opinion ever taken into account?
One of the chief stumbling blocks in negotiations over the Northern Ireland Protocol has concerned the role of the EU’s top court, the European Court of Justice, and parts of the Conservative Party are ever agitated by the quite separate European Court of Human Rights and its role in adjudicating on human rights disputes. So we have made two episodes looking at these institutions, starting with this one.
We’re focusing this week on the European Court of Justice. Joining us is Dr Michal Ovádek, Lecturer in European Institutions, Politics and Policy here in the UCL Department of Political Science.
Michal has recently published an article on a 2018 European Court of Justice ruling concerning the pay of Portuguese judges. That might seem a little obscure. But it turns out that the case had important real-world impacts, and also tells us a lot about how the court operates.
Mentioned in this episode:
SUMMARY KEYWORDS
court, eu, governments, judicial independence, case, judges, principle, poland, law, decision, suppose, european union, institution, favour, justice, hungary, portuguese, article, european court, measures
SPEAKERS
Michal Ovádek, Alan Renwick
Alan Renwick 00:05
Hello. This is UCL Uncovering Politics. And this week we're looking at the European Court of Justice. How does it operate? How political is it? And what should we think?
Hello, my name is Alan Renwick. And welcome to UCL Uncovering Politics – the podcast of the School of Public Policy and Department of Political Science at University College London.
International courts have been much in the news of late: one of the chief stumbling blocks in negotiations over the Northern Ireland Protocol has concerned the role of the EU's top court, the European Court of Justice; and parts of the Conservative Party are ever agitated by the quite separate European Court of Human Rights and its role in adjudicating on human rights disputes.
So we thought it would be good to have a couple of episodes looking at these institutions. We're focusing this week on the European Court of Justice, and we'll turn to the European Court of Human Rights next week.
And joining us to discuss the ECJ is Dr Michal Ovádek, Lecturer in European Institutions, Politics and Policy here in the UCL Department of Political Science.
Michal has recently published an article on a 2018 ECJ ruling concerning the pay of Portuguese judges. That might seem a little obscure. But it turns out that the case had important real-world impacts and also tells us a lot about how the Court operates.
So Michal, welcome to UCL Uncovering Politics, and can we maybe start by saying a little about this case that you focus on – the case of the Portuguese judges. What was it and what issues were at stake in it?
Michal Ovádek 01:58
Hi, Alan. Thanks for having me on the podcast. So this particular case, as you said, does sound quite obscure, I suppose, to the regular listener of the podcast. But I promise there's broader significance that I'm sure we're going to get into.
The case itself originated in Portugal, and it concerned austerity measures which were imposed during the eurozone crisis by the Portuguese government in conjunction with the European Commission and the International Monetary Fund.
And it concerned public sector wages and public sector workers being not only you know, the regular bureaucrats, civil servants, but also judges. And judges took issue with this: they took issue with it on the ground that they are in a separate, different position from other civil servants, seeing that they are a separate sort of branch of power, and they need some special protection, let's say, on the grounds of judicial independence.
Alan Renwick 02:28
So the claim here was that the reduction of the pay of judges in Portugal violated judicial independence. And furthermore, there was a claim that the European Court of Justice might have some jurisdiction in hearing cases to do with the independence of the courts in EU member states. Yeah?
Michal Ovádek 03:21
Yeah, I'll try to break it apart a little bit.
So the case did originate just purely in Portugal – at the start, there was no ECJ element to it. But after the Portuguese Judges’ Association failed to sort of obtain a remedy at the domestic level, trying it with the Constitutional Court, they realised that there was essentially nowhere else to turn but to the European Union. And so they asked one of the Portuguese courts to refer a question – a so-called 'preliminary question' – to Luxembourg, to the European Court of Justice. And that's how the European Court of Justice got involved in this dispute.
