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
The Court is dead, long live the courts? On judicial review in Poland in 2017 and „judicial space” beyond
How should Polish judges respond, now that the Constitutional Court is being used in the day-to-day politics, and keeps delivering goods for its political masters? We have to be unequivocal here. Any future decisions taken by the „fake Court” with the “fake” judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or made by, “fake” judges, their own proceedings will be vitiated by invalidity. Continue reading >>01 March 2018
The Rule of Law in Poland: A Sorry Spectacle
With political appointments to its National Council of the Judiciary, Poland is now seeing the next step in the dismantling the rule of law. The change in the procedure for appointments to the Council was one of the reasons thousands of Poles took to the streets last summer to protest in the name of independent courts. Their fears have turned out to be well founded. Continue reading >>28 February 2018
Has the CJEU just Reconfigured the EU Constitutional Order?
On 27 February 2018 the Grand Chamber of the Court of Justice of the EU (CJEU) handed down a judgment in Associação Sindical dos Juízes Portugueses v Tribunal de Contas. The case concerned a legal challenge of the Portuguese association of judges against austerity measures temporarily reducing the salaries of public sector workers. The CJEU may have used it to potentially reconfigure a long-standing compromise underlying the EU constitutional order, and to send a signal to Poland (and others) and preparing for future engagement with what could possibly be independent Polish courts. Continue reading >>
0
16 February 2018
Von Karlsruher Erbhöfen, parlamentarischer Fragmentierung und der Gefahr schwindenden Institutionenvertrauens
Dass das Wahlverfahren zum Bundesverfassungsgericht wegen seiner Intransparenz, seiner vermeintlichen Verfassungswidrigkeit oder seiner faktischen Monopolisierung durch CDU/CSU und SPD von Zeit zu Zeit Kritik hervorruft, daran hat man sich längst gewöhnt. Dass das Gericht selbst und Teile der Öffentlichkeit nun aber offen vor seiner Politisierung warnen, ist in dieser Form neu, erklärungsbedürftig – und richtig. Continue reading >>31 January 2018
Failing to Struggle or Struggling to Fail? On the New Judiciary Legislation Changes in Romania
Like never before in the last 28 years in Romania, huge protests have started against the ‘assault against the judicial independence’. Awareness has been raised as regards the importance of a truly independent judiciary and the disastrous effects of political corruption on the very existence of a liberal democracy. Continue reading >>29 January 2018
Drama or Serenity? Upcoming Judicial Appointments at the Slovak Constitutional Court
2018 is shaping up to be one of the most important years in the history of the Slovak Constitutional Court (SCC). Nine of the currently sitting 13 judges will see their non-renewable terms expire in February 2019. The new appointments have the potential to be shrouded in drama, as they will take place against the background of a constitutional and political power struggle over SCC appointments between the President and the government, as well as broader judicial malaise in the country. Continue reading >>26 January 2018
Free Men and Genuine Judges will Remember about Free Courts
The story of Judge Stanisław Zabłocki of the Supreme Court, told by Ombudsman Adam Bodnar – a cenotaph to judicial indepenence in the Republic of Poland. Continue reading >>03 January 2018
The Commission takes a step back in the fight for the Rule of Law
The European Commission has filed a complaint against Poland with the Court of Justice of the European Union based on Article 258 TFEU, in connection with the Polish Act on the Common Courts System. Fines may be charged on Poland as a result of the case, but the Commission has probably quietly withdrawn some of its charges, apparently opting for the somewhat modified “Hungarian scenario”. The impact of this new approach on the reversibility of the changes introduced to the Polish judiciary will be very limited. Continue reading >>23 December 2017
The European Commission’s Activation of Article 7: Better Late than Never?
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland. The remaining question, of course, is why this argument has been used in the context of 7(1) as opposed of 7(2) given that the situation on the ground in Poland is clearly – in the view of the Commission, the Venice Commission and countless other actors – one of clear and persistent breach of values, as opposed to a threat thereof. The explanation might lie beyond the simple difficulty of the procedural requirements related to the sanctioning stage. Continue reading >>
0