13 October 2023
The Distorted Body
Ensuring the integrity of elections is a foundational concern for any democratic state. Yet, it faces a grave challenge in Poland, emanating from the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. Created in 2018 following controversial changes to the national judicial system and tasked with reviewing the validity of parliamentary elections, the Chamber fails to meet the essential criteria of an independent court. Confirmed by rulings of the European Court of Human Rights and the Supreme Court itself, the Chamber’s flawed origin and staffing, dependent on political influence and in departure from established rules of law, undermines its capacity to authenticate the fairness and legitimacy of elections. This echoes beyond Poland’s borders as well, since the Chamber’s defective status fails to meet European standards of effective judicial protection, thus raising concerns in the context of European integration. This blog delves into the Chamber’s position, examines its role in validating electoral process and its impact on the democratic legitimacy of Poland’s Parliament. Continue reading >>
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13 May 2022
Drifting Case-law on Judicial Independence
In a preliminary ruling of 29 March 2022, in case C-132/20 Getin Noble Bank, the CJEU answered questions on judicial independence of judges appointed under an undemocratic regime and of judges appointed before 2018 in an allegedly flawed process. Taking a highly formalistic approach, the Court seeks to preserve judicial dialogue between itself and the national judges – at the expense of the rule of law and judicial independence. Continue reading >>
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14 February 2022
From Romania with Love
The CJEU judgment "Euro Box Promotion" explicitly extended the Union’s requirement of judicial independence to constitutional courts for the first time. The ‘Romanian’ ruling carries an important message for the Polish government on how the EU legal order might react to the recent rulings of the Polish Constitutional Tribunal, which negate the primacy of European Union law. As a consequence, the CJEU confirms the right and the obligation of national courts to disregard constitutional court rulings that violate EU law. Continue reading >>
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30 November 2020
Time Is of the Essence
The announced veto of the Hungarian and Polish governments on the EU multi-annual budget and the European recovery fund has caused a major stir in recent days in Europe. The conditionality mechanism is designed to safeguard the Union’s financial interests and complements the existing political and judicial mechanisms. It is expedient to review the state of play of the procedures in place and, if necessary, to pose questions, whether they stand up to the challenges posed by developments in the respective countries, if they are carried out in a timely manner and focus on genuine effectiveness. Continue reading >>
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23 January 2020
Only a Court Established by Law Can Be an Independent Court
In A.K. and others, the European Court of Justice established a detailed method for assessing the independence (or lack thereof) of courts. The judicial independence test laid down by the ECJ, however, may not be entirely fit for the purpose of assessing the lawfulness of courts and judges which are established and appointed on the basis of flawed procedures by bodies arguably violating basic judicial independence requirements as established in EU law. The ECJ appears to limit the required verification under EU law to the issue of independence only. Instead, the reviewing body should, first, check whether the challenged court (judge) is “established by law” and only then, if necessary, follow up on the examination of its independence. Today the Polish Supreme Court has the opportunity to step up and give full effect to that criterion. Continue reading >>
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