Koen Lenaerts (*)
This text is part of the speech delivered by the president of the CJUE Koen Lenaerts on 17 February 2023 at the conference organized by the Bulgarian Association for European Law in Sofia.
It is an honour and a pleasure to be with you today in Sofia.
Like this fascinating city full of history, where national influences blend together with those from Greek, Roman, Ottoman and Soviet times into something beautiful and unique, the European Union is built upon values which – having their origin in different Member States and different moments in time – form today the very core of the EU’s own constitutional identity.
These values are listed in Article 2 TEU: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
However, as Article 2 TEU emphasizes, those values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Therefore, these values are not unilaterally imposed on the Member States “by Brussels or by Luxembourg”. On the contrary, they are the consequence of a ‘bottom-up’ approach, as they stem from the constitutional traditions common to the Member States.[1]
In the recent Conditionality Judgments, the Court of Justice made this crystal clear. It held that ‘[t]he values contained in Article 2 TEU have been identified and are shared by the Member States. They define the very identity of the European Union as a common legal order ’.[2]
According to the Court, Article 2 TEU is not merely a statement of policy guidelines or intentions. The values it contains are given concrete expression in principles containing legally binding obligations for the Member States.[3]
I. Implications for the Member States
The central place of these values in the European legal order has two direct implications for the Member States.
First, whilst EU law does not impose a ‘particular constitutional model’ governing the relationship and interaction between the various branches of the State, a candidate State for EU membership must align its own constitution with the values on which the EU is founded in order to become a Member State, as the Court made clear in its rulings in Repubblika and Euro Box Promotion[4]. It is therefore for each Member State to choose the model that best reflects the choices made by its own people, provided that those choices comply with the EU’s founding values.[5]
For example, the constitutional model chosen by a Member State may organise the judiciary in a way that is different from that of another Member State. Member State ‘A’ may decide to establish a Constitutional Court whose decisions are binding upon ordinary courts. By contrast, Member State ‘B’ may prefer not to have such a court, because of its legal tradition and culture. The EU must respect both choices, provided that they adhere to the concept of the rule of law, as laid down in Article 2 TEU. This means for Member State ‘A’ that its Constitutional Court whose decisions are binding upon ordinary courts must be independent, since only respect for that independence may guarantee effective judicial protection of EU rights.[6] I will come back to this aspect later.
The decision to align its own constitutional arrangements with EU values is a sovereign choice of the candidate State for EU membership.[7] However, if such State fails to do so, Article 49 TEU bars it from becoming a member of the EU.[8] Acquiring the status of ‘Member State’ is, therefore, a ‘constitutional moment’ for the State concerned since at that very moment, the legal order of the new Member State is deemed by the ‘Masters of the Treaties’ to uphold the values on which the EU is founded.
Second, upon accession, the Member State in question commits itself to respecting those values for as long as it remains a member of the EU. That ongoing commitment means that there is ‘no turning back the clock’ when it comes to respecting the values contained in Article 2 TEU.
To put it with the words of the Court in its Conditionality Judgments:‘[c]ompliance with those values cannot be reduced to an obligation which a candidate State must meet in order to accede to the [EU] and which it may disregard after its accession’.[9] The Member States must respect those values ‘at all times’.[10]
Furthermore, the level of value protection provided for by a Member State when it joined the EU is a starting point and the trend of constitutional reforms must always be towards strengthening that protection. As the Court of Justice held in Repubblika, ‘[a] Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU’.[11] The EU legal order therefore prohibits ‘value regression’.
Once a candidate State becomes a Member State, it joins a legal structure that is based on the fundamental premise that each Member State shares with all the other Member States these common values and abides by the obligations stemming from them. It is precisely that premise that implies and justifies the existence of mutual trust between the Member States.[12]
As the Court repeatedly stressed, it follows that compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State.[13] Moreover, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties. [14]
This brings me to my next points: the particular importance the respect of the rule of law holds amongst the values listed in Article 2 TEU and the defense mechanisms provided for by Union law.
II. The rule of law and judicial independence
The rule of law is the ‘backbone of any modern democratic society’[15] and as such has been upheld by the Court of Justice long before it found its way into Article 2 TEU. In fact, ever since its landmark judgment in Les Verts[16], which was handed down in 1986, the Court of Justice has repeatedly stated that the EU is a “Union based on the rule of law”.[17] If this fundamental value is not respected, all other values listed in Article 2 TEU become empty promises.
At the most basic and fundamental level, respect for the rule of law means that no one is above the law, neither Member States, nor EU institutions, nor indeed private persons, whether legal or natural.[18] Member States must comply with all of their obligations under Union law, and any unilateral measure that breaches those obligations is prohibited. For their part, EU institutions may act only in accordance with the powers conferred on them by the Treaties. For the Court itself this means, in particular, that it must ensure effective judicial protection without exceeding the limits of its jurisdiction, which it derives from the EU Treaties.
Courts of law – as independent arbitrators – are the guardians of the rule of law. As the Court emphasized in its seminal “Portuguese judges” ruling, the independence of the judiciary is an essential prerequisite for a legal system that respects the rule of law.[19]. Without independent judges, public authorities are free to exercise their power arbitrarily with impunity. Without independent judges, there is no effective judicial protection of the fundamental rights and freedoms of the citizens. Without judicial independence, judicial remedies become a ‘scrap of paper’ and judges no more than paper tigers. In other words, without independent judges, the rule of law is meaningless in practice.[20]
Of course, the respect for judicial independence is by no means an invention of the Union. It is part of the democratic heritage of all Union citizens, as attested by the references to an independent judiciary in the Constitutions of all Member States of the EU, without exception.