But the European Court of Justice was seeking, sort of, very different objectives. It was thinking, let's say, more broadly about this case than the Portuguese judges. The Portuguese judges were really concerned with their wages and with the protection of the principle of judicial independence, whereas the European Court of Justice was really thinking just about the latter – just about the principle and what the implication of the protection of that principle at the European level would be also for other countries, so not just in Portugal.
Alan Renwick 04:28
So is there a clear requirement for judicial independence in the treaties of the European Union?
Michal Ovádek 04:35
Well, this was sort of the crux of the matter. So this principle is protected as part of the so-called Charter of Fundamental Rights. However, that charter only applies when EU law applies. So let's say there's some kind of a substantive EU law dimension to a conflict or to a dispute. That's when this charter also applies, and that's when the principle could be invoked.
However, national courts, they operate on a daily basis and there's millions of cases in front of them. Most of them do not concern EU law, and especially those particularly sensitive political cases, when perhaps a government might be trying to curb a court or might be trying to pack a court. In those cases, it's rare that there will be an EU law dimension to it.
And so the question then is, you know, can EU law protect judicial independence more broadly than in just those individual, specific EU law cases? And so that's essentially the significance of this decision: that the Court of Justice, sort of in a very revolutionary way, extended the principle of judicial independence, as protected under EU law, to national courts in general without there needing to be a specific EU law dimensioned, let's say. So it's essentially imposed a new obligation which was not really explicitly written in the treaties.
Alan Renwick 05:51
And if I understand correctly, it was Article 19 Part One of the Lisbon Treaty, the Treaty on European Union (which I have written down because I found this fascinating). The relevant bit, I think, says 'Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law'. And that's all it says! So the concept of judicial independence isn't directly there. But the idea, presumably, is that in order for them to be able to provide remedies sufficient to ensure effective legal protection, there needs to be judicial independence. And this is not just when the European Union law is being applied, but it's in fields covered by European Union laws. It's a bit broader than what you were saying in relation to the Charter of Fundamental Rights?
Michal Ovádek 06:40
Yes, precisely. So indeed, if you look at this provision, which is the key provision, there is no explicit mention of judicial independence – that was something that was read into this article by the Court. And that's, I suppose, where you could say the controversy comes in, right: it's about, again, the extent of the jurisdiction, the extent of the powers of the Court to be able to do something like that. But it has happened, and it was also sort of democratically legitimated afterwards, which is sort of another twist that comes from this case.
Alan Renwick 07:17
And what do you mean by that? What do you mean when you say it was democratically legitimated?
Michal Ovádek 07:21
So after the Court decided this case, this new principle that okay, all the national courts need to now respect – or let's say all national governments have to respect – judicial independence as a matter of EU law. So not only as a matter of their national constitution, but as a matter of EU law. That was then subsequently applied by the European Commission in so-called 'infringement proceedings'. So the Commission would bring these governments again before the Court of Justice now directly, saying that they are violating this principle.
More specifically, the main culprit here was Poland, which was launching many court-curbing measures since 2015. But at the EU level – so this is where the kind of democratic legitimation element comes in – there was this measure passed called, we know it now as, the 'budgetary conditionality'. And this was a measure which essentially said that if an EU country does not comply with the rule of law, it can lose access to EU funding. And in this piece of legislation, the EU legislators – so that is the EU governments and the European Parliament, but also the European Commission – they referred specifically to this decision by the European Court of Justice. So this is sort of how it worked its way back into the legislative system. So in the end, it wasn't just the Court sort of standing alone with this new decision, but it received sort of, let's say, democratic backing from the government and the parliament.
Alan Renwick 08:56
Yeah, so this is really interesting. And this is getting into why this case – why this decision – really matters. So I guess for our purposes it matters partly because it had big real-world implications, real-world impact. And it also matters because it's quite interesting analytically and allows us to explore how the ECJ operates.
So just exploring the first of those points – the real-world impact – a little bit more. So if I understand correctly, there was already a lot of concern. So this case was in 2018. There was already a lot of concern by that time, that particularly the Polish government, also the Hungarian government, were infringing upon judicial independence. But it wasn't entirely clear what could be done about that. But what this court ruling from the ECJ did was create mechanisms, essentially, whereby the Court could take further action, but also the other institutions of the EU could do so as well. Is that a fair summary?
