A right for judges to challenge legislation? Strasbourg’s untenable ambiguity

By dr. Mathieu Leloup

It is no secret that the protection of the independence of domestic judges has been high on the judicial agenda of the supranational courts in the recent past. Over the course of the last few years, issues related to judicial independence have been at the forefront of the case law of both the Strasbourg and Luxembourg Court, with notable jurisprudential developments taking place hand over fist. Most of those developments have already been discussed at length in this or other outlets. Yet, in the slipstream of those developments another important evolution seems to have taken shape, one which has so far not been picked up on. In its most recent judgments, the Strasbourg Court seems to interpret Article 6 (1) ECHR as implicitly including a right for judges to challenge parliamentary legislation that affects their status or career. Yet, as discussed below, such a point of view would contradict decades of well-established case law. To date, the Court has never grappled with this potential contradiction. In fact, it has not even acknowledged the implicit change in its case law, leaving it to scholars and separate opinions to point out such consequences of the recent judgments.

This short post aims to point out this notable strand of jurisprudence to the broader legal audience and to highlight the untenable ambiguity that is currently underlying the Court’s case law. The main claim is that the Court cannot maintain this opaque position and should – by way of a Grand Chamber judgment – provide some clarity on the matter.

Decades of consistent case law…

For decades now, the Court has repeated the basic point of view that Article 6 ECHR does not guarantee a right of access to a court with the power to invalidate or override a law enacted by the legislature. In the same sense, it has repeated time and again that Article 13 ECHR does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic norms. While it is hard to pin down the exact moment in which this point of view appeared in the case law in substance, the above phrases were already used in the 1991 Commission decision of Ruiz Mateos v Spain (regarding Article 6), and in the 1986 Court judgment of James v the United Kingdom (regarding Article 13). Since then, the Court has repeated this refrain regularly, with STEAG GMBH (April 2023) and Buzoianu (November 2021) as recent examples.

… implicitly amended…

The Court has thus never formally stepped away from those principles in its case law, and has even reiterated them recently. Nevertheless, it seems to have carved out an important exception in recent judgments for one specific class of applicants: domestic judges. In a number of cases in which domestic judges complained about a violation of their right of access to a court because of an impossibility to challenge legislative amendments that interfered with their status or career, the Court has regularly found a violation of Article 6 (1) ECHR. Examples of such cases are Gumenyuk, Żurek, Grzęda, and – recently – Kartal. In none of those judgments does the Court explicitly state that domestic judges do have a right under the Convention to challenge legislation. That conclusion follows implicitly yet unavoidably from the fact that the Court concluded to a violation of the right of access to a court in those cases.

In one judgment, the Court did take a more explicit position. In Pajak, it held that ‘In view of the development of its case-law in this area, which is also based on a number of international texts, the Court considers that access to a court must be guaranteed, as a general principle, when the cessation of the functions of a judge or that of a mandate (of president of the Supreme Court, president of a court of appeal or vice-president of a regional court and member of the NCJ) without cessation of the functions of a judge is at stake, whether this cessation occurs for disciplinary reasons or results from the adoption of new rules (relating to the lowering of the retirement age, the implementation of the NCJ reform or the modification of the powers of court presidents and vice-presidents).’

In that last excerpt, the Court more clearly indicates that judges should, as a general principle, have access to a court to challenge measures that bring an end to their function as a judge or a related position as court (vice) president, even if that cessation originates in formal legislation. In other words, they have a right to challenge such legislation.

… without clear justification

In an earlier article, David Kosař and myself already indicated, on the basis of the judgments Gumenyuk, Żurek and Grzęda, that the Court was seemingly moving towards the recognition of a subjective right for judges to challenge legislation. Especially with the Court being much more explicit in the subsequent judgment of Pajak, it is striking that in none of those judgments (with Grzęda even being issued by the Grand Chamber), the Court grappled with the thorny question of how that point of view contradicts the abovementioned decades of established case law, something that was also pointed out by Judge Koskelo in her concurring opinion in the Kartal judgment.

The inevitable consequence is then that the recent jurisprudence carves out a significant exception to what has been a brightline rule for so long, but without explaining or even acknowledging this discrepancy. As a logical consequence, the Court has also never argued or done any of the conceptual legwork to justify why domestic judges should enjoy such a right, while others do not. In this respect, Judges Wojtyczek and Paczolay argue in their dissenting opinion to the Pajak judgment that such a right should be open to all who want to assert their civil rights against interferences by the legislative branch.

Where to go from here?

There seem to be several possibilities for the Court to go forward. The Court could first of all try and provide normative arguments for its current position and argue why judges should receive such a special protection. Second, it could reverse its case law and go back to the position that the Convention does not guarantee a right of access to a court with the power to invalidate or override a law enacted by the legislature. Third, it could generalise the current exception for judges and explicitly overrule its previous position, thereby offering everyone a right to challenge legislation.

Which of those three options is conceptually the most convincing in light of the current European constitutional realities, and what would be the pros and cons of each approach, deserves a more serious discussion than can be provided in a short blogpost. What is argued here, however, is that the current ambiguous position of the Court is untenable. It should address this issue explicitly, preferably in its Grand Chamber formation, to take a clear and reasoned position for any future cases.