It is important to stress that the EU judicial architecture includes not only the EU Courts (the Court of Justice and the General Court) but also national courts, which are in fact an essential building block of the EU’s constitutional structure, playing three vital roles within it.
First and foremost, they are to provide individuals with effective judicial protection of their EU rights. In fact, as early as 1963, the Court of Justice emphasized in its seminal judgment in van Gend & Loos,[21] that the task of ensuring such protection does not fall exclusively to the Commission – through the introduction of infringement proceedings before the Court – but also (and above all) to national courts. It is therefore for the Member States, in accordance with Article 19(1) TEU, to provide ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’.
Second, national courts in cooperation with the Court of Justice secure the uniform interpretation and application of EU law and in doing so, they guarantee that EU law has the same meaning throughout the Member States. Since there is no equality before EU law without such uniform interpretation and application, Member States must refrain from adopting measures that may undermine the operation of the preliminary reference mechanism,[22] laid down in Article 267 TFEU, which is the ‘keystone of the EU judicial system’.[23]
Third and last, in order to establish an Area of Freedom, Security and Justice (the ‘AFSJ’) which guarantees the free movement of judicial decisions, national courts must trust each other in that they are equally committed to providing effective judicial protection to the EU rights.
Given the central role of national courts in the EU’s constitutional structure and in applying and enforcing EU law in the Member States, judicial independence must be ensured in respect of each and every court within the national judicial systems.
Where a Member State adopts measures that undermine the independence of national courts, the EU judicial architecture is compromised and so is the rule of law within the EU. Indeed, only independent national courts can provide effective judicial protection of EU rights ‘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’. [24]
Any undue interference with the independence of national judges triggers a domino effect by undermining mutual trust and the uniform application of Union law and thus directly threatens the rule of law in the EU as a whole. Such attacks on the judiciary in one Member State cannot therefore be brushed aside as being “no one else’s business”. On the contrary, due to the essential nature of judicial independence in the EU legal order, they are “everyone’s business”. That is why the Court of Justice, in its “Portuguese judges” ruling[25] held that EU law itself – notably Article 19(1) TEU – can be relied upon in order to safeguard the independence of judges within the Member States.
In this context, it is important to note that the Court of Justice does not handpick the cases on judicial independence it adjudicates on. It also does not go out looking for rule of law cases in order to establish the principles it deems necessary to protect the national judges from external influences. Its powers in this respect are therefore always reactive, not proactive. It simply deals with the cases that are brought before it.
In its mission of upholding the rule of law within the Union, the Court has repeatedly stressed that the primary responsibility for the organization of justice lies with the Member States.[26] It has also recognized that Member States enjoy a discretion in implementing the principles of the rule of law.[27]
However, in order to allow for the mutual trust between Member States’ legal orders to play its role and for the European integration project to function, the national understanding of the rule of law is “circumscribed” by the contents of the rule of law at EU level. Throughout the recent years, an EU rule of law “framework of reference” has been fleshed out, inter alia, through numerous preliminary references brought by concerned national judges, enforcement actions introduced by the European Commission, as well as annulment actions of the Member States.
This framework has been developed notably through the prism of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the EU (“the Charter”).
III. Article 19(1) TEU and Article 47 of the Charter
Article 19(1) TEU, which gives concrete expression to the rule of law,[28] imposes on the Member States the obligation to provide for effective remedies ‘in the fields covered by EU law’. Given that there is an unbreakable link between effective remedies and independent courts, Article 19(1) TEU obliges the Member States to protect the independence of their courts and thereby the EU judicial architecture.
Unlike the Charter,[29] the application of Article 19(1) TEU is not made conditional upon EU law being implemented in the case at hand. That Treaty provision applies where a particular body, which is considered to be a ‘court or tribunal’ within the meaning of EU law, enjoys jurisdiction over questions pertaining to the interpretation and application of EU law.[30] If that is the case, Article 19(1) TEU applies, protecting the independence of such a court. It follows that this Treaty provision protects the independence of Member State courts at all times. That is because only such permanent protection may prevent the entire edifice of EU judicial remedies from collapsing.[31]
In particular, unlike Article 47 of the Charter – which stipulates the right to an effective remedy and to a fair trial in case of violations of rights and freedoms guaranteed by EU law – the scope of application of Article 19(1) TEU is not limited to protecting the rights that EU law confers on individuals.[32]
Acting in an individual capacity, a judge, just like any person, has the right to ‘an independent judge or tribunal’ enshrined in Article 47 of the Charter, provided that he or she requests the judicial protection of his or her EU rights.[33] Acting in an institutional capacity, a judge whose independence is being undermined by executive or legislative action may bring proceedings before another court on the ground that such course of action is contrary to Article 19(1) TEU. This is so regardless of whether his or her EU rights are directly at issue.[34]
That said, whilst Article 47 of the Charter and Article 19(1) TEU cover different dimensions of judicial independence – the first as fundamental right, the second as a concrete expression of the rule of law[35] – both provisions have the same normative content.[36]
First, they both cover internal and external independence. Both provisions also cover the guarantee of access to a tribunal previously established by law.[37]
Second, both provisions apply with regard to all rules that may adversely affect the independence of Member State courts. Those rules relate inter alia to the composition of a ‘court or tribunal’,[38] within the meaning of EU law, and the appointment, length of service and grounds for abstention, recusal and dismissal of its members. In particular, they may relate to disciplinary matters,[39] secondments,[40] and involuntary transfers.[41]
Third, the Court of Justice has explicitly stated that the interpretation of Article 19 TEU draws on that of Article 47 of the Charter.[42]
Fourth and last, both provisions produce direct effect. [43] They can therefore be invoked by individuals before national and European courts and national courts have to set aside conflicting national measures.
