RULE OF LAW IN EUROPE PERSPECTIVES FROM PRACTITIONERS AND ACADEMICS Paul Craig, Stanislas Adam, Nuria Diaz Abad, Lorenzo Salazar European Judicial Training Network 123, rue du Commerce B-1000 Brussels Phone: +32 2 280 22 42 Funded by the Justice Programme E-mail: [email protected] www.ejtn.eu of the European Union All the texts and materials included in this publication, Rule of Law in Europe. Perspectives from practitioners and academics, except where otherwise stated, are the exclusive Property of the European Judicial Training Network (EJTN). Absolutely no reproduction of the contents of the publication, in whole or in part, may be made without the express written permission of EJTN. Extracts of the publication may be reviewed, reproduced or translated for private study only. This excludes sale or any other use in conjunction with a commercial purpose. Any public legal use or reference to Rule of Law in Europe. Perspectives from practitioners and academics should be accompanied by an acknowledgment of EJTN as the source and by a mention of the author of the text referred to. This publication was produced with the fi nancial support of the European Union. Its contents are the sole responsibility of EJTN and do not necessarily refl ect the views of the European Union. ISBN number: 9789082810684 Funded by the Justice Programme of the European Union TABLE OF CONTENTS FOREWORD I BIOGRAPHIES III LIST OF ABBREVIATIONS IV CHAPTER 1 DEFINITION AND CONCEPTUALIZATION OF THE RULE OF LAW AND THE ROLE OF JUDICIAL INDEPENDENCE THEREIN BY PAUL CRAIG 1 CHAPTER 2 JUDICIAL INDEPENDENCE AS A FUNCTIONAL AND CONSTITUTIONAL INSTRUMENT FOR UPHOLDING THE RULE OF LAW IN THE EUROPEAN UNION BY STANISLAS ADAM 15 CHAPTER 3 JUDGES’, PRESIDENTS’ OF COURTS AND MEMBERS OF JUDICIAL COUNCILS PERSPECTIVE BY NURIA DIAZ ABAD 43 CHAPTER 4 PROSECUTORS’, HEADS AND MEMBERS OF PROSECUTORIAL HIGH COUNCIL’S PERSPECTIVE BY LORENZO SALAZAR 56 ANNEX 1 OVERVIEW OF THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION WITH RESPECT TO THE RULE OF LAW BY KOEN LENAERTS 70 ANNEX 2 RULE OF LAW IN EUROPE DEMANDS AND CHALLENGES FOR All the texts and materials included in this publication, Rule of Law in Europe. Perspectives from THE EUROPEAN JUDICIARY BY ANGELIKA NUßBERGER 80 practitioners and academics, except where otherwise stated, are the exclusive Property of the European Judicial Training Network (EJTN). Absolutely no reproduction of the contents of the publication, ANNEX 3 in whole or in part, may be made without the express written permission of EJTN. Extracts of the DEVELOPING THE EU RULE OF LAW POLICY BY EMMANUEL CRABIT 86 publication may be reviewed, reproduced or translated for private study only. This excludes sale or any other use in conjunction with a commercial purpose. Any public legal use or reference to Rule of Law in Europe. Perspectives from practitioners and academics should be accompanied by an acknowledgment of EJTN as the source and by a mention of the author of the text referred to. This publication was produced with the fi nancial support of the European Union. Its contents are the sole responsibility of EJTN and do not necessarily refl ect the views of the European Union. ISBN number: 9789082810684 Funded by the Justice Programme of the European Union FOREWORD It is with great pleasure that I introduce to you “Rule of Law in Europe. Perspectives from practi- tioners and academics”, produced by the European Judicial Training Network (EJTN) within the Pilot training project for justice professionals on key issues of fundamental rights and rule of law, implemented in 2018 - 2019 as part of the European Commission’s strategy for the effective implementation of the EU Charter of Fundamental Rights. Before explaining the aim of this publication, how it came about and its content, I wish to share some background information about the EJTN. The EJTN is the principal platform and promoter for the European judiciary’s training and exchange of knowledge. The EJTN represents the interests of over 120,000 European judges, prosecutors, judicial trainers and trainees across Europe. Formed in 2000, the EJTN’s fields of interest include EU, civil, criminal, commercial and administrative law, as well as EU fundamental rights, linguistics and societal issues training. The vision of the EJTN is to help foster a common legal and judicial European culture. Based on this mandate, the EJTN promotes training programmes with a genuine European dimension for members of the European judiciary. The EJTN Strategic Plan 2021-2027 stipulates that the rule of law, judicial independence and accountability are core competencies of judges and prosecutors, and that these aspects should be enhanced through training offered by the EJTN. The EU’s judicial systems are based on the principles of independence, impartiality, integrity, transparency, accountability and professionalism, all of which are key to the rule of law, upholding public trust and ensuring the effective delivery of justice. With