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  • Writer's pictureJosh Thompson

Case C-132/20 - BN, DM, EN v Getin Noble Bank SA – the need for ongoingdialogue

Updated: Apr 19, 2022

The next installment in the unfolding rule of law crisis in Poland has come before the ECJ by way of BN, DM, EN v Getin Noble Bank SA. Much like in the Court’s recent judgment in Commission v Poland, the referral in BN, DM, EN relates to judicial independence, a key concept relevant to the rule of law. While Commission v Poland concerned judicial appointments specifically, the referral in BN, DM, EN raises a unique twist by way of concerns raised by the Ombudsman and the Commission in relation to the admissibility of the referral in question. While the final judgment is pending, Advocate General Bobek has published his opinion on the referral wherein he addresses the concerns raised by the Ombudsman and the Commission and in doing so he explores the legal construction of judicial independence within the context of admissibility under Article 267TEU.


In his opinion, AG Bobek supports his recommendations on admissibility through reference to the concept of ongoingdialogue.(1)The importance of judicial dialogue is evident through Article 267TEU as the procedure does not operate as an appeal mechanism but rather offers a procedure through which national courts can acquire authoritative rulings regarding the interpretation or validity of EU law.(2) The preliminary reference procedure is predicated on the sincere cooperation of the Member States as ultimately the final decision regarding the application of EU law rests with the referring court.(3) Article 267TEU is an important mechanism that assists in the maintaining of the rule of law in the EU legal order.

Factual Background


The facts of the referral are linear in nature and offers an illustration as to the importance for the rule of law in every day commercial activity and the need for certainty and functional courts. The genesis of the referral lies in a set of proceedings issued by a bank against a number of debtors in relation to outstanding debt facilities. The regional court sided with the debtors and the bank sought to appeal this decision.(4)


Per Polish court procedure when an appeal is made from a lower court the Court of Appeal will sit as a single judge whom will review the merits of the appeal application and in light of the facts raised the Polish Court of Appeal sitting in Wroclaw referred a number of carefully worded questions to the ECJ wherein the ECJ was invited to verify the judicial independence of the sitting judges.


While the referral itself concerns the nature of judicial independence vis a vis the earlier decision of the regional national court, the subject matter of the appeal, it is the referring court itself that the Ombudsman and the Commission raised a number of concerns regarding judicial independence. The Ombudsman's concerns suggested that the referring court itself lacked sufficient judicial independence to satisfy the admissibility requirements outlined under Article 267TEU.(5) The Commission’s concerns further referenced the “court or tribunal” reference within Article 267TEU but instead directed its concerns not to the admissibility of the referring body but the specific appointment of the referring judge.(6)

AG Bobek approaches these concerns in a formulaic manner – firstly, an examination of the term “court or tribunal” within the meaning of Article 267TEU and secondly, why the referring court should be positively considered a “court or tribunal” for the purposes of admissibility.

Admissibility under Article 267TEU – a multi-layered cake


Article 267TEU makes reference to a “court or tribunal”. A useful starting point is Broeckmeulen v Huisarts Registratie Commissie wherein the traditional definition of the term “court of tribunal” was outlined.(8) Per Broeckmeulen, where a body operates with the consent and cooperation of the public authorities and delivers final decisions following an adversarial procedure this will satisfy the meaning of “court or tribunal” per Article 267TEU. In Dorsch Consult the admissibility of the referring court was formulated as follows; the body must be established by law, it must be permanent, the body must possess compulsory jurisdiction, its procedures must be inter partes, the body in question must apply the rule of law and the body must be indepdent.(9) The above mentioned admissibility requirements concern questions of specific functionality within the context of a Member States institutional order as opposed to circumstantial definition of the admissibility requirement.


AG Bobek continues the traditional of functional observations over circumstantial observations in his opinion and in doing so singles out two specific criterion which he astutely identifies as problematic within the present case; a court or tribunal established by law and the judicial independence requirements.(10) In addressing admissibility AG Bobek relates the term “established by law” to the concept of “legal origin”. It is the legal origin of the referring body that AG Bobek opines should be the primary consideration when assessing the admissibility of a referring body. Positive findings of the “established by law” requirement should rest upon the functional nature of the body and any relevant national law.(11)Such a position is in line with the above functional definition as outlined above.