The framework the Court of Justice has developed on the basis of those provisions (and the case-law of the European Court of Human Rights) states essentially that the requirements of independence and impartiality under EU law “presuppose rules […] that are such as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the body in question to external factors and its neutrality with respect to the interests before it”.[44] These requirements, which are “inherent in the task of adjudication, form part of the essence of the right to effective judicial protection and the fundamental right to a fair trial”.[45]
In order to determine whether national rules dispel such doubts, due regard must be paid not only to their normative content, but also to the general context, the reasons behind their adoption and the way they are enforced.
The A.B. and Others case, in which the Court of Justice was asked about the process for appointing judges to the Polish Supreme Court, provides a good example.[46] In that case, the Court observed that the absence of a judicial remedy in respect of such an appointment may not be problematic from the standpoint of judicial independence in certain circumstances. However, ‘the situation is different in circumstances in which all the relevant factors characterising such a process in a specific national legal and factual context, and in particular the circumstances in which possibilities for obtaining judicial remedies which previously existed are suddenly eliminated, are such as to give rise to systemic doubts in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that process’.[47]
However, as the Repubblika judgment makes clear, not every constitutional reform affecting the judiciary will fall short of the requirements of Article 19(1) TEU and Article 47 of the Charter. In Malta, a body was established, the Judicial Appointments Committee, that gave advice to the Prime Minister about the eligibility and merit of the candidates for appointment to judicial positions. That body, whose independence was not questioned by the referring court, in fact contributed to objectivising the appointment process to judicial positions, which constituted a step forward in strengthening the guarantee of judicial independence if compared with the appointment process in force at the time Malta acceded to the EU in 2004.[48] The devil therefore lies, as always, in the details and an overall assessment of all the relevant factors is required.[49]
Let me now turn to the different procedural defence mechanisms provided for under EU law in order to protect the rule of law and judicial independence.
IV. Procedural defence mechanisms
Of course, the first thing that comes to mind when thinking about such mechanisms is Article 7 TEU, which allows the Council acting upon a decision of the European Council to suspend certain rights of a Member State, including its voting rights, in case of a serious and persistent breach by this Member State of the values referred to in Article 2. However, most scholars agree that Article 7 TEU – which is sometimes referred to as the ‘nuclear option’ – is not really an effective tool.
It is therefore reassuring that the protection of the rule of law and judicial independence is by no means limited to Article 7 TEU. In fact, the respect for the rule of law was upheld by the Court of Justice since its landmark judgment in Les Verts,[50] which I already referred to earlier on – and thus long before Article 7 TEU found its way into the Treaties.
As the Court of Justice has put it, ‘numerous provisions of the Treaties, frequently implemented by various acts of secondary legislation, grant the EU institutions the power to examine, determine the existence of and, where appropriate, impose penalties for breaches of the values laid down in Article 2 TEU committed in a Member State’.[51]
Regarding the rule of law and judicial independence, the most important substantive provisions under primary law are – as I said before – Article 19(1) TEU and Article 47 of the Charter. I would therefore first like to take a look at the procedural avenues for invoking these provisions.
Furthermore, given the prime importance judicial independence has for the integrity of judicial dialogue in the context of the preliminary reference procedure as well as for the operation of the principle of mutual trust between the national courts of different Member States, I would like then to expose briefly the procedural defence mechanisms existing with regard to these two specific aspects.
Last, but not least, I would like to turn to the conditionality mechanism laid down by secondary legislation, namely Regulation 2020/2092.
- Procedural avenues for invoking Article 19(1) TEU and Article 47 of the Charter
As to the procedural avenues for invoking Article 19(1) TEU and Article 47 of the Charter before the Court of Justice, a distinction must be drawn between infringement actions and preliminary references.
In the context of infringement actions, the application of Article 19(1) TEU only requires that the independence of the courts of the defendant Member State, which may be called upon to rule on questions relating to EU law, is adversely affected by the national measure(s) or practice(s) challenged by the Commission or another Member State. If that is the case, the Court of Justice will find that Article 19(1) TEU applies and proceed to examine the merits of the action.[52] Given that infringement actions seek to determine whether the defendant Member State infringes EU law in general, there is no need for a relevant dispute before the national courts.[53]
The situation is different with regard to preliminary references. Indeed, Article 19(1) TEU cannot change the function of the Court of Justice in the context of this procedure, which ‘is … to help the referring court to resolve the specific dispute pending before that court’.[54] Hence, the need to safeguard the EU judicial architecture cannot go as far as transforming the preliminary reference mechanism in some sort of infringement action.
