Many EU Member States Face Challenges in Enforcing Rulings from the European Court of Justice and the European Court of Human Rights

Numerous European Union member states struggle to implement the rulings of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), which is an organ of the Council of Europe. This issue has taken on a systemic character in Poland, Hungary, Romania, and Bulgaria.

Delayed justice is a denial of justice, as highlighted by a report prepared by non-governmental organizations European Implementation Network and Democracy Reporting International.

Challenges in Enforcing ECtHR Rulings

According to the report, as of January 1, 2024, there were 624 key rulings of the European Court of Human Rights awaiting implementation across the EU. The authors consider “key rulings” to be those that, for the first time, point to a systemic problem in a member state, and whose implementation requires comprehensive reform in a specific area.

44 percent of such key judgments issued by the ECtHR over the past decade against EU countries have not been implemented. In Bulgaria, Cyprus, Hungary, Italy, Malta, Poland, Romania, Slovakia, and Spain, the non-implementation rate exceeds 50 percent. Hungary holds the record, with 76 percent of key judgments remaining unimplemented.

Denmark, Estonia, Luxembourg, and Sweden are the best-performing countries in terms of enforcing rulings on systemic issues. However, these are small countries, from which few complaints are brought to the ECtHR.

The areas in which ECtHR rulings remain unenforced in the EU include:

• conditions of detention and the rights of detainees;
• police violence and the lack of effective prosecution of such cases;
• the rights of persons with mental disabilities;
• LGBT rights;
• asylum and migration issues;
• domestic and sexual violence;
• excessive length of civil, administrative, and criminal proceedings;
• problems related to fair trial, property rights, access to justice, and privacy protection.

Issues with Judicial Independence

Among EU countries, Poland has the highest number of key ECtHR judgments related to judicial independence and impartiality still awaiting implementation, with six key judgments pending as of January 1, 2024. These include:

• the Constitutional Tribunal (Xero Flor sp. z o.o. v. Poland),
• the lack of an appeal against the early termination of a judge’s term on the National Council of the Judiciary (Grzęda v. Poland),
• the lack of an appeal against the removal of a court president (Broda and Bojara v. Poland),
• flawed judicial appointments to the Supreme Court (the Reczkowicz group of cases v. Poland).

Recently, the Committee of Ministers of the Council of Europe, which monitors the implementation of ECtHR rulings, noted that Poland had made some progress.

For many years, Bulgaria (downgrading a judge to a lower court) and Hungary (the removal of a court president before the end of their term) have faced persistent problems with implementing ECtHR rulings concerning judicial independence.

Portugal and Spain have also failed to implement ECtHR rulings addressing systemic threats to judicial independence.

In Spain, judges who expressed support for Catalonian independence were surveilled by the police, who secretly gathered information about them and then leaked it to the media, along with their photographs (M.D. and others v. Spain). Implementing the ECtHR ruling in this case requires conducting an effective investigation to identify and punish the officials responsible for these unlawful actions, which violated the complainants’ right to privacy.

In Portugal, in the context of disciplinary proceedings against a judge in the Supreme Judicial Council (Ramos Nunes de Carvalho e Sá v. Portugal), which resulted in a fine and suspension, the Supreme Court refused to reassess the facts and did not hear the complainant. It ruled that its role was limited to assessing whether the factual findings made by the Supreme Judicial Council were reasonable. Portugal has introduced some positive changes, such as amending the law on judges, but the ECtHR ruling has not been fully implemented.

Challenges in Implementing CJEU Rulings

The report also assessed the implementation of rulings from the Court of Justice of the European Union in 17 countries. These member states have implemented only half of the 101 CJEU judgments issued against them in the past five years.

Many states implement rulings only partially, taking some steps but failing to fully enforce CJEU decisions. This is especially true in Romania, Hungary, Bulgaria, and Poland.

The highest rates of compliance with CJEU rulings are found in the founding members of the European communities: France, Germany, and Luxembourg. Even in these countries, there are delays, and the legislative process can be prolonged. However, this is the exception rather than the rule.

The most significant problem in the EU is the failure to implement CJEU rulings in areas such as:

• judicial independence,
• asylum and migration,
• data protection,
• academic freedom,
• the functioning of civil society organizations.

Romania, Hungary, and Poland have not fully implemented CJEU rulings regarding judicial independence.

Romania: Inspectorate Abuses

In Romania, the CJEU has highlighted political pressures exerted on Romanian judges through the activation of disciplinary, civil, and criminal liability mechanisms. The core of the problem lies in irregularities in the appointment and functioning of the Judicial Inspectorate, the body responsible for disciplinary proceedings.

Romania has passed legislative amendments, but some judges believe they will not prevent further abuses by the Inspectorate.

Additionally, the Romanian Constitutional Court has disagreed with the CJEU’s assessment and ruled that the Special Section for Investigating Judges and Prosecutors is constitutional. Non-compliance with the decisions of the Constitutional Court by lower courts has been deemed a disciplinary offense. Judges who sought to adhere to CJEU guidelines were at risk.

The CJEU has ruled in several cases that courts in member states cannot be bound by decisions of their constitutional courts that contradict EU law, and that they should not be held disciplinary accountable for applying EU law in line with the CJEU’s interpretation.

In 2021, the president of the Romanian Constitutional Court stated that Romania’s constitution would need to be amended for national courts to be required to disregard national laws that conflict with EU law. In December 2022, Romania abolished the disciplinary offense of non-compliance with the Constitutional Court’s rulings by the judiciary. However, under Constitutional Court jurisprudence, disciplinary liability still applies if bad faith or gross negligence is proven. Therefore, Romania has not fully implemented the CJEU’s rulings.

Disciplinary Proceedings Against Judges

In Hungary, the issue remains the possibility of initiating disciplinary proceedings against judges for referring preliminary questions to the CJEU. The Hungarian Supreme Court (Kúria) ruled that a lower court violated the law by submitting a question to the CJEU, which, in the Kúria’s opinion, was irrelevant to the case. Although Hungary amended its laws to make it easier to submit preliminary questions to the CJEU, the precedent set by the Supreme Court remains in force.

The KRS Issue

In Poland, the problem remains the National Council of the Judiciary (KRS), which was selected in 2018 and 2022 under politically influenced rules implemented by the ruling Law and Justice (PiS) party. The KRS nominates judges who are then appointed by the President of Poland. The CJEU has repeatedly ruled that the involvement of the flawed KRS in this process renders judicial appointments invalid, and judges are not independent under EU law. In April, changes to the KRS were passed, restoring a model in which judges on the KRS are elected by other judges, not the Sejm. However, President Duda did not sign the law, so it has not come into force. Judges appointed through the flawed procedure still sit and rule in the Supreme Court.

In January 2025, Poland will assume the presidency of the EU, presenting a unique opportunity to set an example for other member states by fully implementing CJEU and ECtHR rulings—not only those concerning the judiciary, but also on civil partnerships and the right to abortion.