20 January 2022
Curing the Symptoms but not the Disease
Traffic violations are not a proportionate justification to effectively deprive a person of her EU citizenship. This may sound obvious but in reality it was not, as the crucial Grand Chamber case of JY decided on January 18 demonstrates. This is a significant yet predictable addition to the edifice of EU citizenship post-Rottmann. Regrettably, the forward-looking judgment is myopic up to the point of an error of judgement as to the fundamental challenges at play in the factual constellation at hand. Continue reading >>
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10 January 2022
Who’s Afraid of the „Big Bad Court”?
The end of 2021 brought a new chapter in the saga of how should the primacy of the EU law be applied by Romanian courts. A press release of the Romanian Constitutional Court, issued on 23 December 2021, raised concerns about the conformity with the principles set forth in the case law of the CJEU regarding the primacy. The press release, albeit a non-legal document, might have a dissuasive effect upon the judges who would be, otherwise, willing to disapply some norms of internal law, according to the latest judgment of the CJEU on the matter. In Romania, the disregard of the decisions of the Constitutional Court can be a ground for disciplinary action against judges. Continue reading >>
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13 December 2021
Not Above the Law
In the joined cases EMA and ELA on the determination of EU agencies’ seats, a decision of the EU-Court is pending very soon. According to AG Bobek’s opinion, delivered on 6 October 2021, intergovernmental decisions the seats of the European agencies fall outside the EU Court’s judicial review. Ezio Perillo, former Judge at the General Court, does not agree with this solution. For him court has the duty to assure the effective judicial protection of intergovernmental decisions when they do not respect the institutional balance as in the EMA and ELA cases. Continue reading >>
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12 November 2021
Plaumann and the Rule of Law
Most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU. One possible response may be to modify the Plaumann-test insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’. Continue reading >>
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11 November 2021
(Il-)Legal Gymnastics by Poland and Hungary in EU Border Procedures
This week, Poland has made headlines yet again for dispatching 12,000 guards to the border between Poland and Belarus and the use of tear gas to prevent third country nationals (TCNs), including children, from crossing into Polish territory. It is acutely problematic that Poland has foregone any semblance of conformity with EU law at all in the adoption of its domestic legislation on border procedures. Continue reading >>12 October 2021
In the Courts the CJEU does not Trust?
In last week’s long-awaited judgment, the CJEU had the opportunity to revisit its case law concerning the national courts’ obligation to refer preliminary questions. The Court largely maintained its strict approach and thereby, at first sight, admits of little trust in the national courts’ handling of EU law. Upon closer inspection, however, an alternative reading of the judgment seems possible. Continue reading >>28 July 2021
How Not to Deal with Poland’s Fake Judges’ Requests for a Preliminary Ruling
In his Opinion of 8 July 2021 in Case C-132/20 Getin Noble Bank, AG Bobek advised the Court of Justice to find admissible a national request for a preliminary ruling originating from an individual who was appointed to Poland’s Supreme Court on the back of manifest and grave irregularities. In this specific case, contrary to the position of AG Bobek, we submit that the ECJ must find the request inadmissible as the referring individual cannot be considered a tribunal established by law. Continue reading >>20 July 2021
Protecting Polish Judges from Political Control
After many years of judicial “reforms”, Kaczyński’s Poland may soon become the EU’s second authoritarian Member State, even as the European Court of Justice increasingly attempted to deal with different aspects of Kaczyński’s multi-pronged attacks on judicial independence. In Case C-791/19, the found the new disciplinary regime for Polish judges to be incompatible with EU law while in Case C-204/21 R, the Vice-President of the ECJ ordered the immediate suspension of the application of the legislative provisions governing the jurisdiction of the infamous “Disciplinary Chamber”. Continue reading >>19 July 2021
Polexit or judicial dialogue?
In the world of EU law, Poland and the rule of law, it was a wild third week of July. A series of events unfolded in Warsaw and Luxembourg, adding to the saga of Polish rule of law travails before courts. All levels of Polish government and bodies controlled by the ruling party have decried CJEU interim orders and judgments, indicating a complete lack of will to comply with EU law and CJEU rulings. Is a "Polexit" looming? Continue reading >>
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19 July 2021
All Eyes on LGBTQI Rights
In Fedotova v Russia, the ECtHR found that Russia overstepped the boundaries of its otherwise broad margin of appreciation because it had “no legal framework capable of protecting the applicants’ relationships as same-sex couples has been available under domestic law”. The case foreshadows a future wherein the familiar line of cases advancing the protection of same sex couples will need to be complemented by a jurisprudence that engages with the backslash against LGBTQI rights. Continue reading >>
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