As the Court of Justice observed in Miasto Łowicz, access to the preliminary reference procedure is made conditional upon the existence of a connecting factor between the interpretation of Article 19(1) TEU (and Article 47 of the Charter) sought by the referring court and the dispute before it.[55]
It is rather straightforward to establish the connecting factor between Article 19(1) TEU and the dispute in the main proceedings in cases where the judges whose independence is being threatened are parties to those proceedings. In order to ensure compliance with the rule of law, those judges must have access to effective remedies before an independent court of law. Since Article 19(1) TEU produces direct effect, applicants may rely on that Treaty provision in order to have a court set aside conflicting national measures.
The connecting factor is even more straightforward where a national judge – or any other person for that matter – seeks judicial protection of his or her EU rights. In that type of situations, both Article 47 of the Charter and Article 19(1) TEU apply to the case at hand.
As the Court of Justice has pointed out, the connecting factor may be of a substantive or a procedural nature. For example, in Associação Sindical dos Juízes Portugueses, it was substantive since the referring court had to decide whether it should annul administrative decisions reducing the salaries of members of the Tribunal de Contas (Court of Auditors) on the ground that the national legislation providing for such reduction was incompatible with Article 19(1) TEU.[56]
In A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), that connecting factor was procedural. In this case, the applicants in the main proceedings, who were judges of the Polish Supreme Court, challenged their early retirement which was brought about by the entry into force of new national legislation. They argued that that legislation was incompatible with the prohibition of non-discrimination on grounds of age set out in Directive 2000/78. Since effective judicial protection must be afforded to the rights contained in that directive, the Court of Justice held that the contested measures ‘implemented EU law’ within the meaning of Article 51(1) of the Charter, so that Article 47 of the Charter applied to the cases at hand.[57] The Court of Justice then went on to find that Article 47 of the Charter precludes a Member State from stripping a court of its jurisdiction over disputes concerning the retirement regime applicable to judges in order to confer that jurisdiction on another court that is not independent.[58] The Court of Justice also held that the same reasoning applied in respect of Article 19(1) TEU.[59]
By contrast, in Miasto Łowicz, that connecting factor was missing, since an answer to the questions referred by the national courts was not objectively needed for the resolution of the disputes in the main proceedings. Those questions, which were of a general nature, sought to determine whether the legislative reforms affecting the disciplinary proceedings applicable to judges called into question the principle of judicial independence within the meaning of Article 19(1) TEU.
Let me now turn to my second point, the protection of the preliminary reference procedure.
- Protection of the preliminary reference procedure
The judicial dialogue between national courts and the Court of Justice in the context of the preliminary reference procedure laid down in Article 267 TFEU is the cornerstone of the Union’s judicial system. This dialogue can only be successful when the Court of Justice’s counterpart is a court that is itself unswervingly committed to upholding the rule of law, to respecting the Union’s values and principles and whose independence is beyond doubt.
Therefore, in order to protect the integrity of this dialogue, the preliminary reference procedure is open only to independent courts which may be relied upon to apply the answers provided by the Court of Justice faithfully. Yet, the Court of Justice does not want to rashly close the door to judicial dialogue with the courts from a Member State experiencing some trouble with respect to judicial independence.
Last March, the Court of Justice issued an important ruling in this respect in Getin Noble Bank.[60] It established a presumption according to which courts and tribunals belonging to the national judiciary are presumed to satisfy the requirements for having access to the preliminary reference procedure. That is so irrespective of their actual composition. However, that presumption may be rebutted by a final judicial decision handed down by a national or international court or tribunal that leads to the conclusion that the judge or judges constituting the referring court are not an independent and impartial tribunal previously established by law. If that is the case, the referring court in question will no longer have access to the preliminary reference mechanism.
Apart from questions relating to the independence of the referring national court, there are other cases where national measures interfere with the dialogue between that court and the Court of Justice and in so doing, disrespect the principle of judicial independence.
It is settled case law that Article 267 TFEU confers on national courts the widest discretion in referring matters to the Court of Justice. Accordingly, national measures that curtail that discretion are incompatible with EU law.[61] Whilst declaring the reference in Miasto Łowicz inadmissible, the Court of Justice did send, nevertheless, a clear message regarding measures that prevent a court from using that discretion. In an obiter dictum, it recalled that Article 267 TFEU will protect any judge who is subject to disciplinary proceedings as a result of making a reference. Those disciplinary proceedings ‘cannot be permitted’, since not only do they interrupt the dialogue between the Court of Justice and the referring court, but also undermine the judicial independence of the latter court.[62]
This obiter dictum constitutes an important development in the case law of the Court of Justice since it incorporates the discretion of the judge to make a reference into the content of the principle of judicial independence. In his Opinion in Commission v. Poland (Disciplinary Regime for Judges), AG Tanchev drew on that obiter dictum, adding that the prospect of disciplinary proceedings against courts which made a reference could have a ‘chilling effect’ on all courts of the Member State concerned, since those courts would, in future cases, think twice before engaging in a dialogue with the Court of Justice. In his view, that prospect ‘strikes at the heart of the procedure governed by Article 267 TFEU and with it, the very foundations of the Union itself’.[63]
Subsequently, the Court of Justice developed that line of case law further in RS (Effects of the decisions of a constitutional court), this time in respect of national constitutional courts. It held that Article 267 TFEU, among other Treaty provisions, prohibits ‘national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law’.[64] In addition, the Court of Justice found that that Treaty provision precludes disciplinary proceedings from being brought against a judge who sets aside a judgment of the constitutional court of a Member State by which that court refused to give effect to a preliminary ruling from the Court of Justice.[65]
In A.B. and Others (Appointment of judges to the Supreme Court – Actions), the Court of Justice pointed out that Article 267 TFEU does not oppose national laws that change the organisation of national courts and in so doing, repeal the legal basis on which the referring court exercises its jurisdiction. However, those changes may not produce the specific effects of preventing national courts from maintaining requests for a preliminary ruling that have already been made, and from repeating similar requests in the future.[66] In other words, those changes may not ‘shut the door’ to an ongoing dialogue between the Court of Justice and national courts, and ‘lock that door’ forever in relation to new similar cases.
