The European approach to judicial independence. Lessons from Romania on judicial self-governance and judicial accountability

Abstract

Judicial independence is widely recognized as the cornerstone of the rule of law and has become a central concern of the European Union’s constitutional framework. As such, judicial independence is a living concept of the European acquis, having evolved to incorporate multiple dimensions in its definition and instrumentalization. In promoting this ideal, the EU has consistently equated judicial independence to judicial self-governance, based on the assumption that judicial autonomy alone can ensure judicial independence. However, this approach mainly focuses on the external dimension of independence, insulating the judiciary from the legislative and executive branches of government. As such, it has promoted the judicial council Euromodel in the post-communist CEE Member States, which ensures a high degree of de jure autonomy. In doing so, it has overlooked risks originating within the judiciary itself, stemming from a lack of judicial accountability within self-governance structures. Using Romania as a case study, this thesis examines the internal perils of judicial independence that can arise in the perfect judicial council ‘Euromodel’, classifying them into three distinct categories. The findings suggest that high levels of judicial self-governance do not automatically guarantee judicial independence. Instead, where significant powers over judicial careers are concentrated in self-governing bodies without adequate safeguards of accountability and transparency, judicial self-governance may create internal pressures capable of affecting judges’ decisional independence. The Romanian experience illustrates how governance structures designed to protect the judiciary from external influence may themselves become sources of internal vulnerability. Furthermore, the thesis critically examines whether the mechanisms employed by the Union to address judicial independence in Romania have effectively identified and responded to these internal perils. The thesis concludes that the European Union should adopt a more nuanced approach to judicial independence by complementing its emphasis on institutional autonomy with greater attention to internal accountability and the practical functioning of judicial self-governing institutions.