The attempt to transform a democracy into an authoritarian state often begins with the elimination of independent jurisdiction. Constitutional courts, in particular, are targeted – either to incapacitate them or even to turn them into enablers of governmental politics.
This has been observed in Poland and Hungary. In Poland, after the PiS party was voted out of office, efforts are now underway to restore the independence of the constitutional court and to ensure better protection in the future. Meanwhile, in Germany, there are discussions about strengthening the resilience of the Federal Constitutional Court.
This written interview considers the state of judicial independence in the EU today from a post-judicial career retrospective. Professor Marek Safjan was Poland’s appointee at the Court of Justice of the European Union from 2009 to 2024 and President of the Polish Constitutional Tribunal from 1998 to 2006.
Oliver Garner and Konstantin Kipp: Given the rise of right-wing populism across the European Union, must we consider whether European courts could also become targets of authoritarian forces and therefore require better protection against such threats? This is of particular importance because the European courts have played a key role in challenging the authoritarian governments of Poland and Hungary.
Marek Safjan: I fully agree with the assertion that the role of constitutional courts is crucial from the perspective of ensuring the effective protection of standards stemming from the rule of law, including, of course, judicial independence. Authoritarian-leaning governments are well aware that this is a particularly vulnerable point in the structure of any democratic legal state. Thus, such an “attack” is primarily directed at constitutional courts, as has occurred in Poland and Hungary. One could also mention the attack on the Austrian Constitutional Court (and the particularly aggressive personal attack on its President, Professor L. Adamovich) during J. Haider’s government in 2005, in connection with the dispute over official languages in Carinthia. This phenomenon can also be observed in non-European countries, as exemplified by the current Israeli government’s attempts to significantly weaken the position and independence of the Israeli Supreme Court (which also functions as a constitutional court in that system), which has led to widespread societal protests. The sad paradox is that this trend emerges despite strong constitutional guarantees protecting the independence of constitutional courts. This is certainly the case in Poland and Hungary, where the constitution was amended to weaken the position of the court.
Strong guarantees of judicial independence are insufficient if we are dealing with a government that begins to violate the constitution, or that—like in Hungary—possesses a sufficient constitutional majority to amend the constitution. It is exceedingly difficult to defend against a determined ruling majority intent on destroying the independence of the constitutional judiciary by any means necessary, as such a government will not stop when faced with constitutional obstacles.
The true and effective protection against an assault on the rule of law lies primarily in the stance of society, which must possess a mature constitutional awareness and, at some point, express its protest through decisive electoral action to remove autocrats from power. Of course, this scenario assumes that the ruling majority will respect the outcome of a democratic electoral act, which, as we know, is not always the case.
In recent years, we have seen how governments in Poland and Hungary, hostile to the rule of law, have obstructed the work of their constitutional courts and brought them under control. With the rise of populism across Europe, do you think there is a risk that European courts could face a similar fate? You served as a judge at the ECJ for 15 years. During your tenure, did you observe any specific institutional weaknesses that could potentially be exploited by authoritarian governments?
The scale of threats and dangers to the rule of law standards in recent years in Hungary and Poland has been exceptionally large and has exceeded previously anticipated levels of risk, which many considered a highly unlikely hypothesis.
In the case of European judiciary, one cannot assume with absolute certainty that it will not be threatened as a result of political developments in the EU and the rising phenomenon of right-wing populism in certain member states. For far-right groups, the European judiciary is a thorn in their side, as its role and significance cannot be reconciled with the anti-European, and often nationalist, narrative.
Today, however, we observe a trend toward strengthening the position of the Court of Justice of the European Union (CJEU) as a true constitutional court of the EU. The effectiveness of defense against threats to judicial independence in some Member States has resulted from the CJEU’s use of instruments that, in a sense, are federalist, invoking mechanisms of fundamental importance for the Union’s constitutional system, common principles and values, the shared Union axiology rooted in Article 2 TEU, and the concept of the rule of law, as well as the idea of the EU’s constitutional identity. The Court of Justice of the European Union is thus, arguably, the EU institution that today commands genuine respect, and its jurisprudence has—without exaggeration—been key to the processes of European integration. This does not mean, of course, that its jurisprudence has been immune to criticism. In some member states, there have been accusations (sometimes very categorically formulated) regarding the CJEU’s alleged overstepping of its competences (ultra vires claims). The Court’s rulings have even been the subject of extreme and aggressive political criticism, as we observed during the Brexit period in the UK, or in Poland under the PiS government. However, this does not fundamentally alter the assessment of the CJEU as an EU institution that enjoys trust and authority. The court’s rulings, even those previously heavily criticized, have become important reference points for legal reforms and restoring judicial independence (as in the case of Poland).