Next, I would like to come to my third point, the question what mechanism EU law provides for national courts which have serious doubts concerning the judicial independence of a court from another Member State whose decision they are supposed to enforce.
- Mutual trust between national courts
The Court of Justice has consistently held that the principle of mutual trust and the principle of judicial independence go hand-in-hand in the Area of Freedom, Security and Justice (the ‘AFSJ’). The free movement of judicial decisions can only take place if the Member States trust each other in that they are equally committed to upholding the values on which the EU is founded, notably the rule of law. More often than not, the execution of judicial decisions in the AFSJ entails the adoption of coercive measures that limit the fundamental rights of the person concerned, especially the right to liberty. In the context of the European Arrest Warrant (the ‘EAW’), this is, for example, regularly the case. Only an independent court may guarantee that the judicial decision to be recognised and enforced was adopted in keeping with the fundamental rights guaranteed by the Charter.
Ever since its ruling in LM v. Minister for Justice and Equality (Deficiencies in the system of justice), the Court of Justice held that the executing judicial authority must refuse to execute an EAW where there is ‘a real risk that the person [concerned] will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal’.[67] In assessing the existence of that risk, the Court of Justice pointed out that the referring court must carry out a two-step examination.
It is worth recalling those two steps. The first step focuses on the situation of the justice system of the Member State concerned as a whole.[68] The executing judicial authority must, in the light of objective, reliable, specific and properly updated material, find that there is a real risk of breach of the fundamental right to a fair trial, connected in particular with a lack of independence of the courts of the issuing Member State, on account of systemic or generalised deficiencies in the justice system of the issuing Member State.
As a second step, the executing judicial authority must assess the circumstances of the case at hand. Having regard to the personal circumstances of the individual concerned, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis for the EAW, the executing judicial authority must determine whether the systemic or generalised deficiencies in the justice system of the issuing Member State are liable to call into question the independence of the court that actually issued the EAW in question. [69]
Both referring courts and academics have urged the Court of Justice to abandon the second step.[70] In Openbaar Ministerie (Tribunal established by law in the issuing Member State), the referring court asked, in essence, whether the two-step examination was also applicable where the fundamental right to ‘a tribunal previously established by law’ is at issue. In its judgement, which was handed down in February 2022, the Court of Justice confirmed the necessity of this two-step examination before refusing the execution of a EAW.
Indeed, first, abandoning the second step would involve a de facto suspension of the EAW mechanism which is a prerogative of the Council acting upon a decision of the European Council grounded in Article 7 TEU. Second, the EAW mechanism seeks to combat the impunity of a requested person who is present in a territory other than that in which he or she has allegedly committed an offence. The Court of Justice pointed out that if the second step were to be abandoned, this would allow those persons to go free, ‘even if there is no evidence, relating to the personal situation of those individuals, to suggest that they would run a real risk of breach of their fundamental right to a fair trial’ if the EAW is executed.[71] Third, the EAW framework decision has to be interpreted not only in the light of the rights of the person concerned by the EAW but also in light of those ‘of the victims of the offences concerned’. This means that a finding that the person concerned faces a real risk of breach of his or her fundamental right to a fair trial must have ‘a sufficient factual basis’.[72]
As my fourth and last point, I would like to turn to the conditionality mechanism provided for by Regulation 2020/2092.
- The conditionality mechanism
The question that arose last year was whether the EU legislature could adopt measures that seek to protect the rule of law, in general, and the principle of judicial independence, in particular. Until the conditionality mechanism was adopted, the role of the political institutions of the EU was limited to adopting soft-law measures and to bringing infringement actions based on Article 19 TEU. At the policy level, the EU legislature had yet to act. With the adoption of the conditionality mechanism set out in Regulation 2020/2092,[73] the European Parliament and the Council decided to protect the EU budget in the case of breaches of the principles fleshing out the value of the rule of law in the Member States.[74]
In application of the conditionality mechanism, breaches of those principles may, for example, entail the suspension of payments from the EU budget to the Member State concerned, provided that those breaches ‘affect or seriously risk affecting the sound financial management of the [EU] budget or the protection of the financial interests of the Union in a sufficiently direct way’.[75] The suspension ‘must [, however,] be lifted where the impact on the implementation of the budget ceases, even though the breaches of the principles of the rule of law found may persist’.[76]
Hungary and Poland each brought an action for annulment against the Regulation, arguing inter alia that the EU lacked competence to adopt the conditionality mechanism. At this stage, I would like to focus on one key aspect of those two judgments, namely that relating to the horizontality of the conditionality mechanism.
