The CJEU’s case Associação Sindical dos Juízes Portugueses became famous by converting an issue, that might have been seen as a purely domestic one regarding the remuneration of national judges, into a matter of “fields covered by Union Law”. The CJEU perceived national courts as fulfilling, in collaboration with the Court of Justice, a duty of jointly ensuring that, in the interpretation and application of the Treaties, the law is observed. Yet, the decision has also a substantive aspect. The CJEU stated minimum prerequisites for guaranteeing judges’ independence through their remuneration. The Court approved the measures of reducing judges’ remuneration, since they were not exclusively addressed to the judiciary but also to other public office holders, e.g. representatives of the legislature and the executive. Additionally, these measures were temporary in nature. The paper will examine to what extent supranational judges may contribute to domestic judiciary independence.
Through the rule-of-law crisis in Poland and Hungary, the issue of judicial independence has acquired a pan-European relevance. In such a context, the judgement in Associação Sindical dos Juízes Portugueses amounts to a very important piece of the puzzle, as it connects the issue of judicial independence to that of the amount of the judges’ salaries; or, more bluntly, it connects the issue of legitimacy to that of money. The inherent potential of the judgement has not gone unnoticed. It has indeed promoted a widespread debate in Italy, with decisions of the Italian Constitutional Court as well as preliminary references of Italian judges to the ECJ. My intervention has a twofold objective. On the one hand, it aims at mapping out this area of law and its most recent developments in Italy. On the other hand, it aims at better understanding whether we are witnessing the emergence of a common constitutional principle and, if so, what the normative core of this principle is.
The paper argues that the jurisprudence of the Brazilian Supreme Court on judicial independence can be divided into three periods: (i) the authoritarian period, of explicit attacks on the Court; (ii) the democratic period, of institutional adjustments of the Judiciary; (iii) the current period, of democratic ambiguity, in which threats to judicial independence are present, although they are not always evident. Examples of these threats are suggestions of reprisals or of open non-compliance of the Brazilian Court´s decisions by the other branches of government. In these situations, the Brazilian Court is faced with the dilemma of choosing between preserving its independence (and delivering a decision that could weaken its authority) or stepping back and bowing to avoid conflict. The work presents examples of such cases in the Brazilian jurisprudence and seeks to identify what Latin American Transformative Constitutionalism has to say on this issue.
In April, 2019, Mexico’s Supreme Court issued a ruling of abstract review, declaring measures reducing the remuneration of numerous public servants as unconstitutional. Those measures were the result of the contents of Article 127 of the Constitution, establishing that no public official shall earn more than the President. When the latter’s remuneration was substantially reduced as part of a series of austerity measures, cuts to other officials’ wages followed. Federal and local judges were amongst those affected. Even though an initial draft of the Supreme Court’s decision addressed how this hinged upon judicial independence, the Plenum rejected this analysis, rather focusing on formal grounds. This paper will address the general constitutional background of the Mexican Supreme Court’s decision. A brief comparison with the CJEU’s similar case of Associação Sindical dos Juízes Portugueses will allow for engaging in a transatlantic debate on the elements of judicial independence.