12 Juli 2022
Hungary, Poland and the “Community of Fate”
In February 2022, the ECJ delivered a ruling in cases brought by Hungary and Poland against the European Parliament and Council. Not only did the ruling uphold the regime of conditionality for the protection of the EU budget; it also entered into the domain of European constitutional identity. Instead of undermining the European commitment to the rule of law, Poland and Hungary may have inadvertently consolidated the place of rule of law in the heart of EU identity. Continue reading >>
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26 April 2022
The Court of Justice of the EU goes (almost) public
While the broadcasting of the delivery does not add much value (the texts are generally made available online at the time of their live reading in Luxembourg) to its declared goal of facilitating “the public’s access to its judicial activity”, that of the public hearings appears a major game-changer in the Court’s stance vis-à-vis the public-at-large. And that despite the many precautions accompanying the introduction of such a major rehaul of the Court’s publicity policy regarding its hearings, Continue reading >>26 April 2022
Keeping the Past and the Present Apart
The mere fact that a judge was appointed for the first time under undemocratic conditions does not automatically determine that the court in which that judge adjudicates lacks the necessary independence under EU law. The CJEU has answered to this effect a question of Mr. Kamil Zaradkiewicz, appointed to Poland's Supreme Court in 2018 on recommendation of the new government-controlled National Council of Judiciary and thus lacking independence himself. Importantly, the CJEU emphasized that the referring court did not submit any evidence that may rise legitimate and serious doubts, in the minds of individuals, over independence and impartiality of the particular judge. With this decision, the Court refused to be drawn into the inner-Polish dispute about decommunization, and reinforced its jurisprudence on judicial independence standards in the EU. Continue reading >>
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25 Februar 2022
Claiming “We are out but I am in” post-Brexit
It is not often that the European Court of Justice (ECJ) is presented with a case in which the law is so crystal clear, and so overwhelmingly contrary to the applicant’s claims, as in Préfet du Gers. The central question of the case is weather British nationals retain their EU citizenship and EU citizenship rights after Brexit. Given how straightforward the Treaties and the case-law are on this matter, it is unsurprising that AG Collins answered this question in the negative in a well-argued and straightforward Opinion. Continue reading >>
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22 Februar 2022
Not looking up
It now seems that after the ruling is before the ruling. The Commission is intent on continuing with its wait-and-see approach, a situation which Hungarian MEP Katalin Cseh compared to the Netflix movie “Don’t look up”, in which the President of the United States decides to ignore the huge comet approaching the earth. While in the movie the comet finally destroys the planet, the European Parliament, however, is determined not to let it come to that. It has made clear that it will not tolerate this policy of looking the other way and has taken up arms. Continue reading >>
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21 Februar 2022
Constitutional Identity in and on EU Terms
The EU protects national constitutional identities and does not protect national unconstitutional identities. This is the message the Court of Justice of the EU has sent with its decision of 16 of February 2022, in the cases initiated by Hungary and Poland about the rule-of-law conditionality mechanism, in which it ominously referred to the constitutional identity of the EU. Constitutional identity, according to the CJEU, is a key concept of public law and a fundamental pillar of the EU, so Member States constitutional identities may not be manipulated in such a way that turns into a violation of the constitutional identity of the EU. Continue reading >>
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16 Februar 2022
No More Excuses
Sitting as a full court, due to the exceptional importance of the case, the Court of Justice has dismissed the annulment actions brought by the Hungarian and Polish governments against the Rule of Law Conditionality Regulation. A non-exhaustive account of the main substantive issues addressed by the Court. Continue reading >>
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04 November 2021
A More Complex Union
Based on the new legal history of European integration that has come out over the last decade, I will offer a different interpretation of the role of law in the EU than the one typically offered by legal scholarship. The central conclusion is that there is an unresolved tension in the relationship between law and politics in the EU that will most likely shape the Union’s response to the Polish crisis. To conclude, I will offer several alternative scenarios of how the EU may react to the Polish crisis. Continue reading >>14 Oktober 2021