this publication, the EJTN aims to increase judges and prosecutors’ knowledge about key elements of the rule of law and its practical implications in their professional and private lives. Awareness of the values and rules that judges and prosecutors need to adhere to in their work, such as integrity and competence, and EU law requirements and standards concerning independence, media communication strategies and appointment or disciplinary procedures, is essential to reinforcing the rule of law. The objectives of this publication are to strengthen a rule of law culture and increase knowledge of the rule of law standards deriving from several sources, such as EU law, the case-law of the Court of Justice of the European Union (CJEU), the case-law of the European Court of Human Rights (ECtHR), as well as the recommendations and standards of numerous European and international organisations such as the Council of Europe. The publication aims to enable practitioners from different countries to respond to the various challenges relating to the rule of law, and to be aware of how to implement mechanisms to prevent, correct and sanction abuse of the rule of law in practitioners’ daily activities. Also central to this publication is the sharing of experiences of European colleagues and increasing mutual understanding. I Rule of Law in Europe The publication consists of four articles authored by four prominent academics and practitioners: Paul Craig; Stanislas Adam; Nuria Diaz Abad; and Lorenzo Salazar. I am grateful to them for their contributions, and for the support provided to the EJTN in the implementation of actions in the field of the rule of law. Essential for the production of this publication was the information gathered from the seminars and webinars implemented by the said project, which was financed by the European Commission and implemented by the EJTN. The project was concluded with a final conference hosted by the Court of Justice of European Union on 13-14 May 2019, with three excellent keynote speeches addressed to the audience by CJEU President Koen Lenaerts, ECtHR First Vice-President Angelica Nussberger and Mr Emmanuel Crabit, EC Director, all annexed to this publication. In parallel to this publication, another output of this project was the publication of the Training Guide on the rule of law (RoL) for judges and prosecutors. EJTN’s acknowledgements go to the members of the EJTN experts’ group, which provided the scientific oversight for this project and its outputs. The group was coordinated by judge Nicolae Horatius Dumbrava (RO) and consisted of Professor Rafael Bustos Gisbert, Ms Karolina Rokicka (The Academy of European Law, ERA), judge Andrea Chis (RO, European Networks of Councils for the Judiciary), judge Zeller Edith (AT, Association of European Administrative Judges, AEAJ), Astrid Hopma (NL), prosecutor Lara Barberic (HR), Eva Pastrana (Council of Europe, CoE), Jana Gajdosova (European Union Agency for Fundamental Rights, FRA), prosecutor Sava Petrov (BG), judge Luca Perilli (IT), Claudia Weisbart (DE) and Wojciech Postulski (EJTN). The EJTN is also grateful to the European Commission’s representatives supporting the experts’ group. The project was managed by Mr Georgios Klis, EJTN Project Manager, to whom I owe much gratitude for his commitment and dedication to the project’s implementation. Finally, I wish to thank the Tipik Communication Agency S.A. for its efficient collaboration in the implementation of the project. I am sure this publication will become a source of daily advice and assistance, as well as inspiration for performing the everyday duties common to judges and prosecutors across Europe. Wojciech Postulski Judge and Secretary General of the European Judicial Training Network Perspectives from practitioners and academics II BIOGRAPHIES Paul Craig is an Emeritus Professor of law at St John’s College, Oxford. He teaches, researches and writes on Constitutional law, Administrative law, EU law and Comparative Administrative law. He is a Fellow of the British Academy, and an Honorary QC. He was the UK Alternate Member of the Venice Commission on Law and Democracy from 2011-2019, and was Delegate of Oxford University Press from 2009-2019. Stanislas Adam is a legal secretary at the Court of Justice of the European Union (Luxembourg), in the chambers of President Koen Lenaerts, and professor of European Union law at Ghent University, where he is in charge of the course ‘EU Competition Law’. After graduating in law at the University of Louvain (U.C.L.) and in European law at Ghent University, he was awarded a doctorate fellowship from the National Fund for Scientific Research – Flanders (FWO). He defended his doctoral thesis in 2010, under supervision of Professor Marc Maresceau (La procédure d’avis devant la Cour de justice de l’Union européenne, Bruylant 2011). He then obtained a Master of Laws at Harvard University (LL.M. ’11), where he benefitted from theFrank Boas Scholarship for Graduate Studies.