The question of the degree of real threat to the CJEU—its independence, authority, and ability to influence the functioning of the entire EU legal order due to dangerous political developments in some member states—is complex and does not lend itself to simple answers.
On the one hand, if we look at the perspective of existing formal guarantees, they seem very strong and enable the Court to fulfil its role as guardian of the treaties.
These include, most notably, the universally binding effect of its rulings, the exclusive authority to formulate binding interpretations of EU law in its judgments, which, combined with the principle of EU law supremacy over national systems, provides the Court with highly effective instruments for defending the integrity and inviolability of the European legal order.
On the other hand, it cannot be overlooked that the situation at the Court of Justice is not entirely separate from what is happening within the European Union itself and its member states—it is not an institution isolated in an ivory tower.
Member States remain the masters of the treaties, and they ultimately decide on the shape and functioning of Union mechanisms, including the judiciary.
At the same time, I want to clearly emphasize that during my nearly 15-year tenure at the CJEU, I have not encountered any threats to the Court’s independence, nor have I observed any instance where a court decision was made under political pressure rather than based on substantive arguments. Of course, the Court does not operate in a vacuum, and all major disputes and conflicts within the Union eventually reach the court. Political context, such as existing threats to the European order related to the rule of law crisis, influences the thinking and attitudes of judges, leading to a strong emphasis on certain principles or values, and consequently to a more activist stance by the court, making it more inclined toward flexible and functional interpretations that effectively respond to existing threats. Some may argue that this, too, is political! Indeed, it is also political, because legal instruments are created as a result of political activity by political bodies, and the interpretation of law, due to its consequences, also carries a certain political connotation.
Challenges from the National Selection Procedures
In Poland and Hungary, governments have managed to place loyalists in their constitutional courts. While EU law requires judges to be ‘chosen from persons whose independence is beyond doubt,’ the candidate selection process is left entirely to the member states, which often results in non-transparent procedures sometimes influenced not only by political interests but also by extraneous considerations. The recent ECJ judgment in Case C-119/23 Valancius indicates that a candidate can be appointed even if no formal national selection procedure has taken place (paragraph 60). It also notes that, “in the absence of a specific provision to that effect in Union law, it is for the national legal system of each Member State to regulate the procedural arrangements for the proposal of a (…) candidate” (paragraph 54). Could this suggest a need for a specific EU regulation on this matter? If so, what might such a regulation look like?
I can fully agree with the thesis that there are two sensitive points concerning the composition of the Court of Justice. The first relates to the relatively short (6 years) and renewable judicial term, which could potentially influence the behavior of judges hoping for reappointment. For this reason, there are no dissenting opinions in the Court (unlike the European Court of Human Rights), so as not to reveal any information about the deliberations over the judgments. The second point concerns the process of selecting candidates for judges—candidates are nominated by the governments of Member States, and the treaties do not specify the rules and criteria for selecting such candidates, apart from the general requirement that they must be individuals of undoubted independence. Regarding the selection process, there is significant variation among Member States. In some countries, candidates are selected through a competitive process, while in others, they are chosen exclusively by political bodies without preceding selection procedures (competitions). Sometimes these selection procedures are superficial and not fully transparent, and the composition of the bodies deciding on the nomination is purely political. However, there is no basis in the current legal framework to assert that the European Union could precisely define the requirements for the selection process, as this remains fundamentally within the competence of the Member State. In this sense, the recent judgment in the Valancius case (C-119/23, July 29, 2024) correctly indicates that this is not subject to EU law regulation. Nonetheless, one might ask whether a significant and serious formal defect concerning the nomination process in a Member State (e.g., a violation of constitutional prerogatives defining the competence of the body entitled to make the decision) would be sufficient to question the nomination. The view that, while the internal procedures of a Member State are beyond the scope of EU competence, at least those requirements must be met whose violation could raise substantial doubts in the eyes of an external observer regarding the independence and impartiality of a judge, as stipulated in the treaty provisions (Article 19(2) TEU and Article 254 TFEU), seems correct. This has been the consistent line of jurisprudence regarding the independence requirement, maintained at least since the Simpson case decision of March 26, 2020 (C-542/18 RX-II, C-543/18 RX-II), and particularly in many cases concerning the Polish judiciary.