Hungary and Poland argued that the conditions for the receipt of financing from the EU budget ‘must be closely linked either to one of the objectives of a programme or of a specific EU action, or to the sound financial management of the Union budget’.[77] However, the Court of Justice took a different view, holding that the conditionality mechanism can also entail ‘horizontal conditionality’, meaning that the condition in question can be linked to the value of the rule of law contained in Article 2 TEU.
The reasoning of the Court of Justice follows a two-part structure.
First, it proceeded to stress the cardinal importance of the values on which the EU is founded, which define ‘the very identity of the European Union as a common legal order’[78]. As I mentioned at the beginning of my speech, the Court of Justice has repeatedly stressed that compliance with those values must be guaranteed for as long as a Member State remains within the EU and is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State.[79] Accordingly, the EU ‘must be able to defend those values, within the limits of its powers as laid down by the Treaties’, by means of a conditionality mechanism.[80]
Second, the Court explained the relationship between the principle of solidarity, the EU budget and the value of respect for the rule of law.
The EU budget gives practical effect to the principle of solidarity, which is also mentioned in Article 2 TEU. The implementation of that principle, through the EU budget, is based on ‘the principle of mutual trust between the Member States in the responsible use of the common resources included in that budget’.[81] As mentioned above, mutual trust implies and justifies that each Member State is equally committed to upholding the rule of law within the EU.
Logically, the Court of Justice came to the inexorable conclusion that there is a clear link between respect for the value of the rule of law and the efficient implementation of the EU budget. Breaches of the principles of the rule of law may compromise the sound financial management of the EU budget and the EU financial interests, in so far as they may prevent expenditure covered by the Union budget from complying with the financing conditions laid down by EU law and thereby from meeting the objectives pursued by the European Union when it finances such expenditure.[82]
Contrary to the views put forward by Hungary and Poland, the conditionality mechanism does not allow the EU institutions to examine situations that fall outside the scope of EU law. This is because the breaches of the principles of the rule of law, as provided for by the conditionality mechanism, must have three features.
To begin with, they must entail a breach of the rule of law within the EU, i.e. endangering the independence of the judiciary, failing to correct or punish abuse of power, or rendering remedies ineffective.[83]
Next, they must ‘affect or seriously risk affecting the sound financial management of the [EU] budget or the protection of the financial interests of the [EU] in a sufficiently direct way’.[84]
Last, but not least, they must concern situations or conduct of public authorities that are relevant to that sound financial management or to that protection.[85] This is, for example, the case of breaches that compromise the proper functioning of public authorities implementing the EU budget or carrying out financial control. The same applies to breaches that compromise the proper functioning of investigation and public prosecution services in relation to fraud and corruption relating to the implementation of the EU budget. Similarly, the conditionality mechanism will apply in relation to breaches of the principles of the rule of law that compromise the effective judicial review by independent courts of actions or failures to act on the part of those authorities or those services.
Those three features show that the conditionality mechanism only applies to situations that are relevant to the effective implementation of the EU budget, falling within the scope of EU law.[86]
Please allow me some last concluding remarks.
V. Concluding Remarks
As we have seen, the rule of law and the principle of judicial independence form an essential part of the constitutional identity of the European Union, as much as they are an essential part of the constitutional identity of the Member States. It is of utmost importance that national courts and the Court of Justice work together as allies to uphold that principle and in so doing, the rule of law within the EU.
National identity, within the meaning of Article 4(2) TEU, is therefore to be built in keeping with the values listed in article 2 TEU and a constructive dialogue between the Court of Justice and national courts. It is only through such a dialogue that the right balance between the respect of this identity and the primacy of EU law – which seeks to guarantee the equality of Member States before that law, equally protected under Article 4(2) TEU – can be found. There is no room for judicial unilateralism or claims based on national identity calling into question that primacy and equality.
When interpreting EU law, the Court of Justice takes into account national identities, within the meaning of Article 4(2) TEU. National courts play a key role in drawing to the attention of the Court of Justice the elements that they consider essential for protecting and promoting their own national identities.
The preliminary reference made by the Administrative Court of the City of Sofia in the Stolichna obshtina, rayon ‘Pancharevo’ case[87] is an excellent example in this regard. In that case, the Court of Justice held that, as EU law currently stands, it is for each Member State, according to its own identity, to decide the meaning of the institution of marriage and parentage. The Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law. Nevertheless, in exercising that competence, each Member State must comply with EU law, in particular the provisions of the TFEU on the freedom conferred on all Union citizens to move and reside within the territory of the Member States. Member States must therefore recognize, for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State.[88]
In its judgment, the Court of Justice stressed that the obligation for a Member State to issue a passport to a child who is a national of that Member State, who was born in another Member State and whose birth certificate issued by the authorities of that other Member State designates as the child’s parents two mothers, does not undermine the national identity of that Member State. In fact, such an obligation does not require the Member State in question “to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents.” [89]
Hence, the Court of Justice has interpreted the notion of national identity, within the meaning of Article 4(2) TEU, as allowing room for diversity, while ensuring the primacy of EU law.
