02 July 2023
Poland’s Extended Disciplinary System
The judgement of the European Court of Justice (ECJ) on June 5, 2023 (C-204/21) has added a new chapter to the rule of law crisis in Poland. The outcome was largely expected given the well-established jurisdiction of the ECJ on matters of the rule of law. However, a close reading of the judgment demonstrates that it recognizes the more insidious ways in which Poland has undermined judicial independence. Specifically, I argue that the ECJ's ruling paves the way for a legal response to the suppression of judicial independence through public intimidation and stigmatization of judges. Continue reading >>
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27 March 2023
Limitations of the Transnational ne bis in idem Principle in EU Law
No-one shall be tried or punished twice for the same offence. This principle is part of the fundamental law protection in the EU, but can be limited under certain conditions. In Case C-365/21, decided on 23 March 2023, the ECJ has confirmed the validity of an important limitation of the transnational ne bis in idem guarantee. Another case which arose in the context of the Diesel scandal involving German automobile producer Volkswagen and is still pending before the European Court of Justice gives the Court a new opportunity to set new standards regarding limitations of the ne bis in idem principle in cases involving different Member States and to strengthen this principle which is of great importance for the completion of a genuine area of freedom, security and justice. Continue reading >>
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31 January 2023
Battling the hydra in EU anti-discrimination law
Can a company refuse to conclude or renew a contract with a self-employed person because he is gay? And may contractual freedom prevail over the prohibition of discrimination in such a situation? A short answer stemming from the recent ECJ judgment in J.K. v. TP would be a resounding no. Yet, a further analysis is in order because the judgment also brings a significant shift in the ECJ’s anti-discrimination case law. Continue reading >>
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18 October 2022
Digital Autonomy in Contractual Relationships
It is rare for two Advocates General of the European Court of Justice to differ on the interpretation of a fundamental legal act of the European Union. This is what recently occurred with regard to the General Data Protection Regulation. Continue reading >>12 July 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 February 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 February 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 February 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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