In my opinion, it would be highly desirable for clear and transparent requirements for conducting the selection procedure in Member States to be established at the Union level. This would help eliminate the current differences between Member States, which are difficult to justify given that the candidates are nominated for the same Court.
Such transparency requirements, for example, apply when selecting candidates for the European Court of Human Rights in Strasbourg, and it is well known that failure to comply with these requirements is grounds for rejecting a list presented by a Council of Europe Member State. It seems that the procedure should be based on principles similar to those currently applied in Member States for appointing judges to the highest national courts. In most countries, these procedures are primarily based on competence criteria, applied by non-political bodies in charge of nominating candidates.
What would likely be also desirable in the future is the strengthening of the status of CJEU judges by extending their term to, for example, 12 years, while eliminating the possibility of reappointment.
Such a solution would significantly reduce the risk of political pressure on judges, thus more effectively protecting their independence. Both proposed solutions, however, would require a treaty amendment.
I began my term in 2009, shortly after the Lisbon Treaty came into force and the procedure envisaged in Article 255 TFEU was launched. This process involves an expert panel composed of representatives from European courts, as well as the highest and constitutional courts of the EU Member States, to evaluate candidates. These opinions, although formally non-binding, have become a necessary and respected element of the nomination process. The relatively significant number of negative opinions suggests that the Committee’s activity is not a formality. Ultimately, however, Member States retain decisive influence over the composition of the Court of Justice, and there is no doubt that it is the decision of these states that will primarily determine the court’s composition.
The political situation in Member States will naturally affect the situation at the CJEU. If we adopt a pessimistic scenario and assume that right-wing populist tendencies prevail in most EU countries, this factor will inevitably shape the composition of European courts. Again, the issue here is not even direct political pressure on the judges making decisions, but rather their general ideological preferences, worldview, and, of course, their stance on the functioning of the EU’s integration mechanisms.
Challenges from the European Appointment Procedure
For a candidate to be appointed as a judge of the ECJ or the General Court, the consent of all Member States is required. However, literature suggests that this consent is often a mere formality and that Member States do not effectively control each other. Do you think this could be because a Member State that objects to another’s candidate risks retaliation when it puts forward its own candidate? Due to the challenges with the appointment procedure, the Lisbon Treaty introduced an aptitude test panel (Art. 255 TFEU) that must issue a non-binding opinion on a candidate’s suitability before each appointment. You personally remained in office for three years beyond your term because this committee found candidates proposed by the Polish ruling party PiS to be unsuitable. In your opinion, is this committee sufficient in the long term to protect the European courts from biased judges?
It is indeed a principle that, according to the treaty, the appointment of a judge to the Court of Justice of the European Union (CJEU) requires the consent of all Member States. Of course, opposition to a candidate is possible, although, to my knowledge, this has so far remained a purely theoretical possibility. In a few instances, a Member State dissatisfied with a negative opinion about its proposed candidate has considered blocking the vote on other candidates. However, to date, such a situation has never occurred. It can therefore be observed that the key role in this process is played by the expert panel’s opinion expressed under Article 255 TFEU. Consequently, in cases where a candidate receives a negative opinion, their nomination is withdrawn, and no vote takes place at the meeting of representatives of the Member States’ governments. Another important factor is the mutual loyalty between Member States: a dispute over a candidate has “political costs,” and breaking consensus can have negative consequences in the future for any State that defies this principle.
Since the panel’s opinions are non-binding, do you think a Member State could potentially force the acceptance of its own candidate, even if the panel issues a negative opinion, by threatening to reject all candidates from other Member States?
A negative opinion from the panel established under Article 255 TFEU has already caused situations where the appointment process for a new judge has been significantly delayed. This is one of the reasons my term was extended by almost three additional years, and despite this, a new Polish judge has not yet been appointed. In Poland, the situation is unique, as the reason for not presenting candidates by the government is primarily an internal issue and a dispute over whether the president’s lack of approval can block the government’s proposals. The president’s prerogative in this matter is constitutionally questionable. As a result, Polish members of both the Court of Justice and the General Court continue their duties despite the expiration of their formal terms, and there is still a vacancy for the position of a judge at the CJEU. I consider it highly unlikely that Member States will begin to treat the non-binding opinions of the Article 255 panel as just one optional element in the process of appointing a new CJEU member. Such a “rebellion” by member states against the panel’s opinions would shift the focus of the procedure toward purely political negotiations and attempts to “push through” candidates in exchange for political concessions. I believe that would be the worst possible outcome, leading to not only the significant politicization of the process but also a reduction in the independence of the CJEU itself, where political preferences would likely replace substantive debate.
