Shortly before the summer recess, on 11 July 2024, the Court of Justice of the European Union (ECJ) in Luxembourg delivered an intriguing judgment in 3 joined cases C 554/21, C 622/21 and C 727/21 (hereinafter referred to as 'Hann-Invest'). These judgments were based on a reference for a preliminary ruling from the Visoki trgovački sud Court of Appeal of Croatia. The ECJ's ruling should serve as a starting point for judges in Europe to engage in professional debate about improving the quality and consistency of rulings. It strikes an important and workable compromise between the need for effective legal protection and judicial independence on one hand, and the practical realities faced by national courts on the other. In this context, the ECJ implicitly acknowledges another aspect of adjudication: ensuring consistency in case law and legal certainty is crucial, but the law must be able to evolve in the courtroom, even if this temporarily leads to divergent case law.

Case background

In Croatian appeal courts, decisions made by a judicial panel must be reviewed by a ‘registrations judge’ before being formally delivered. Appointed by the court president, this judge ensures consistency in case law by comparing current decisions with previous ones. If inconsistencies are found, the registrations judge can request the panel to resolve them. Should the panel not amend the decision, the matter can be referred to a section meeting where a ‘binding legal position’ is adopted, which the judicial panel must follow.

In the Hann-Invest case the registrations judge refused to register the decisions made by multiple-judge panels in three different insolvency appeal cases. Although these panels had dismissed the appeals, the registrations judge returned the decisions, stating his disagreement with the outcomes. He instructed the panels to issue new decisions that aligned with the court’s previous case law.

This internal procedural issue prompted the referring court to seek clarification from the European Court of Justice (ECJ) on whether such an internal mechanism for finalizing judicial decisions is compatible with the fundamental principle of effective judicial protection as enshrined in the Treaty on European Union (TEU) and the Charter of Fundamental Rights of the European Union.​

Ensuring consistency in case law

The primary aim of the registrations judge is to maintain uniformity in judicial decisions within the court. By reviewing decisions, the registrations judge ensures that similar cases are treated alike, thereby upholding the principle of legal certainty. This intervention prevents contradictory rulings that could undermine the coherence of the legal system. The role of the registrations judge serves as an internal mechanism for quality control, ensuring that judicial decisions meet certain standards before being finalised and communicated to the parties.

At first glance, the role of the registrations judge seems beneficial, as it aims to prevent judicial divergence. Divergent case law can cause significant delays and create legal uncertainty, making it difficult to predict the outcome of disputes. Litigants will feel compelled to appeal and seek cassation to assert their rights. This undermines public confidence in the judicial system.

Potential risks of the Croatian registrations judge

Yet, the registrations judge introduces a layer of oversight that could potentially be misused, leading to undue influence on judicial independence. The mechanism could be exploited to prevent politically unfavourable judicial decisions. The rule of law crisis in Poland has unfortunately shown that this danger is not merely theoretical, even within the EU. It has become evident that the PiS regime, in just a few years, deeply penetrated the Polish judiciary, compromising its independence and integrity. An oversight mechanism like the one in Croatia could easily be abused in similar ways, allowing political forces to manipulate judicial outcomes. This could erode the rule of law and stifle judicial impartiality. Therefore, while the role of the registrations judge aims to enhance consistency, it also potentially opens the door to abuses of power.

The Court's judgment

The question the ECJ had to address is how the Croatian model relates to effective legal protection under Article 19 TEU and the right to an effective remedy and a fair trial under Article 47 of the EU Charter, which, like Article 6 of the European Convention on Human Rights (ECHR), states that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”

In 2018, the ECJ (Grand Chamber) in the case of Associação Sindical dos Juízes Portugueses held that:

“The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.”

The Court in Hann-Invest reminds us that independence is not only about external autonomy concerning the legislative and executive branches but also about safeguarding judges against undue influence from within the court itself. Importantly, the phrase "previously established by law" aims to prevent the organisation of the judicial system from being left to the discretion of the executive and ensures it is governed by law.

4 problems

In the Hann-Invest case, the ECJ, like Advocate General Pikamäe, identified at least 4 problematic aspects of the Croatian procedure. First, the role of the registrations judge lacks a sufficient legal basis. Second, a registrations judge can influence the content of judicial decisions made by panels of which he is not a part. Third, there are no clear criteria outlining when and how the registrations judge may intervene.

The main problem, however, according to the ECJ, is that only the judicial panel responsible for the case is permitted to make the decision that closes the proceedings:

“In the light of the foregoing, national legislation which allows a section meeting of a national court to compel, by putting forward a ‘legal position’, the judicial panel responsible for the case to alter the content of the judicial decision which it previously adopted, even though that section meeting also includes judges other than those belonging to that judicial panel and, as the case may be, persons from outside the court concerned, before whom the parties do not have the opportunity to put forward their arguments, is incompatible with the requirements inherent in the right to effective judicial protection and to a fair hearing.”

Avoiding inconsistent case law

Despite the sharp criticism from the ECJ on the Croatian procedure, a mechanism ensuring consistent case law is not impermissible. After determining what is not allowed under EU law, the Court specifies quite precisely what is permitted in this regard. In paragraph 80, the Court stated:

“A procedural mechanism which, in order to avoid or resolve conflicts in case law and thus to ensure the legal certainty inherent in the principle of the rule of law, allows a judge of a national court, who is not a member of the judicial panel with jurisdiction, to refer a case to a panel of that court sitting in extended composition is nevertheless permissible, provided that:

1. The case has not yet been deliberated by the judicial panel initially designated,
2. The circumstances in which such a referral may be made are clearly set out in the applicable legislation, and
3. The referral does not deprive the persons concerned of the possibility of participating in the proceedings before the panel sitting in extended composition. In addition, the judicial panel initially designated can always decide to make such a referral.”

