05 July 2018
The AG Opinion in the Celmer Case: Why the Test for the Appearance of Independence is Needed
In this post, I focus on what I believe is the most important question in the Celmer case: what kind of a test for the rule of law/fair trial, and with how many prongs? I argue that the rule of law/fair trial test that the Court should apply is the test for the appearance of independence, known from the practice of the ECtHR. I also argue that the Court should not leave the application of this test to the referring court but carry it out by itself. Continue reading >>
0 
02 July 2018
The AG Opinion in the Celmer Case: Why Lack of Judicial Independence Should Have Been Framed as a Rule of Law Issue
On 28 June 2018, Advocate General Evgeni Tanchev delivered his Opinion in the Case C‑216/18 PPU Minister for Justice and Equality v LM on the surrender of a crime suspect to Poland. The issue is whether Mr. Artur Celmer, referred to by the Opinion as LM, should be surrendered from Ireland to Poland when there are serious doubts as to whether he would receive a fair trial, due to the alleged lack of independence of the judiciary resulting from recent changes to the Polish judicial system. Continue reading >>09 June 2018
Open Letter to Vice-President Frans Timmermans
If the law on the Polish Supreme Court enters into force in the beginning of July, as is currently planned, a large number of sitting judges of that Court will see their tenure unconstitutionally extinguished. In combination with an increase in the number of seats on the Supreme Court, this means that the newly politicized National Council of the Judiciary, elected by the governing party, will be in a position to appoint a majority of the judges on the Supreme Court. 23 legal and constitutional scholars have signed an open letter to urge the Vice President of the EU Commission to initiate an infringement procedure against Poland. Continue reading >>14 May 2018
Judges under Attack in Hungary
Judges seem to irritate the Hungarian Prime Minister Viktor Orbán who likes to talk officially about “the judicial state” and irresponsible judges. Despite many problems with judicial autonomy and practice, judicial independence itself has remained relatively intact from overt political influence so far. More precisely: the governing party and its friends could not completely rely on the courts to get favorable decisions. For example, governmental bodies have regularly lost cases initiated by civil legal organizations for the release of public information. That, however, might change after Orbán’s latest electoral victory. Continue reading >>
0
13 May 2018
10 Facts on Poland for the Consideration of the European Court of Justice
In June, the European Court of Justice is to decide whether, despite massive legislative changes, the Polish judiciary is still independent and therefore able to ensure a fair trial to people extradited to Poland on the basis of a European Arrest Warrant. Marcin Matczak, a Polish lawyer, uses the old tradition of the amicus curiae letter – a letter from a friend of the court – to depict the situation of the Polish judiciary in 2018. Continue reading >>24 April 2018
The Draft Amendments to the Serbian Constitution: Populism before Judicial Independence
Serbia is currently abuzz with draft constitutional amendments that should enhance judicial independence and move the country one step closer to EU accession. On 12 April 2018, the Serbian Government adopted the draft amendments and sent them to the Venice Commission. However, while at present the political influence on the judiciary comes from the political institutions, in the future this influence will come from the ruling majority. Continue reading >>
0
16 April 2018
Bad Response to a Tragic Choice: the Case of Polish Council of the Judiciary
A few days ago, the courageous and intelligent Chief Justice of the Polish Supreme Court, Professor Małgorzata Gersdorf, announced that, after some agonizing due to important legal and moral dilemmas at stake, she decided after all to convene the first, inaugural meeting of the National Council of Judiciary. The meeting is to take place on 27 April. The decision was met with dismay on the part of some lawyers and relief on the part of others. Generally, however, it did not prompt any particularly strong responses on either side. But the decision is momentous, both in its practical consequences and as a matter of principle. Continue reading >>
0
17 March 2018
Die Rechtsstaatlichkeitskrise vor Gericht: der Anfang vom Ende gegenseitigen Vertrauens
Die Rechtsstaatlichkeitskrise in Polen rückt zunehmend in den Fokus der Gerichte. Das gilt auch für den EuGH und die Gerichte anderer, auf den ersten Blick nicht direkt betroffener EU-Mitgliedstaaten. Eine Entscheidung des irischen High Courts vom 12. März 2018 zeigt die übergreifenden Folgen der „polnischen“ Rechtsstaatlichkeitskrise in bislang ungekannter Prägnanz auf. Die Botschaft lautet: Die Negation rechtsstaatlicher Grundsätze, wie sie derzeit in Polen zu beobachten ist, rüttelt an den Grundfesten der europäischen Rechtsgemeinschaft. Sie kann als solche auch außerhalb Polens nicht ignoriert werden. Continue reading >>13 March 2018
CJEU Opens the Door for the Commission to Reconsider Charges against Poland
In the Associação Sindical dos Juízes Portugueses judgment the Court of Justice of the European Union (CJEU) deemed that on the basis of Article 19(1) TEU it is competent to evaluate the guarantee of independence of judges if only they sit in a national court that may apply and interpret EU law. In light of this ruling, the European Commission in the infringement proceedings against Poland does not have to restrict itself to the slightly modified “Hungarian scenario” (hitherto preferred by it). It may instead once again analyse the scope of charges with regard to the Common Courts System Act (the CCS Act), and may even lodge a new complaint concerning i.a. the Act on the Supreme Court. Continue reading >>
0
08 March 2018