Some critics argue that regulations allowing judges to remain in office beyond their term due to delays in replacement can be problematic. They suggest that those in a position to delay replacements might do so to benefit from having a familiar judge handle ongoing cases. How do you view this concern in relation to the European courts? If a European court ends up with a majority of judges remaining long beyond their term due to a deadlock in appointing new judges, could this situation eventually be seen as incompatible with the principle of a correctly composed court?
Frankly speaking, based on past experiences, there is no indication of a real risk of artificially extending judicial terms to achieve a favorable result in ongoing proceedings before the CJEU. My case seems to confirm this. I do not believe I could be considered a judge whose extended term at the CJEU (almost until 2024) was particularly appreciated by the ruling majority in Poland. Yet, attempts to select a Polish candidate during that time were neither energetic nor prompt, with the final list of candidates presented literally on the last day of the PiS government’s tenure. The mechanism of extending a judge’s activity despite the expiration of their term seems to be a fully rational solution from the perspective of the stability of the CJEU’s functioning. This mechanism is also known in some Member States concerning constitutional court judges (e.g., in Spain). In my strong conviction, we should not create legal mechanisms solely based on the desire to eliminate potential risks of abuse. This statement particularly applies to relations between member states within a structure like the European Union, where fundamental principles such as mutual loyalty, trust, and adherence to core EU values, including the rule of law, must play a central role.
The extension of a CJEU member’s term until the appointment of a new member has very strong normative grounding in statutory provisions that hold treaty status. I do not believe it would be possible or justified, given the strong legal legitimacy of a judge with an extended term, to invoke CJEU case law (e.g., the judgment of July 1, 2008, in the combined cases C-341/06P and C-342/06P Chronopost/UFEX) to claim the absence of a valid judicial composition. Any analogy with this case law is, in my opinion, excluded.
Future Outlook
With the planned enlargement of the European Union and the anticipated need for treaty changes, do you think there is a possibility for a collective political will among different actors to introduce new regulations that would strengthen the resilience of the European courts? Given the significant presence of right-wing populists in the European Parliament, could such a debate on changes to the courts’ rules also risk leading to detrimental outcomes?
We find ourselves in a challenging and significant period in the history of the European Union, which is facing challenges that require an adequate response, essential for the future of the EU, and possibly even its existence. In my opinion, we need to strengthen integration mechanisms today, including increasing the role of qualified majority voting in the EU Council and expanding the Union’s competences in the areas of defense and foreign policy. We also need to strengthen the position of European courts, whose responsibility for maintaining the legal order of the Union is steadily increasing.
I am convinced that the Court of Justice will continue to evolve into a true constitutional court of the EU. This evolution requires further changes, such as transferring an increasing number of cases to the competence of the General Court to allow the Court to focus on cases of fundamental constitutional importance for the functioning of the EU.
The growing influence of right-wing and populist tendencies in Europe, and their increasing presence in the European Parliament, will not make this task easier. Moreover, we must be aware that institutional reforms should be decisively implemented before the accession of new Member States, particularly Ukraine. Without these reforms, the EU’s decision-making mechanism, with an increased number of Member States, could become entirely unworkable. I believe now is the last moment (if it is not already too late!) to carry out the necessary institutional reforms, considering the still relatively strong position of the political center in the European Parliament.
However, the barriers may already be too difficult to overcome, particularly during the ratification procedures in Member States required for treaty changes. Of particular concern are the growing Eurosceptic tendencies in the founding states of the European communities, which until recently were the driving force behind integration processes. Increasingly evident is the lack of agreement on key issues such as the influx of refugees, common immigration policy, energy policy, and foreign and defense policy, as shown by the differences between Member States in response to the dramatic events in Ukraine. Under these conditions, it is hard to be overly optimistic about reforms concerning the European judiciary system, especially considering that they could be seen as another attempt to significantly limit the sovereignty of Member States, as would be exemplified by the proposed changes that would establish EU-level rules for internal selection processes in Member States to appoint candidates for European courts.
While I would not fear that the debate on institutional reforms in the Union could dangerously shift toward the Eurosceptic agenda under the current political constellation in the European Parliament, the risk of blocking the reform program seems quite real. However, I believe we have no other choice but to face these challenges, as it may later become entirely unattainable.