The occasional need for divergent case law

The ECJ's ruling strikes an important and workable compromise between the need for effective legal protection and judicial independence on one hand, and the practical realities faced by national courts on the other. In this context, the ECJ implicitly acknowledges another aspect of adjudication: ensuring consistency in case law and legal certainty is crucial, but the law must be able to evolve in the courtroom, even if this temporarily leads to divergent case law.

Judges must keep pace with changing times, as the European Court of Human Rights (ECtHR) has often emphasised. It frequently describes the Convention as a "living instrument" that must be applied in light of current circumstances and developments. This approach ensures that the law remains relevant and adaptable to the changing needs of society, fostering a legal system that is both stable and dynamic.

This is no different at the level of the member states. Primarily, legal development falls to the legislative and executive branches, but they increasingly rely on the judiciary to help develop the law on a case-by-case basis.

It is inevitable that this process takes time and can occasionally result in divergent case law between first-instance courts and appellate courts. However, this is a circumstance we must sometimes accept. In Beian v. Romania (no. 1) from 2007, for example, the ECtHR emphasised that the existence of contradictory decisions is not inherently a violation the of right to a fair trial, as long as there are adequate remedies to ensure consistency and legal certainty.

In other words, in a system like that in Croatia, apart from the other issues the Court has criticised, there must also be safeguards to ensure that the goal of guaranteeing the consistency of case law does not hinder necessary legal development by judges. The big question, then, is who determines what constitutes necessary ‘legal innovation’: the judges in the judicial panel, the registrations judge, or all other judges in a court?

Relevance of Hann-Invest for member states

All things considered, the ECJ does not issue a general prohibition against mechanisms ensuring consistency in case law within a judicial body. The key question is whether the mechanism is regulated by law and if there are sufficient safeguards against undue influence from within the court. The final decision must always be made by the judges to whom the case is assigned.

Hann-Invest is an important judgment for Member States, as many of the 27 EU countries have mechanisms in place at appellate and supreme court levels to ensure legal uniformity. (For connoisseurs: this judgment is also applicable in cases where EU law is not involved, as it pertains to the judicial organisation.)

In Strasbourg, a Dutch case (Kuijt v. The Netherlands) is pending which bears some resemblance to the Hann case. The application concerns the practice in the Netherlands Supreme Court (Hoge Raad) of allowing judges to sit in deliberations even when they are not part of the formation to which the case has been assigned. The Dutch Supreme Court employs this practice to make decisions that can secure broad support within the court through internal coordination. These "reservisten" participate in deliberations to ensure legal uniformity. According to the Protocol deelname aan de behandeling en beraadslaging, a procedure established by the Supreme Court in 2017, reservists are members of the Supreme Court but are not part of the multi-judge chamber to which the case is assigned. The final decision, however, is always made by the three or five judges who are part of the panel.

In the case of Kuijt, the applicant claims a violation of her rights under Article 6 § 1 of the Convention, arguing that her appeal in cassation was not determined by a "tribunal established by law" since it included reservists, thus exceeding the legally defined number of judges. She also contends that both the seat members and the reservists cannot be regarded as independent and impartial under these circumstances.

In light of the Hann-Invest case, the practice of the Dutch Supreme Court might be problematic since it is based on a procedure established by the judicial body itself. But does this necessarily mean that the reservist practice is not established by law? Let's not forget that "law" in ECtHR case law is a broad concept, encompassing not only formal legislation but also other sources of law such as case law, regulations, and administrative rules, provided the text is available to the public and the rule is sufficiently clear and precise. Given the subject matter, it is debatable whether the use of reservists must necessarily be regulated by the legislature in the Judiciary Act or if codifying this practice falls within the jurisdiction of the Supreme Court. In any case, this judicial protocol is published on the website of the Dutch Supreme Court, thereby meeting the requirements of transparency, accessibility, and foreseeability. Another important difference with the Hann-Invest case is that while reservists can participate in discussions, they do not partake in the final decision-making.

Admittedly, given the importance of consistent case law in the Dutch Supreme Court's jurisprudence, judges on the judicial panel are likely to seriously consider the opinions of their reservist colleagues. Some judicial peer pressure is inevitable, but does this necessarily amount to 'undue' influence, surpassing the professional discourse expected of academics? One would hope that under normal circumstances, Supreme Court judges can withstand such pressures from colleagues. (In 'abnormal' circumstances however, ‘proper’ legislation may not make much of a difference, as evidenced by the rule of law crisis in Poland. Ultimately, law cannot withstand physical force.)

Professional Discourse Among Judges

In my opinion, the ECJ's ruling in Hann-Invest should serve as a starting point for judges in Europe to engage in professional debate about improving the quality and consistency of rulings. It is no coincidence that many judiciaries in Europe feel the need to establish mechanisms to ensure consistency in case law. Society has evolved dramatically, bringing new challenges and complexities that the judicial system must address. The expanding body of national and EU law, along with frequent case law updates from two European courts, makes the legal landscape increasingly difficult to navigate, even for super-specialists.

At the same time, society expects judges to ensure their decisions are well-reasoned, clear, and based on a thorough examination of the law. This helps prevent unnecessary appeals, which lead to increased frustrations, costs, and delays for litigants. In this day and age, more coordination between judges within a judicial body is inevitable. Of course, this must be done while respecting due process and the autonomous role that judges must play in the decision-making process. However, judges who use their independence merely as a pretext to avoid professional discourse with colleagues about the quality and consistency of their rulings have little ground to stand on. Engaging in such discussions is essential for judges to fulfil their duty to deliver sound judgments and maintain public trust in the judiciary.