Michal Ovádek 09:57
Precisely. So that was exactly the problem. So despite the fact that, sort of, everyone implicitly understood that judicial independence is something that's important and that is part of, let's say, the Union's values, and this is also... So the rule of law, let's say, is mentioned in Article Two of the Treaty on European Union. And, but again, it doesn't contain a reference to judicial independence specifically. But no one could really reasonably argue that governments didn't know that they were supposed to abide by the judicial independence. However, it was not written down anywhere explicitly in a way that will be, let's say, actionable. And that's what this decision changed. And indeed, the main issues at the time existed in Poland, where the government really launched a frontal assault on the national courts.
But there were also problems in Hungary, which previously, in fact, the EU tried to tackle. So for example, I believe that it was in 2012 when the Hungarian government lowered the retirement age of judges, I believe, from 70 to 62. It was a quite a radical measure, as a result of which many judges had to depart the judiciary. And in fact, it also affected prosecutors and notaries.
But there was no principal or mechanism under which the EU could act against that. So in fact, the way that it was done at the time was to use a provision on age discrimination as a way of getting at the underlying judicial independence problem. So that was obviously suboptimal. Everyone understood that this was not, you know, a good way of tackling these problems sort of in this roundabout way. And again, that's where this ‘Portuguese judges’ decision really made a difference.
Alan Renwick 11:59
And has it actually been possible to make a difference? So I mean, you're mentioning that various actions have been taken by the EU institutions subsequently. Have they actually been able to, kind of, push back on what the governments have done in order effectively to restore the principle of judicial independence?
Michal Ovádek 12:17
Right, that's a good question. And I suppose the answer is going to be somewhat tentative.
So just to sort of mention one of the strongest enforcement measures taken: it's a fine of one million years that was imposed in Poland as a result of the fact that they refused to abolish a disciplinary chamber, whose purpose was really to control the behaviour of judges that were reluctant, let's say, to follow the government's line. This disciplinary chamber was then attacked by the Commission. And ultimately, the Court of Justice thought that, you know, this is a very serious breach of the rule of law. And this fine is still ongoing. And I believe Poland has accrued something to the tune of €300-400 million by now, and every single day another million is added to that because there's still no compliance.
However, the Polish government has started to back down as a result of all of these mechanisms being triggered. And really, if you kind of look at the timeline of the decisions and of the different measures being taken, it all sort of starts here. This is where, sort of, the first real enforcement action took place following this decision because before that it was mainly the EU, as in the political institutions, let's say – they were trying to break the gridlock over what to do about these issues. But they couldn't. They couldn't. And that's actually one of the reasons why I believe the European Court of Justice got involved in this.
Alan Renwick 13:51
And it clearly gets into a broader question around the degree to which the EU is capable of acting against democratic backsliding within the member states. And I confess it's not something that I followed very closely. So democratic backsliding has been a matter of big concern in Hungary, Poland, but other member states as well. And there have been lots of worries that the EU has seemed fairly impotent in response. I mean, how would you characterise the efficacy with which the EU has responded to these developments?
Michal Ovádek 14:28
So I suppose we have to distinguish the three main institutions in this case. So that will be the European Parliament, the European Commission and the Council of the EU. And they are all obviously composed of different actors, and that also leads to them acting in different ways.
The Commission is the institution that is mostly responsible for ensuring compliance with EU law and the EU values. And most critics would say that it acted too little too late, and a lot of them would say that of its actions even today. However, there are concrete measures that were taken, especially following this ruling, which sort of show at least a willingness on the part of the Commission to do something about it
The European Parliament has been the institution that was most vocal about it, but it has few instruments to do anything tangible, let's say. But it has been raising its voice over this. It's really the first one. In fact, it was the first one to point to the Orbán regime in 2013 and say there are serious issues here and something needs to be done.