The principle of primacy serves, in my view, to protect and to strengthen the alliance between national courts and the Court of Justice. It allows national courts to rely on EU law with a view to setting aside national law and even constitutional reforms that undermine the values on which the EU is founded. In protecting national courts from reforms that undermine their independence, EU law ensures that those courts and the Court of Justice remain strong allies who are able to defend the EU as a ‘common legal order’ based on the rule of law.
***
(*) President of the Court of Justice of the European Union and Professor of European Union Law, Leuven University. All opinions expressed herein are personal to the author.
[1] In relation to the value of respect for the rule of law, see judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 237, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 291.
[2] Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 127, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 145.
[3] Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 232, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 234.
[4] See, to that effect, judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, EU:C:2021:311, paras 61 and 62, and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paras 160, 161 and 229.
[5] See also judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, para. 229, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, para. 43.
[6] See judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, para. 230.
[7] The same applies where a Member State decides to withdraw from the EU. See judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, para 50.
[8] That provision states that ‘[a]ny European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.’ (Emphasis added). Judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, EU:C:2021:311, para. 61.
[9] Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 126, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 144.
[10] Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 234, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 266.
[11] Judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, EU:C:2021:311, para. 63.
[12] Judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 125 and the case-law cited.
[13] Judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 126 and the case-law cited.
[14] Judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 127.
[15] European Commission, A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final.
[16] Judgment of 23 April 1986, Les Verts/Parlement, 294/83, EU:C:1986:166.
[17] Judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, para. 31, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586 para. 49.
[18] Judgment in Les Verts v Parliament, 23 April 1986, Case C-294/83, EU:C:1986:166, paragraph 23.
[19] Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paras 36 to 41.
[20] See in this respect, judgment of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:586, paragraph 48, in which the Court ruled that judicial independence “forms part of the essence of the fundamental right to a fair trial, a right 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”.
[21] Judgment of 5 February 1963, van Gend & Loos, Case C-26/62, EU:C:1963:1.
[22] A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), Joined Cases C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, ¶¶ 56-57.
[23] Id. 176. See also Achmea, Case C‑284/16, EU:C:2018:158, ¶ 37, and XC and Others, Case C‑234/17, EU:C:2018:853, ¶ 41
[24] Judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, para. 58, of 5 November 2019, Commission v Poland (Independence of ordinary courts), C-192/18, EU:C:2019:924, para. 106; 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, paras 70 and 71; 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, para. 45; of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C-354/20 PPU et C-412/20 PPU, EU:C:2020:1033, para. 39; of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C-487/19, EU:C:2021:798, para. 108, and of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C-748/19 to C-754/19, EU:C:2021:931, para. 66.
[25] Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117.
[26] See Article 19(1) TEU and Judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, point 102.
[27] Judgments of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 233, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, para. 265.
[28] LM v. Minister for Justice and Equality (Deficiencies in the system of justice), EU:C:2018:586, ¶ 50 and the case law cited. See also Commission v. Poland (Independence of the Supreme Court), EU:C:2019:531, ¶ 47, and Commission v. Poland (Independence of ordinary courts), EU:C:2019:924, ¶ 98.
[29] See Article 51(1) of the Charter.
[30] Associação Sindical dos Juízes Portugueses, EU:C:2018:117, ¶ 29, and A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), EU:C:2019:982, ¶ 82 and the case law cited.
[31] Lenaerts, The Two Dimensions of Judicial Independence in the EU Legal Order, supra, at 346.
[32] A.B. and Others (Appointment of judges to the Supreme Court – Actions), EU:C:2021:153, ¶¶ 87-88. Repubblika, EU:C:2021:311, ¶ 41.
[33] For example, in A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), ¶ 79, the Court of Justice applied Article 47 of the Charter since the applicants in the main proceedings, who were two judges of the Polish Supreme Court, ‘relied, inter alia, on infringements to their detriment of the prohibition of discrimination in employment on the ground of age, which is provided for by Directive 2000/78’. See, in the same way, Commission v. Hungary, Case C 286/12, EU:C:2012:687.
[34] See, for example, Associação Sindical dos Juízes Portugueses, EU:C:2018:117.
[35] See, in this regard, Lenaerts, The Two Dimensions of Judicial Independence in the EU Legal Order, supra. In Repubblika, EU:C:2021:311, ¶ 52, the Court of Justice explicitly referred to those two dimensions. It held that ‘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’.
[36] Prechal, supra, at 179.
[37] W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), EU:C:2021:798, ¶ 122.
[38] Both the Court of Justice and the ECtHR have ruled that the right to an independent judge or tribunal ‘established by the law’ – as provided for by Articles 6 ECHR and 47 of the Charter – ‘encompasses, by its very nature, the process of appointing judges’. ‘[An] irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter’. See Simpson v. Council and HG v. Commission, EU:C:2020:232, ¶¶ 73 – 75. As to the ECtHR, see Guðmundur Andri Ástráðsson v. Iceland [Grand Chamber], app. no. 26374/18, CE:ECHR:2020:1201JUD002637418, ¶ 98.
[39] See, e.g., Commission v Poland (Disciplinary regime for judges), Case C‑791/19, EU:C:2021:596.
[40] Prokuratura Rejonowa w Mińsku Mazowieckim and Others, EU:C:2021:931.