The rule of law and judicial independence


This notion of functionality over contextualization continues throughout AG Bobek’s opinion and it is notable in his position regarding the second requirement for admissibility – judicial independence.(12) The referring court queries the correct approach to be taken to judicial independence and questions whether independence should be assessed in abstracto or in concreto. AG Bobek suggests that the two approaches are not mutually exclusive and refers to A. K and Others in this regard. Per AG Bobek, considerations of judicial independence entails an analysis of both institutional elements and case-specific factors.(13)


In his formulation of judicial independence AG Bobek ties the concept of independence under Article 267TEU with the definition of independence under Article 19TEU and Article 47 ECHR.(14) As I have already outlined above, Article 267TEU relates to functional considerations concerning the institutional context specific to the referring body. By referencing Article 19TEU and Article 47 ECHR, AG Bobek is bringing informative contextual considerations into the concept of judicial independence however in doing so AG Bobek maintains that the primary approach of the ECJ should continue to be primary functional. The rational behind AG Bobek’s approach is logical and he summarizes his recommendations using the phrase “no motives, means and opportunity”.(15)


When assessing judicial independence in concreto a causal link must be established between the judicial appointment and the potential outcome of the specific case. The in concreto consideration is an important threshold as negative findings in this regard will invalidate in abstracto observations and may prove fatal to the admissibility of a referral. Review Simpson and HG is a useful source of guidance in this regard. Simpson concerned the appointment by the Council of a member to the European Union Civil Service Tribunal. Here, the Court held that in concreto irregularities regarding judicial appointment must be as such that they would give rise to reasonable doubt in the minds of individuals.(16) The phrase” reasonable doubt” implies some level of public trust vis a vis the decision of the court. In Commission v Poland a similar position was adopted in relation to judicial independence and the Court detailed the obligation of a court or tribunal in a democratic society to inspire trust in subjects of the law.(17)


Thus, concerning the independence component of admissibility only sufficiently serious breaches capable of raising ” reasonable doubts” would be capable of grounding in concreto findings of a lack of judicial independence. In Commission v Poland (Independence of the Supreme Court), the circumstantial evidence supported such a finding as the national provisions in question were implemented with a view of excluding a specific group of judges.(18) Returning to the referral at hand, AG Bobek takes the view that no such breaches are present in the facts at hand.(19) The opinion of AG Bobek is not without merit and it is at this juncture that the concept of ongoingdialogue is raised.


Judicial dialogue and the rule of law – a critical analysis


A hesitant approach is taken by AG Bobek in relation to admissibility and the Advocate General is careful not to expand upon the current precedent of the ECJ in so far as suggesting that the established formula should not be broadened to include assertations of individual appointments. (20) It is clear that the Advocate General firmly supports the continual use of functional considerations over contextual considerations. The suggestion that the ECJ should continue to implement a limited functional view of admissibility within the context of Article 267TEU by AG Bobek is supported by notable judgments of the ECJ such as Nordsee(21) and AB and Others.(22) The basis of AG Bobek’s position is one of rationality – the ECJ is ill equipped to deal with considerations regarding specific judicial appointments. In addition, AG Bobek notes that there are circumstances wherein an institution may be comprised and as such could no longer be considered a ”court or tribunal” for the purposes of Article 267TEU in a contextual sense. In such circumstances a court would be cut off from engaging in judicial dialogue with the ECJ.(23)


AG Bobek’s strong support of the functional approach addresses a core shortcoming present in the Article 267TEU procedure – where sincere cooperation is absent this may impede the operation of the procedure and undermine the rule of law both within the EU legal order and within national institutions. Two distinct issues arise from this outcome – firstly, a restriction of the use of the preliminary reference procedure will negatively affect the uniformity of EU law and secondly, where a national court can no longer engage in ongoing dialogue with the ECJ this will impede the national court’s access to guidance in relation to challenging issues arising from democratic crises.


