CONCLUSIONS OF THE OPINION: Scope of the EU’s sovereignty, competence and jurisdiction with reference to the Spanish state in application of the EU Directive 2019/1937 One of the first things that surprises us is the declaration of sovereignty over many issues made by the Union. This sovereignty is exercised by creating a single preliminary ruling procedure for the whole of Europe.
FIRST.- At no time, and nowhere, do the Treaties or the Charter make any mention of the National Constitutions. Therefore, they are not a source of Union law of any kind; moreover, according to the repeated case law of the European Court of Justice, national constitutions cannot be an obstacle to the full and direct application of Union law. Union law must be interpreted in accordance with EU rules and the judgments of the Court of Justice of the Union, and not apply rules and case law that do not conform to them.
SECOND.- Where the Treaties confer on the Union exclusive competence in a given field, or on the basis of shared competences which it legislates, only the Union may thereafter legislate and adopt legally binding acts, while the Member States as such may do so only if they are empowered by the Union or to implement Union acts.
This means an immediate and irreversible loss for the STATE, of any possibility of intervention in the area of competence in hand, resulting in a total, definitive and absolute application, even in the case of Community inactivity.
THIRD.- Article 19(1) TEU is an autonomous rule aimed at ensuring that national measures meet the requirements of effective judicial protection, including judicial independence, which complements Article 47 of the Charter (and possibly other provisions thereof)
FOURTH.- That the States have expressly renounced the concepts of territorial and personal jurisdiction, as well as that of hierarchy, and jurisdiction as expressed in COUNCIL REGULATION (EU) 2017/1939 of 12 October 2017, where a judicial body is created by the EU that:
• is not limited by the Borders,
• or wherever the offender is
• Hierarchically independent of the states
• Judges may not disallow the evidence presented and it must be available to them in their investigation requests
• Obligation of authorities and judges to communicate cases that may affect them.
FIFTH.- Impartiality is at odds with political appointment, whether directly or indirectly.
Moreover, the decisions of such a judge appointed through a political appointee would become null and void if they were connected with those who appointed him or her, whether personal, group or political interests.
SIXTH.- An analysis should be made of whether the objective conditions under which the body in question was set up, its characteristics and the ways in which its members have been appointed might give rise to legitimate doubts in the minds of the parties to the proceedings as to the body’s imperviousness to external elements, in particular to direct or indirect influences from the legislative and executive branches, and as to its neutrality regarding the interests in dispute, and may therefore give rise to a lack of appearance of independence or impartiality of that body which could undermine the confidence that the administration of justice must inspire in the persons subject to the proceedings in a democratic society. The same applies to trade unions, professional associations.
In other words, the mere public suspicion of a lack of independence or neutrality is enough to block and annul the decisions of such a body, judge or magistrate.
SEVENTH.- This suspicion alone has led to precautionary measures requested by the European Commission against Poland, and the European Court of Justice (ECJ) has decided to temporarily suspend the operation of an entire Chamber of the Polish Supreme Court, in particular that which has the power to hear at first instance, and also on appeal, disciplinary proceedings against Polish judges.
EIGHTH.- Consequently, the ECJ has established that the apex of the pyramid in all matters relating to the administration of justice and the judiciary in the European Union is this Court, and not the ad hoc bodies of each State.
NINTH.- Similarly, these principles, and forms of action, are extensible to any administrative sanctioning procedure, decision or resolution of another kind, which could be established by any administrative authority and the exception of the sixth conclusion, to any member who works or collaborates with the Judiciary.
TENTH.- The State must take special care to ensure that the judges elected are independent and impartial. It must restrict, if necessary and proportionate, any hint of partiality due to social or religious affectation.
The second subparagraph of Article 19(1) of the Treaty on European Union (TEU) requires Member States to provide for the necessary remedies to ensure effective judicial protection in the areas covered by Union law, in particular by guaranteeing the independence of the courts and tribunals entrusted with interpreting and applying Union law.
Like the Commission, the State, on its territory, will not fail to monitor closely developments in judicial independence in the Union and the values on which it is based.
