In the framework of the research project AICO/2021/099 of the GVA and PID2021-126765NB-100 of the Spanish Ministry of Science, on March 7 the Faculty of Law of the University CEU Cardenal Herrera received Calogero Pizzolo, Professor of Integration Law at the University of Buenos Aires, Jean Monnet Chair at the University and director of the Center of Excellence Regional Integration and Human Rights.
Professor Pizzolo, gave a talk to the students of 1st year of Law about the convergences and different approaches that the Court of Justice of the European Union and the European Court of Human Rights have in the face of attacks against the Rule of Law in several countries of the Union.
Professor Pizzolo began his presentation by explaining what is meant by the separation of powers and stating that, understanding the separation of powers as a balance and complementarity between the executive, legislative and judicial powers, the latter (the judiciary) is the weakest of the three, since it does not legislate. Nevertheless, its importance is notable since it is the highest interpreter of the norms.
There is currently a growing colonization of the judiciary in Europe, especially as a result of the deterioration of the rule of law on the European continent. But how has the EU ended up being the guarantor of the rule of law? In this regard, it is important to mention Article 2 TEU, which states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. This article represents the identity of the EU. Another question is to determine how we can transform the values enunciated in Art. 2 into principles and, in turn, into rules.
Prof. Pizzolo focuses his presentation on judicial independence as one of the main attacks on the rule of law and speaks specifically about the cases of Hungary, Poland and Romania.
When we talk about judicial independence, it is of vital importance to deal with concepts such as the European jurisdictional triangle (formed by the European Court of Human Rights and the Court of Justice of the EU, which in turn interact with the Constitutional Courts of the respective Member States) as well as the concept of “multilevel protection system”, understood as that system in which two different types of rights converge, thus generating a double prejudiciality, and which can only function through a common dialogue.
We must bear in mind that the economic process of the EU ends up becoming a point of convergence of rights, and for this very reason, the EU is not only an economic community, but also a community of law. States attribute competences to the EU, but this becomes a problem when it comes to rights.
With regard to judicial independence and how it has been interpreted within the EU, it should be noted that there is a duality between the CJEU, a European institution whose purpose is to interpret EU law (Treaties, Directives, Regulations…) as well as the Charter of Fundamental Rights (FCR), and the ECHR, a body belonging to the Council of Europe which decides on the basis of the ECHR, and which exercises external control over the constitutional parameters of the States party to the Convention. The UBA professor describes both courts as “cloned” and designed to interpret very similar texts, but which require coordination and boldness that are difficult to find.
Dr. Pizzolo then explains the points of convergence between Strasbourg and Luxembourg on judicial independence. In this regard, the Professor states that the CJEU interprets the principle of judicial independence on the basis of Articles 19 TEU and 47 CDF, legally relying on the framework of the values set out in Art. 2 TEU. The ECtHR, on the other hand, would interpret this principle on the basis of Article 6 of its Convention, which contains the right to a fair trial, as well as to an independent and impartial Court.
The speaker affirms that these values are symmetrical in both systems and that both the jurisprudence of the CJEU and the ECtHR are in the same direction, favoring judicial dialogue and building dialogic consensus.
Finally, Professor Jean Monnet expressed the consensus that exists between both Courts in considering the principle of irremovability of judges and magistrates as a factor that has a transversal influence on the scope and content of judicial independence.
