17 April 2018
Selmayr’s Appointment: Why this Juncker Crisis is Much More Dangerous for the EU Commission than the Santer Crisis in 1999
The promotion of Jean-Claude Juncker's chief of cabinet Martin Selmayr to secretary general of the EU Commission has caused quite a stir in some parts of the press, but rather little critique in the EU Parliament, among EU lawyers and in the eurobubble in general. This episode will come back recurrently during the populist campaign against the EU institutions in 2019. And later it will still be used to weaken the Commission. 2019 will sadly be far from the end of this story. Continue reading >>
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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 >>
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05 April 2018
The Consensus Fights Back: European First Principles Against the Rule of Law Crisis (part 2)
For the EU to have a chance against the rising politics of resentment, the language, and perspectives through which the EU looks at the member states, must be challenged and change. “Essential characteristics of EU law” must go today beyond traditional “First Principles” of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary and enforceability of these principles as part of the ever-evolving consensus. Continue reading >>05 April 2018
The Consensus Fights Back: European First Principles Against the Rule of Law Crisis (part 1)
The referral to the Court of Justice by the Irish judge that questions how the capture of the Polish judiciary affects her duties under the European Arrest Warrant regime has dramatically changed the landscape of the European rule of law crisis. We are witnessing a switch from the classic paradigm of EU law of «judges asking judges» (dialogue via preliminary rulings) to a more demanding « judges monitoring the judges ». Continue reading >>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 >>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 >>
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30 December 2017
„A Good Constitution” and the Habits of Heart
Unless we want to complete an obituary for the rule of law in 2018, the challenge should be clear. While improving constitutional safeguards against the excesses of any majority is of utmost importance, it is insufficient. What is needed this time is moving beyond text text and on to building the context in which a constitution will prosper. Continue reading >>21 December 2017