Some 130 guests from the realms of science, business and civil society came to hear Kokott speak in her capacity as public rapporteur within the EU judiciary on current cases which reflect the conflict-prone state of Europe’s rule of law caught between the European and national levels. “The ECJ addresses controversial, highly political issues,” according to the Advocate General who supports the ECJ by developing and justifying decision proposals, known as opinions, which she then uses to prepare draft judgements. “To the general public, our opinions are first indicators of what the ECJ’s decisions may ultimately look like,” she explained.
In her lecture at ZEW, which was part of the Leibniz ScienceCampus MannheimTaxation, she focused on recent and highly delicate infringement procedures. “For a long time, the rule of law as such was taken for granted in Europe,” Kokott said. Her explanations made it clear, however, that it is by no means a given. Concerns about the rule of law had been raised in connection with Hungary much earlier than in connection with Poland, she said.
The proceedings against Hungary concerned the early retirement of judges and prosecutors. Hungary’s plan was to reduce the retirement age for civil servants from 70 to 62 years, only to subsequently raise it to 65 years in a step-wise process. This would have single-handedly forced a large number of judges and prosecutors out of office, explained Kokott, who worked on the case in her capacity as ECJ Advocate General. “The forced retirement of judges is incompatible with the independence of the judicial system,” she found. Age limits for civil servants in senior positions of this kind are justified under specific conditions only. In this case, the ban on age discrimination applies – just like the Polish case.
The quality of judicial organisation under the microscope
In response to several reforms of the Polish judiciary, the ECJ had eventually ruled on the return of judges from early retirement. Kokott explained that Poland had defended its move by citing allegedly similar practices from other EU Member States. Yet this was hardly a valid argument where violations against the rules and regulations of EU contracts are concerned, she said.
The Polish and Hungarian examples illustrate “that the ECJ increasingly addresses questions concerning the quality of judicial organisation in the Member States.” In turn, it was the rule of law that served as a basis for such proceedings. Yet Kokott also stressed that, “while doubts about the state of the rule of law in these countries fit in with our preconceptions, this does not mean that other EU Member States are above and beyond such criticism.” Some Member States which so far had gone under the radar of rule of law-related scrutiny were now moving into focus. For example, cases are also pending in Germany and Portugal, which, in essence, concern the independence of the respective countries’ national courts.
“We need to continue the game with all crucial players”
The proceedings against Portugal concerned the remuneration of judges, which had been cut in the course of the financial crisis and the subsequent depression of 2007/2008. In Germany, meanwhile, the legal status of church employers was “a particularly tricky subject between the ECJ and the Federal Constitutional Court.” Besides the unresolved disputes around a Catholic senior medical doctor’s remarriage and wearing a headscarf at work, Kokott considered a recent constitutional complaint by a church employer to be the most poignant illustration thereof. The case of a non-denominational woman, whose application for a job with a church-related institution was initially rejected, is now a matter for the Federal Constitutional Court to decide.
According to Kokott, the increased focus of both her own activities and those of the EU’s supreme judicial body on matters relating to the rule of law is a relatively recent development. Since the rule of law, basic rights and democracy are so intimately connected, none of the pillars could be a matter of national sovereignty exclusively. “We need to continue the game with all crucial players,” the Advocate General urged. These players include both legal and executive powers, as was revealed during the subsequent discussion moderated by ZEW President Professor Achim Wambach.
Wambach and Kokott had a lively debate on the procedures for the appointment of judges in democratic states as well as the fact that the ECJ’s function and role goes beyond the mere application of EU legislation, reaching the bounds of normative action. The questions from the audience took a similar turn: Does the ECJ advocate the principle of subsidiarity in Europe, particularly in light of the current monetary policy? Does the ECJ’s principle of unanimous decision-making lead to deadlock situations in practice? What is the relationship between the Union’s Charter of Fundamental Rights and the European Convention on Human Rights? If the discussion is anything to go by, the issues are certain to remain hotly debated.
The lecture series “First-Hand Information on Economic Policy” is kindly supported by the ZEW Sponsors’ Association for Science and Practice.