31 December 2019
The Supranational Rule of Law: Thinking the Future
Writing at the end of 2019 it must be clear that art. 7 TEU is not a viable political option at all. However, the Treaties do contain legal mechanisms to enforce the rule of law against the member states. Art. 7 is not, and must not, be the center of the rule of law world in the EU. Poland’s refusal to obey the Court’s judgments and its readiness to do everything possible to circumvent it strike at the very heart of the EU rule of law. The challenge is to use what is legally available rather than keep finding excuses for not using the mechanisms already in place. Continue reading >>
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27 December 2019
The Supranational Rule of Law: Taking Stock
While a transnational conception of the rule of law requires the engagement of and commitment to the EU project from all actors involved, this begs the question as to what happens when the assumptions underlying art. 2 TEU are no longer applicable? For the rule of law, 2019 has been of fundamental importance because we have been taught important constitutional lessons and started getting answers to some of the most crucial constitutional questions. While much still remains shrouded in mystery and question marks are aplenty, at least the judicial trajectory for the rule of law in 2020 has been set in 2019. Continue reading >>
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22 December 2019
Discipline and Punish
The Polish rule of law saga took yet another turn for the worse. The Parliament is working on a bill to prevent judicial review of the previous judicial reforms as well as to neutralize the effects of adverse CJEU judgments. The bill is blatantly unconstitutional but without a functioning Constitutional Court it does not matter much. It is also contrary to EU law. Continue reading >>
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11 December 2019
Open Letter to the President of the European Commission
Ever since the European Commission initiated a third infringement procedure in respect to the recurrent attacks on the rule of law by Polish authorities last April, the situation has continued to seriously deteriorate. It is now upon the Commission to promptly submit to the European Court of Justice an application for interim measures in the infringement case C-791/19 Commission v Poland now pending before the Court of Justice. Continue reading >>03 December 2019
A Captured State
The need for a rapid EU response in the rule of law crisis in Malta is evident: Every aspect of Daphne Caruana Galizia’s assassination case is susceptible to political interference from the Office of the Prime Minister. The police force is politically controlled, the magistrate is politically appointed, any pardons which may be granted to extract further information are within the gift of the Prime Minister, as are the chief prosecutors’ career prospects. The question of judicial independence, acute as it is, is just the tip of a rather large iceberg. Continue reading >>
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01 December 2019
Building on #WithWoj
Just days away from a new Commission taking office that proclaims to put rule-of-law protection centre-stage, this may be a good time to suggest some ways forward based on the energy generated by, and experiences with #WithWoj. I suggest there are three elements, and each may be counterintuitive and/or confrontational. Continue reading >>
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29 November 2019
The Rule of Law in a European Economic Area with National “Room for Manoeuvre”
The former president of the EFTA Court, Carl Baudenbacher, lashes out at more or less the entire Norwegian legal community in his attempt to explain how Norway’s social security authorities (‘NAV’) have come to misinterpret Regulation 883/2004 on the coordination of social security systems for years, and how public prosecutors, defence lawyers, judges, academics and the EFTA Surveillance Authority all failed to reveal this. This reply challenges his narrative and attempts to explain how use of the “room for manoeuvre” that EU/EEA law leaves to the national legislator can very well be combined with loyal fulfilment of EEA law obligations in an EEA based on the rule of law. Continue reading >>26 November 2019
Enforcement of EU Values and the Tyranny of National Identity – Polish Examples and Excuses
Professor A. von Bogdandy in his recent piece published at Verfassungsblog analyzes difficulties regarding enforcement of the EU values. He argues that the application of Treaty provisions relating to EU fundamental values should be cautious in order to avoid controversy or pressure. However, the ‘national identity argument’ is not convincing in the Polish case. It cannot be used by a Member State in an arbitrary or blanket way without being checked and confirmed. Continue reading >>
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26 November 2019
One Step Back, Two Steps Forward
The Hungarian Government has officially abandoned its plans to reform the administrative court system. However, the plan to subdue the judiciary is pursued as relentlessly as ever: On 12 November 2019, the Hungarian Government introduced an omnibus legislation which would extend political influence over the judiciary and guarantee judicial decisions favorable to the Government in politically sensitive cases. Continue reading >>
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26 November 2019