A theory of justice? Securing the normative foundations of EU criminal law through an integrated approach to independence

• Published date: 01 November 2021
• Author: Leandro Mancano
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/eulj.12442

ORIGINAL ARTICLE

A theory of justice? Securing the normative

foundations of EU criminal law through an

integrated approach to independence

Leandro Mancano

*

Abstract

This paper raises the question as to whether a theory of justice exists in EU law. The focus is on

justice as a system. The assumption is that the independence of institutional actors involved in the

administration of criminal justice (mainly judges and prosecutors) vis-à-vis each other, and other

State powers, is key to that system achieving justice as a value. Against the benchmark of judicial

and prosecutorial independence developed in European law, the paper assesses the role for

independence in investigative, prosecutorial and adjudicating functions as it emerges from the

current state of EU criminal law. The conclusions reveal that the EU's idea of justice remains under-

developed, and that there is a need for systemic coherence to better protect the rule of law and

enhance the legitimacy of EU criminal law.

1|INTRODUCTION

The continuing observance of the European Union (EU)’s core values by its institutions and Member States is essen-

tial to its functioning.

1

Those values, enshrined in Article 2 of the Treaty on EU (TEU), are interconnected with each

other,

2

as well as with the constitutive components of the EU legal order.

3

Adherence to the EU values is a precondi-

tion to joining the EU

4

and must persist post-accession.

5

In a sense, the EU values are the blood vessels, with EU

*Senior Lecturer in EU Law, Edinburgh Law School. The author thanks the anonymous reviewers and the Editor in Chief for their invaluable comments. The

usual disclaimer applies.

1

Among many contributions on the role of values in EU law, see A. Jakab and D. Kochenov, The Enforcement of EU Law and Values: Ensuring Member States'

Compliance (Oxford University Press, 2017); A. Williams, The Ethos of Europe: Values, Law and Justice in the EU (Cambridge University Press, 2010).

2

See, for example, Case C-157/21 Republic of Poland v. European Parliament and Council of the European Union, EU:C:2022:98, para. 324.

3

Purely by way of example and with no claim of completeness, see Articles 3(1) TEU, 8, 10 and 19(1) TEU, Articles 80, 153(1)(i), and Article 157(1) TFEU. A

significant number of the provisions of the EU Charter of Fundamental Rights are direct expressions of Article 2 TEU.

4

See Article 49 TEU and Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 Euro Box Promotion and Others, EU:C:2021:1034, para.

162.

5

Case C-896/19 Repubblika v. Il-Prim Ministru, EU:C:2021:311, para. 64.

Received: 30 March 2022 Revised: 22 August 2022 Accepted: 5 September 2022

DOI: 10.1111/eulj.12442

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2021;27:477–501. wileyonlinelibrary.com/journal/eulj 477

and national law acting as the blood of the Union legal order: when the mechanisms to ensure that the values are

respected throughout the EU fail,

6

it is the whole legal organism that suffers the consequences.

The rule of law and judicial independence perfectly embody this dynamic. The precise contours of the rule of

law are notoriously elusive.

7

It is, however, undisputed that the rule of law is essential for the protection of other

fundamental values on which the Union is founded,

8

and that an impartial and independent judiciary lies at the core

thereof.

9

An expression of the rule of law and the principle of separation of powers,

10

judicial independence is a

precondition for effective judicial protection of EU law-based rights.

11

Essential as it is for any legal order based on

the rule of law, judicial independence must be preserved in conjunction with certain fundamental principles.

12

The

European Court of Human Rights (ECtHR or Strasbourg Court) finds that judicial independence co-exists with res

judicata and the irremovability of judges.

13

The EU Court of Justice (ECJ or the Court) has tacitly endorsed such a

view, by stating that the right to a tribunal previously established by law is likely to be infringed only in particularly

serious cases.

14

An integrated understanding of judicial independence is thus important because that requirement

inevitably interacts with different—broadly defined—values and interests. Furthermore, independence is an inher-

ently relational concept: it is gauged with reference to the absence of influence or pressure from other parties. To

assess judicial independence, both the interaction between different state powers and amongst the actors involved

in the administration of justice matter.