[41] W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), EU:C:2021:798.
[42] A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), ¶ 143, and Repubblika, EU:2021: EU:C:2021:311, ¶ 45.
[43] A.B. and Others (Appointment of judges to the Supreme Court – Actions), EU:C:2021:153, ¶ 146.
[44] Judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, point 95 and case-law cited.
[45] Judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, point 94 and case-law cited.
[46] Judgment in A.B. and Others (Appointment of judges to the Supreme Court — Actions), Case C-824/18, cited above.
[47] Ibid., paragraph 129.
[48] Judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, EU:C:2021:311, para 69.
[49] Judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, para. 152.
[50] Les Verts v. Parliament, Case 294/83, EU:C:1986:166.
[51] Hungary v. Parliament and Council, EU:C:2022:97, ¶ 159, and Poland v. Parliament and Council, EU:C:2022:98, ¶ 196. See Rossi, supra, at 655, and von Bogdandy, supra, at 84.
[52] See Commission v. Poland (Independence of the Supreme Court), EU:C:2019:531, ¶¶ 55-59, and Commission v. Poland (Independence of ordinary courts), EU:C:2019:924, ¶¶ 104-107.
[53] Miasto Łowicz and Prokurator Generalny, EU:C:2020:234, ¶ 47.
[54] Id. See also Repubblika, EU:2021: EU:C:2021:311, ¶ 48.
[55] Miasto Łowicz and Prokurator Generalny, EU: C:2020:234, ¶ 48.
[56] Associação Sindical dos Juízes Portugueses, EU:C:2018:117, ¶ 12. See, in the same way, Escribano Vindel, C‑49/18, EU:C:2019:106.
[57] A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), EU:C:2019:982, ¶¶ 79 to 81.
[58] Id., ¶166.
[59] Id., ¶¶168 and 169.
[60] Judgment of 29 March 2022, Getin Noble Bank, C-132/20, EU:C:2022:235.
[61] See, e.g, Elchinov, Case C‑173/09, EU:C:2010:581, ¶ 26, and XC and Others, Case C‑234/17, EU:C:2018:853, ¶ 42 and the case law cited.
[62] Miasto Łowicz and Prokurator Generalny, EU:C:2020:234, ¶ 59. See also IS (Illegality of the order for reference), EU:C:2021:949, ¶ 76.
[63] Opinion of Advocate General Tanchev in Commission v. Poland (Disciplinary Regime for Judges), EU:C:2021:366, ¶ 132.
[64] RS (Effects of the decisions of a constitutional court), EU:C:2022:99, ¶ 78.
[65] Id., ¶ 88.
[66] A.B. and Others (Appointment of judges to the Supreme Court – Actions), EU:C:2021:153, ¶¶ 95 and 106.
[67] Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, para. 59.
[68] Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, para. 61.
[69] Ibid., paras 74 to 77.
[70] In that regard, some scholars have also criticized the need for a concrete examination (the second step). See, in this regard, L. Pech and D. Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice (Stockholm, Swedish Institute for European Policy Studies, 2021), at165 et seq, who observe that ‘[it] is just not good enough to force the surrender of suspects to a country on the ground that one can still potentially secure a fair trial on a few scattered islands of independence in an ocean increasingly polluted by authoritarianism’. However, see K. Lenaerts & J.A. Gutiérrez-Fons, ‘The Court of Justice of the European Union and Fundamental Rights in the field of criminal law’, in M. Bergström, T. Quintel and V. Mitsilegas (eds), Research Handbook on EU Criminal Law, 2nd ed. (Cheltenham, Elgar Publishing, forthcoming), who argue that ‘the two-step examination protects judges who strive to act independently despite having to operate in a justice system that is subjected to constant attacks from the legislature and/or the executive. Those judges cannot be left to stand alone, since they have proven their loyalty to the rule of law and their trustworthiness. Metaphorically speaking, we believe that the two-step examination enables the executing judicial authorities to “separate the wheat from the chaff” on a case-by-case basis’.
[71] Judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority), C-354/20 PPU et C-412/20 PPU, EU:C:2020:1033, paras 62 – 63.
[72] Judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C-562/21 PPU and C-563/21 PPU, EU:C:2022:100, paras 60 and 61.
[73] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, [2020] OJ L 433 I/1.
[74] Article 1 of Regulation 2020/2092.
[75] Article 4(1) of Regulation 2020/2092.
[76] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, para. 113, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, para. 127.
[77] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, para. 123, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, para. 141.
[78] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, para. 127, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, para. 145.
[79] Judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, para. 126 and the case-law cited.
[80] Ibid.
[81] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, para. 129, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, para. 147.
[82] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, para. 131, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, para. 149.
[83] See Article 3 of Regulation 2020/2092.
[84] See Article 4(1) of Regulation 2020/2092.
[85] See Article 4(2) of Regulation 2020/2092.
[86] Judgments of 16 February 2022, Hungary v Parliament and Council, C-156/21, EU:C:2022:97, paras 144 and 145, and Poland v Parliament and Council, C-157/21, EU:C:2022:98, paras 162 and 163.
[87] Judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008.
[88] Judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, para. 52. See also paras 56 and 57, which read: “[…]
[89] Judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, paras. 56 and 57.