And the Council of the EU, where the government sits, has been the most reluctant to do anything. It's the most powerful institution in the EU and has been the most reluctant. And that is understandable from the perspective of the government's thinking that they could be the next in line, right. I mean, they could take action now against Poland. But first of all, they need Poland perhaps on another file, right. Maybe they want to achieve a different legislative goal, and they would need their cooperation there. And second of all, yeah, I mean, it could be them, right. So from that perspective, the governments have been very reluctant to say anything, and I do understand the sense of impotence. But I do think that things have changed significantly. And perhaps even if the remedial action right now is not sufficient – let's say that compliance is not achieved, or, you know, the previous levels of judicial independence are not restored in Poland and Hungary, which seems likely – I think the action taken will dissuade at least some of the potential offenders in the future. So that's probably not a way to think about it.
Alan Renwick 16:31
Okay, very interesting. So that's a discussion of the real-world impact of this ‘Portuguese judges’ case.
Let's turn to the second aspect of how this is interesting in terms of understanding how the ECJ operates. And you said something very striking early on: you said, you talked about how the ECJ was trying to achieve particular things through this judgement. And I suppose an innocent understanding of the role of the courts within the Constitution might be surprised by that phrase because the Court surely isn't trying to do anything – it's merely determining what the law says. So those words suggest that the ECJ was being a rather more kind of strategic actor here. Is that fair?
Michal Ovádek 17:17
Right. So that is understandable, I suppose, from the public's perspective and sort of from the layman's understanding of how the courts work. But academic literature on courts has pointed out that courts are strategic actors a lot of the time and that, you know, there's no automaticity to the application of the law, especially when it comes to these high-profile cases.
When a case reaches a peak court, that typically means that there's quite a bit of ambiguity about the underlying legal texts. And so that means that there's also discretion to decide on which direction should the law go. And that discretion typically lies with the court, right. And so the court would be, most of the time, quite knowledgeable about the political dimension of the case before it, if there's a political dimension to it, which often there is, especially at the highest levels. And so I do understand that the public might find it surprising that a court might have some kind of an objective, but from the perspective of, let's say, academic research, it is quite established.
Alan Renwick 18:17
And let's just dig a little further into what those objectives were before we explore the implications of this. So is it fair to say that it wanted to make a ruling in favour of judicial independence being required at the national level under EU law, and it was kind of looking for a case that would allow it to do that in a way that would stick, a way that would be effective, and it found that this case was a useful kind of vehicle for that objective? Or is that pushing too far?
Michal Ovádek 18:46
Absolutely. I think there is enough evidence to make that claim. And the President of the Court of Justice has subsequently a couple years later also essentially stated that openly, that that was something that the Court was thinking about. And it's understandable. I mean, it's an objective which in and of itself is not particularly surprising: the courts would want to defend judicial independence, right? I mean, it's, in a way, defending themselves, defending their ability to shape the law. And courts in general do have that belief that they should be able to do that independently from, let's say, the government and the parliament. And so it is not an objective, let's say, that would be, I suppose, too controversial also in the public's mind.
Alan Renwick 19:30
I'm just listening to that. I'm thinking about what the kind of average Brexiteer here in the UK might think. And, you know, on the whole, hostility towards the ECJ is quite a central part of the prospectus in favour of leaving the European Union. And part of that is precisely a concern that the judges seem to be pursuing a political agenda – pursuing their own agenda rather than simply doing what they have been instructed to do by elected parliaments. And that here you have a case where it's not just that they're doing that, but they're also doing it when they have their own direct interests at stake, both in the sense that they're protecting the principle of judicial independence, their own independence – so their own exemption from the normal sort of requirements that other parts of the system might operate under – but also, even more specifically, it's a case that concerns the pay of judges. So the original case, going back to Portugal, the claim is that it is inappropriate to reduce judges pay because somehow that violates independence.