Article 267TEU does not operate as an appeal mechanism but rather offers a procedure through which national courts can acquire authoritative rulings regarding the interpretation or validity of EU law. The preliminary reference procedure is predicated on the sincere cooperation of the Member States as ultimately the final decision regarding the application of EU law rests with the referring court.(24) Article 267TEU is an important mechanism that assists to maintain the EU legal order and subsequently the rule of law within the EU. Concerns regarding the admissibility of referrals by referring courts from Member States experience a rule of law crisis would limit a domestic courts ability to address rule of law concerns within its own jurisdiction through the use of dialogue with the ECJ facilitate through the use of the preliminary referral procedure.(25)


The position adopted by AG Bobek is one of necessity in light of the many recent rule of law crises observable in several Member States and it is for this reason that I agree with AG Bobek’s suggestions that the Dorsch criteria should continue to be the applicable authority concerning questions of admissibility.(26) A functional assessment of admissibility should continue to be maintained by the ECJ in order to secure the applicability of the preliminary reference procedure and to secure the ability of national courts to engage in dialogue with the ECJ. It is important to note that the preliminary reference procedure has historically been the arena of significant judicial activity. To adopt a position wherein the admissibility of refences by courts in Member States experiencing a rule of law crisis would be precluded would be terminal and it is important that access to the ECJ is maintained so that national courts are supported in addressing any rule of law crisis on a grassroots level in a Member State.

Closing remarks and the need for ongoingdialogue


It is the concept of ongoingdialoue as noted by AG Bobek in his opinion that I believe is of the upmost importance and a concept of acute relevance to the developing body of EU law arising from the rule of crises present throughout the EU. The formulation of admissibility under Article 267TEU as a functional assessment by AG Bobek ensures that where a referring court has been subjected to some form of control or interference such a court can still rely upon the ability to engage in judicial dialogue. Within the context of a national judicial system access to an independent and impartial court in even a referential capacity is essential to the rule of law. The same is applicable when considering the concept of ongoingdialogue between the ECJ and referring courts. In its 2020 Rule of Law Report, the Commission highlighted this specific point as an area of vulnerability within the EU legal order.(27) It is on this basis that I would agree with the recommendations raised by AG Bobek in his opinion and I am hopeful that the ECJ will consider the concept of ongoingdialogue when it delivers its judgment in BN, DM, EN.


Footnotes:

  1. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 65 to 70

  2. Joined Cases C‑748/19 to C‑754/19, EU:C:2021:40, Opinion of AG Bobek, para 154

  3. For further reading see C-206/01 Arsenal Football Club v Reed andC-453-00 Kuhne & heitz v ProductschapvoorPluimveeen Eiren

  4. For further reading regarding this topic see Judgment of 20 June 2017, K 5/17, OTK-A 2017

  5. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 27

  6. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 46

  7. Full wording of Article 267 TEU (ex Article 234 TEC) : - he Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

  8. C-246/80 Broeckmeulen v HuisartsRegistratieCommissie,

  9. C-54/96 Dorsch Consult, para 23

  10. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 50 and para 54

  11. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 57

  12. For a broader discussion on the importance of judicial independence C-64/16 Associação Sindical dos Juízes Portugueses

  13. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 98 - 102

  14. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 102

  15. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 139

  16. C-542/18 Review Simpson and HG v Council and Commission, para 75 ot 82

  17. C-824/18 Commission v Poland, para 150

  18. C-619/18 Commission v Poland (indepdeenance of the Supreme Court), para 82 to 85

  19. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 141

  20. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 58 and 59

  21. Judgment of 23 March 1982 (102/81, EU:C:1982:107, para 7 to 16

  22. C-585/18, CC-624/18 and C625/18, A.K. and others, para 70

  23. C-132/20 - BN, DM, EN v Getin Noble Bank S.A., Opinion of AG Bobek, para 78

  24. For further reading see C-206/01 Arsenal Football Club v Reed and C-453-00 Kuhne & heitz v ProductschapvoorPluimveeen Eiren

  25. Joined Cases C‑748/19 to C‑754/19, EU:C:2021:40, Opinion of AG Bobek, para 154

  26. For further reading on this specific point see COM(2020) 580 final, 2020 Rule of Law Report The rule of law situation in the European Union, pages 10 -11

  27. COM(2020) 580 final, 2020 Rule of Law Report The rule of law situation in the European Union, page 7

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