EU criminal law amplifies the themes running through the broader discussion about values and judicial indepen-

dence. Criminal law possesses a strong normative dimension: the set of values involved in the unfolding of its pro-

cesses is complex—and at times conflictual. The protection of interests through deterrence and retribution is to be

conducted and enforced via fair and certain rules and procedures. The rule of law backsliding in certain EU States

15

has, however, seriously undermined mutual trust between Member States and is posing existential challengesto the

Union, especially vis-à-vis the functioning of the area of freedom, security and justice (AFSJ).

16

Mutual trust under-

pins the decentralised system of EU cooperation in criminal matters (a fundamental component of the AFSJ), which

relies heavily on national procedural autonomy and sees Member States' laws and practices feed into judicial

cooperation. As mutual trust fundamentally rests on compliance with rule of law standards,

17

ensuring judicial inde-

6

‘Throughout’is here to be understood both geographically and in terms of policy areas.

7

See, among countless contributions and with specific regard to the EU, M.L. Fernandez Esteban, The Rule of Law in the European Constitution (Kluwer Law

International, 1999); L. Pech, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’

(2010) 6 EU Constitutional Law Review, 359; T. Konstadinides, The Rule of Law in the European Union: The Internal Dimension (Hart Publishing, 2017).

8

Reg 2020/2092, recital 6. See the very significant judgment in Case C-157/21 Republic of Poland v. European Parliament and Council of the European Union,

EU:C:2022:98.

9

Reg 2020/2092, Recital 3 and further references there cited.

10

Joined Cases C-585/18, C-624/18 and C-625/18 A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), EU:C:2019:982, para.

124.

11

Case C-216/18 PPU Minister for Justice and Equality (Deficiencies in the system of justice), EU:C:2018:586, para. 48. See P. Bárd, ‘In Courts We Trust, or

Should We? Judicial Independence as the Precondition for the Effectiveness of EU Law’(2022) 27 European Law Journal, 185.

12

S. Adam and P. van Elsuwege, ‘L'exigence d'indépendance du juge, paradigme de l'Union européenne comme union de droit’(2018) 9 Journal de Droit

Européen, 334.

13

ECtHR, Guðmundur Andri

´

Astráðsson v. Iceland, no. 26374/18, 1 December 2020, para. 240. For an analysis of the ECtHR's views on judicial

independence and the rule of law more broadly, see R. Spano, ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The

Strasbourg Court and the Independence of the Judiciary’, (2021) 26 European Law Journal,1.

14

Joined Cases C-542/18 RX-II and C-543/18 RX-II, Réexamen Simpson/Conseil et HG/Commission, EU:C:2020:232, paras. 79–83. See, for a comment on

the topic, M. Leloup, ‘The Appointment of Judges and the Right to a Tribunal Established by Law: The ECJ Tightens its Grip on Issues of Domestic Judicial

Organization’(2020) 57 Common Market Law Review, 1139.

15

Poland and Hungary, with the Romanian government showing a certain interest in joining this uncommendable club. See, for reference, Joined Cases C-

83/19 and Others, Asociat¸ia‘Forumul Judec

atorilor din România’and Others, EU:C:2021:393 and Joined Cases C-357/19, C-379/19, C-547/19, C-811/19

and C-840/19, Criminal proceedings against PM and Others, EU:C:2021:1034.

16

As per Article 3(2) TEU, the AFSJ is one of the fundamental objectives of the EU.

17

Case C-64/16, Associaç˜aoSindical dos Juízes Portugueses, EU:C:2018:117, para. 30. It is important to highlight that the rule of law is not understood here

–and it should not be –as a monolithic bloc. Some scholars treat it as a principle consisting of different components, as in L. Pech, ‘The Rule of Law as a

Well-Established and Well-Defined Principle of EU Law’, (2022) Hague Journal on the Rule Law. The multifaceted nature of the rule of law seems to be

endorsed by the EU legislature as well, as shown by Reg 2020/2092, recital 3. See also P. Popelier, G. Gentile and E. van Zimmeren, ‘Bridging the Gap

between Facts and Norms: Mutual Trust, the European Arrest Warrantand the Rule of Law in an Interdisciplinary Context’(2022) 27 European Law Journal,

167.

478 MANCANO