So I mean I'm kind of thinking that a lot of Brexiteers, if they're listening to this podcast, are going to be screaming at you and saying that this is outrageous that the judges are being a self-interested cabal, protecting their own interests, protecting their own pay, and the elected politicians can do nothing about it.
Michal Ovádek 20:59
Right. So first of all, I think I should have mentioned this before already: the Court of Justice did not actually support the claim about the pay. So it actually supported the Portuguese government's right to have imposed the kind of austerity measures which would have reduced judges' wages. So that main kind of claim failed. But on the point of principle-
Alan Renwick 21:23
So on the point of principle, it said that it had jurisdiction to decide on matters of judicial independence, but judicial independence wasn't unduly restrained by the pay reduction.
Michal Ovádek 21:34
Yes, essentially. Yeah, exactly. Yeah. So that was, I suppose, one way of guarding against that kind of criticism that you also raised.
On the other hand, I would want to sort of introduce a more realistic understanding of courts. And I suppose it would be healthy for, you know, all citizens to have that. And that courts are actors within a certain institutional system. And they do have preferences over how that system works. You know, we like it or not.
However, I would also want to add, these preferences are constrained. It's not like judges go willy nilly, you know, realise their preferences in all the decisions. It's not like we have a landmark ruling, advancing or extending the interpretation of EU law in some significant way every day, right. We have that only occasionally. And we have that, importantly, I believe – and that's not been mentioned so far enough, I think – when the Court believes that there is a democratic majority actually supporting the course of action that it wants to take. And that was certainly the case here. Yes, Poland and Hungary have protested against this decision. But they have been completely isolated. No one else other than them – other than the governments that are actually undermining judicial independence in their countries – believes that this is something that they should be able to do.
So from that perspective, I think this is a little bit of the idea of the Court acting as a bit of a majoritarian institution, which is counterintuitive because most people think of courts as counter-majoritarian institutions. But they're not necessarily so. They are, let's say, attuned to public attitudes, and also the opinion amongst sort of elite decisionmakers, in this case, national governments in the EU.
Alan Renwick 23:22
Okay, that's very interesting. So in this case, the Court perceived that the other member state governments, apart from Poland and Hungary, would support it taking action here. And I guess there may also have been a perception that public opinion was in favour of the principle of judicial independence and was concerned about what was happening in Hungary and Poland. So it felt that it could act in this case without provoking some kind of backlash.
Michal Ovádek 23:49
Yeah, absolutely. And I think that's important to underline. We're very unlikely to see a ruling which would run counter to, let's say, in some major way, public opinion or the opinion of a majority of governments. In fact, if we look at our statistical models of the Court's decisions, we see that a lot of the time it sides with the majority of governments, so that when the governments do get to express an opinion on the case before the Court, the Court is much more likely to rule in favour of the side of the argument which is supported by more governments rather than fewer governments. And so, again, we see that sort of majoritarian idea underlying the Court's decision-making there.
Alan Renwick 24:30
And that's a point that comes through very, very clearly in the article that you've written about this. And so that's clearly an aspect of the strategic behaviour of the Court.
I mean, I suppose there's another aspect of that strategic behaviour that also comes through in the article, which is that this case was chosen by the Court as a case where it could develop this principle of judicial independence because it could, kind of, do it a bit under the radar. It wasn't very obvious to many people looking at the case from the outside that it was going to yield this very important principle. And therefore, there weren't any attempts by the member states, particularly of Hungary and Poland – the governments of Hungary and Poland – to kind of intervene and make representations to the Court in advance. I mean, I suppose that we might think that has a slightly more kind of negative tone to it – the idea that the ECJ is trying to slip this one through without anyone really noticing too much.
Michal Ovádek 25:32
Yeah, no, I mean, I'm not necessarily condoning that action, of course. I'm not really taking sides here; I'm not saying the ECJ is a good or a bad institution. All I'm saying is that it does act strategically. And indeed, this particular way of making this doctrinal advancement, let's say, is doing it under the radar, right – doing it in a way where most governments were not aware of the significance that the case was going to receive by the Court. Well, that is something that is certainly questionable. But again, the fact that the kind of majority of the governments afterwards legitimated this decision points in the direction that the Court was aware of how the coalitions on this issue were.
