The independence of judges and the EU legal system

Article 7 TEU has the task of closing this circle in providing for the punitive decision of the Council against the state accused of non-compliance with the rule of law, in particular of violating the independence of the judiciary. The weakness of this resolution is the unanimous vote, excluding the state liable to be condemned. Like any unanimous vote, it is paralysed by the veto of a single state, which could be the friendly state of the offending one, itself in the odour of being sanctioned.

Regulation (EU) 2020/2092 fielded a robust reaction to the blocking of Article 7 with a remedy light in quorum, but heavy in procedure.

The system of the regulation works in the following way: if a state violates the principle of independence of judges, leading to an impairment of the European budget, it can be sanctioned by the Council by qualified majority with the loss of European funds. The rule is certainly more flexible than 7 TEU, because unanimity is no longer required, but it is more byzantine in its perfection as not every infringement of independence leads to the loss of money, but only those that jeopardise the proper exercise of the budget.

But its most critical point is in the final recipient of the punishment. The latter is not the State that loses the money promised by the EU, but the citizens who will not be able to enjoy it; that is, if students, they will not have access to the Erasmus programmes, and if researchers, to the Horizon programmes. Here the European legislator has been cross-eyed because it has transferred the sanction from the offender to the citizens, who are punished twice: deprived of an independent judge before whom they can assert their rights, and excluded from European economic benefits.

Add to this a further detriment, the flow of money that runs between giver and receiver is projected towards a final good, which can barely be glimpsed in the background: technological progress and environmental innovation. If this movement of economic magnitude is blocked, the state, already lagging behind other countries by not having independent judges, is condemned to definitive backwardness, because it will not be able to take part in the technical innovation and environmental revolution.

What to do?

We propose a substantive interpretation of Article 7 TEU: just as the vote of the state accused of violating the rule of law is excluded, so too should the sister state in the odour of violation be kept out of the vote so as to prevent them from scratching each other's backs and throwing European integration to the nettle.

It would be appropriate for the Meloni government to reflect on the European reasons for the indepedence of the judiciary, since its justice reform in separating careers irreversibly compromises the autonomy of the judiciary, because it assigns the super-prosecutor a position of illegitimate supremacy over the judging magistrate, because it creates a fourth power of the state, that of the prosecutors, because it divides the CSM, de-qualifying it by drawing lots, and because it creates a duplicate in the High Court, making the former useless. In short, it brings the hands of time back to the Albertine Statute.