Abstract
The study focuses on the constitutional protection of judicial independence in the practice of the German Federal Constitutional Court and the Hungarian Constitutional Court in view of the evolving case-law of the Court of Justice of the European Union (CJEU). The study outlines the development and requirements laid down by the CJEU concerning judicial independence, followed by the comparative analysis of the scope of constitutional protection of judicial independence, focusing on selected aspects of judicial independence including the appointment of judges, the principle of irremovability, remuneration of judges, and then the principle of the prohibition of influence and adherence to law. The findings of this research confirm that despite the difference between the German and Hungarian legislative model, there are significant similarities between the scope of constitutional protection and the constitutional standards applied, and both constitutional courts provide for essential guarantees of judicial independence in line with the requirements and standards adopted by the CJEU.
Keywords: judicial independence, appointment of judges, irremovability, remuneration, Court of Justice of the European Union, effective judicial protection, rule of law, separation of powers, disciplinary measures, caseload, appearance of independence
I. Introduction
The principle of judicial independence is a core constitutional principle of national constitutional democracies, an esential guarantee of the rule of law and the principle of seperation of powers. Judicial independence is part of the constitutional tradition common to both the Member States and the European Union, governed by the procedural autonomy of the Member States pursuant to Article 4 (2) of the Treaty on European Union (TEU). Within the last decade the Court of Justice of the European Union (CJEU) has made the protection of judicial independence in the Member States one of its priorities, developing the common minimum standards of judicial independence, which it considers binding on the Member States as a matter of EU law.
In view of the developing EU standard, it is particularly important to explore and compare the different national constitutional practices of judicial independence. In this article I undertake to present the constitutional jurisprudence concerning judicial independence of the German Federal Constitutional Court (GFCC) and the Hungarian Constitutional Court (HCC) with special regard to the aspects that have been dealt with by the CJEU. The comparison of the two constitutional practice is primarily based on the fact that both the Fundamental Law of Hungary and the Basic Law of the Federal Republic of Germany (Grundgesetz) expressly provide for the protection of judicial independence, and the aspects of this principle covered by the practice of the GFCC and the HCC overlap. It is also important to point out, that the case-law of the GFCC has a prominent persuasive authority in the interpretation of fundamental rights, its case-law influences not only national constitutional courts such as the HCC but also international and supranational courts, like the European Court of Human Rights or the CJEU.
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.