And well, yeah, I mean, it's a questionable practice. I'm not sure what else is there to be said, but it's certainly evidence of the strategic nature of judicial decision-making, I think, yes.
Alan Renwick 26:29
And you've said that you're not taking sides. Can I nudge you in the direction just to see what your view is on this?
Because I'm intrigued to know what we should think of this. You've said that we need to be realistic, this is what courts are like, this is not just how the ECJ behaves, but it's how many other courts behave as well – they are strategic, they are political actors in an important sense. And what should we think of that? Should we be concerned that too much power lies in the hands of these unelected elite individuals? Or should we welcome this feature of how peak courts function?
Michal Ovádek 26:36
Sure. I mean, it is an excellent question. And it's a question that could yield probably 100-hour episodes on, you know, the political philosophy of every individual citizen, because ultimately, that's what it comes down to, right: it comes down to your beliefs about how the political system should work and what is the right balance between purely majoritarian decision-making through, let's say, parliaments and governments, and this kind of more technocratic decision-making, of which courts are a major part.
I do think that we should not exaggerate the issue. Of course, courts are important, and they make important decisions. But they're constrained in many different ways. They're constrained, as I said, by the preferences of the governments, because it's something they reflect on. They're constrained by public attitudes. But they're also constrained by the cases in front of them, right. So indeed, in this case, the Court was looking for a case that will be suitable. But it's not like it has an infinite number of cases and it can just intervene in, let's say, an issue of public salience whenever it wants, right. It is constrained by how the system works.
And so I think it's a discussion that we need to have, sort of, constantly and, kind of, regularly evaluate: whether the parameters of the institutional system, be it in the UK or be it in the EU, function according to our, let's say, democratic preferences. But I certainly wouldn't go as far as saying that the way the systems are currently set up are undemocratic or anything of the sort. I think they are certainly defensible on many grounds. And I think there are many good reasons why the system should work the way it does.
Alan Renwick 28:49
And actually, you suggested that what we need is a kind of balance between the majoritarian principle and a more technocratic way of doing things, or a focus more on rights protection. And actually, it's by having courts that behave quite politically and do think about public reactions and government reactions of governments and so on that we achieved that kind of balance. If we didn't have the courts operating in this way, then we wouldn't have such a balanced system across those different principles.
Michal Ovádek 29:18
Yeah, I think the bigger danger is precisely giving into just one of these ideas, right, and saying that the majoritarian principle should rule everything and that there no derogation from it at any cost. And I think that would probably lead to a quite a dangerous world. And especially when it comes to individuals, right? I mean, the rights dimension of it is really important: we would not want the parliament to be making decisions on individuals because the court of public opinion can be quite severe, and especially from the perspective of human rights.
Alan Renwick 29:53
Well, that has been fascinating. We started off there with a rather obscure legal case in Portugal about judges' pay. But we ended up having an exploration of the EU's capacities to confront democratic backsliding and a deeper understanding – a less naive understanding – of how the courts operate in a political environment.
So thank you so much, Michal. That has been really great.
We have been discussing the article 'The making of landmark rulings in the European Union: the case of national judicial independence', by Michal Ovádek, published last year in the Journal of European Public Policy and available for anyone to view online. And as usual, we will, of course, put the full details of the article in the show notes for this episode.
Next week, as I said at the start, we will be looking at the European Court of Human Rights.
Remember, to make sure you don't miss out on that or other future episodes of UCL Uncovering Politics, all you need to do is subscribe – you can do so on Apple, Google Podcasts, or whatever podcast provider you use. And while you're there, we'd love it if you could take a moment of time to rate or review us too.
I'm Alan Renwick. This episode was produced by Conor Kelly and Eleanor Kingwell-Banham. Our theme music is written and performed by John Mann. This has been UCL Uncovering Politics. Thank you for listening.
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