EU funds Effective remedy for manipulated judicial appointments is necessary to restore independence of the judiciary

The Hungarian Kúria is not entitled to rule on EU Court submissions

The Court of Justice of the European Union (CJEU) has delivered a major judgment on judicial independence. According to the CJEU, despite the fact that domestic law permits it, and that such a judgment has already been issued, only one forum can legally decide whether a Hungarian judge’s request for a preliminary ruling to the CJEU is inadmissible – and that is the CJEU itself. The Luxembourg-based Court also ruled that it was against EU law to discipline a national judge under domestic law because he had turned to the CJEU.

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Váltás magyarra

If the Hungarian judicial system itself had not ‘demonstratively rushed to the assistance’ of Pest Central District Court Judge Csaba Vasvári, this case might not have attracted so much attention. Thus, as a result of the active contribution of the Hungarian Prosecutor General, the Kúria and a court leader willing to silence Judge Vasvári, this CJEU judgment gained special significance in both determining the domestic applicability of EU law and the independence of Hungarian judges.

In 2019, Judge Vasvári turned to the CJEU in connection with a criminal case he was hearing. The possibility to turn to the CJEU is open to all Hungarian justices if they have doubts about the interpretation of applicable EU law in a case pending before them. Vasvári did nothing but make use of this possibility.

However, his questions also included those that concerned the independence of the Hungarian courts and the rule of law. He asked, among other things, whether it was compatible with the requirement of judicial independence for Tünde Handó, then President of the National Office for the Judiciary (NOJ President), to fill judicial leadership positions – including the position of court presidents – with temporary assignments beyond the control of judicial self-governing bodies and thus avoid the official application procedure.

Péter Tatár-Kis, the then interim President of the Metropolitan Court initiated disciplinary proceedings against Vasvári for turning to the CJEU. The case was all the more controversial because Péter Tatár-Kis himself was also one of those interim judicial leaders appointed by the NJO President circumventing the application procedure. Therefore, the question referred to the CJEU was rather inconvenient for him. Faced with the outrage it sparked in the Hungarian judiciary, Tatár-Kis later withdrew the disciplinary action he filed against Vasvári.

However, the story did not end here. Prosecutor General Péter Polt – taking advantage of the possibilities inherent in the Hungarian regulations – challenged justice Vasvári’s decision on requesting a preliminary ruling from the CJEU before the Kúria ‘in the interests of legality’. In its decision, which was also assessed as a matter of concern in last year’s European Commission report on the rule of law, the Kúria declared the questions submitted by Vasvári to be unlawful. In any case, the decision of the Kúria could not stop the CJEU in assessing the preliminary request.

Vasvári was thus forced to supplement his original questions with two additional questions: is it compatible with EU law if the Kúria has power to declare a reference for a preliminary ruling to be unlawful? Is it compatible with the requirement of judicial independence to initiate disciplinary proceedings against a judge for requesting a preliminary ruling from the CJEU?

Today’s judgment in Luxembourg concluded that Hungarian legislation which allows the Kúria to override the legality of a judge’s questions to the CJEU is incompatible with EU law. Only a single forum can legitimately decide whether a national judge’s request to the CJEU is admissible, and that is the CJEU itself.

Moreover, the current judgment makes it clear that only the CJEU has the competence to interpret EU law in Hungary. This is of great importance in light of the Government-initiated procedure asking the Hungarian Constitutional Court to rule that domestic law has precedence over EU law in cases important to the Government – even in the case of final CJEU judgments.

In addition, today’s CJEU ruling states that EU law precludes ‘disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling to the Court of Justice’. Similarly, it should not have been possible to initiate disciplinary proceedings against Vasvári either.

Today’s judgment in Luxembourg is of particular importance for the independence of the judiciary. If a national judge is not free to make use of the possibilities provided by law because their questions to the CJEU may be declared illegal by another, higher domestic court; or disciplinary proceedings may be brought against them by their superiors; this will not only impede the application of EU law, but it will also deeply wound the independence of that judge.

Furthermore, the retaliation against Vasvári sent a message to other Hungarian judges that it was not worthwhile, or was even risky to turn to the CJEU if there was a possibility that domestic regulations could conflict with EU law which would otherwise take precedence.

‘Today’s ruling proves that the more actively judges are controlled by their court leaders, the more evidence is provided that judicial independence is in jeopardy or no longer exists’, said Erika Farkas, of the Hungarian Helsinki Committee.

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Hungarian Helsinki Committee