Articles for tag: Conseil Constitutionnel, constitutional democracy, judicial independence

A Male, White and Conservative Constitutional Judge

In February and March 2022, three new members have been appointed to the French Conseil constitutionnel. A closer look at the new composition shows that France’s constitutional court is composed of a majority of male, white, elitist graduates with a right-wing tilt, drawn from the ranks of politicians and civil servants. In a broader sense, it is actually a good portrait of the current French political system, which seems to resemble some kind of oligarchy.

3. Mai 2022

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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.

26. April 2022

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Avoiding the Elephant in the Room Once Again

In its long-awaited Grand Chamber judgment, the EU Court of Justice (CJEU) dealt with the question how the effective functioning of the instrument of the European arrest warrant (EAW), built upon the principle of mutual trust between the judicial authorities of all the Member States, can be safeguarded against the backdrop of the deficiencies in the Polish judicial system. The judgment specifies the conditions under which the national judicial authorities of Member States executing a European arrest warrant may refuse to surrender the requested persons, but still fails to reach its full potential.

25. Februar 2022

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From Romania with Love

The CJEU judgment "Euro Box Promotion" explicitly extended the Union’s requirement of judicial independence to constitutional courts for the first time. The ‘Romanian’ ruling carries an important message for the Polish government on how the EU legal order might react to the recent rulings of the Polish Constitutional Tribunal, which negate the primacy of European Union law. As a consequence, the CJEU confirms the right and the obligation of national courts to disregard constitutional court rulings that violate EU law.

14. Februar 2022

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When Is a Court Still a Court?

On 3 February 2022, the European Court of Human Rights (ECtHR) issued a judgment in the case of Advance Pharma sp.z o.o. against Poland. This is another judgment on the irregularities in the appointments of judges to the Polish Supreme Court, in which the ECtHR confirmed its previous rulings. But it also touched on several implications of its conclusions for the Polish judiciary. It suggests that they may be relevant for ordinary courts in Poland as well and that Polish authorities should ensure the possibility to reopen proceedings in certain situations.

11. Februar 2022

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Paper Constitutionalism

On January 16, Serbian citizens voted in a referendum on constitutional changes concerning the guarantees of the judicial independence and organization of the judicial sector. According to preliminary results, 57, 4% of citizens voted for the reforms, while 41,6% voted against, with a turnout of not more than 30% of all registered voters. I would argue that constitutional amendments concerning the judiciary should have been postponed for two reasons.

17. Januar 2022

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Who’s Afraid of the »Big Bad Court«?

The end of 2021 brought a new chapter in the saga of how should the primacy of the EU law be applied by Romanian courts. A press release of the Romanian Constitutional Court, issued on 23 December 2021, raised concerns about the conformity with the principles set forth in the case law of the CJEU regarding the primacy. The press release, albeit a non-legal document, might have a dissuasive effect upon the judges who would be, otherwise, willing to disapply some norms of internal law, according to the latest judgment of the CJEU on the matter. In Romania, the disregard of the decisions of the Constitutional Court can be a ground for disciplinary action against judges.

10. Januar 2022

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The Sanctity of Preliminary References

A national supreme court must not declare a request for a preliminary ruling by a lower court unlawful on the ground that the referred questions are irrelevant and unnecessary for the original case. This has been held by the Court of Justice of the EU (CJEU) in its important decision C-564/19 IS. In addition, the CJEU held that EU law also precludes disciplinary proceedings from being brought against national judges on the ground that they made a reference for a preliminary ruling. The case also raises important questions to what extent preliminary rulings can be effective against rule-of-law decline and make up for political EU institutions’ failure to use adequate EU tools of supervision and enforcement.

26. November 2021

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Plaumann and the Rule of Law

Most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU. One possible response may be to modify the Plaumann-test insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’.

12. November 2021

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