Rule of Law and Supremacy

Question 1

C791/19 Commission v Poland

The case was brought by the European Commission under article 258 TFEU

Answer 1

the ECJ finds that Poland has failed to fulfil its obligations, under the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. failed to uphold the RoL by ensuring the independence of the judiciary.
=> under article 260(1) TFEU. MS must ‘take the necessary measures to comply with the judgment of the Court’
Even with new elections, sacking judges whose nomition is doubtful is delicate because of constitutionnal principles.

1M a day fine then halved when created Professional Liability chamber.

In 2017, Poland adopted a new disciplinary regime concerning judges of the Sąd Najwyższy (Supreme Court) and judges of the ordinary courts. In the context of that legislative reform, a new chamber, the Izba Dyscyplinarna (‘the Disciplinary Chamber’), was established within the Supreme Court and was made responsible, inter alia, for hearing disciplinary cases relating to judges of the Supreme Court and, on appeal, those relating to judges of the ordinary courts.

Taking the view that, by adopting that new disciplinary regime, Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, the European Commission brought an action for failure to fulfil obligations before the ECJ.

Question 2

C-430/21 RS

romania

Answer 2

• it is not against art 19(1) and 2 TEU for the Constitutional Court judgments to be binding on lower courts.
• BUT it is contrary to EU law for the Constitutional Court to prohibit lower courts from applying primacy or from referring questions in preliminary reference to the ECJ (in this case, added danger of disciplinary actions)
• Constitutional Court cannot undermine the duty of sincere cooperation of Art 4(3) TEU

It’s a preliminary ruling from a Romanian judge (article 267 TFEU) =>

Newly establish SIIJ (disciplinary chambers such as Poland)

Preliminary reference – individual convicted in criminal proceedings, contesting abuse by prosecutor and judges. The SIIJ, the RO section for investigating magistrates takes too much time to decide.

• Appeal Court: is SIIJ RoL compliant? ECJ already said no in Forumul Judecatorilor C-83/19 et al…(as also per Commission reports on CVM)
• BUT Romanian Constitutional Court already decided in Dec 390/2021 that SIIJ is constitutional regardless of what the ECJ and the Commission say, and lower courts are to respect this (also issued a menacing press release to all judges…) => judges kept on referring the ECJ but were prosecuted or fired

Question 3

Associação Sindical dos Juízes Portugueses (Case C-64/16)

Answer 3

The Court of Justice ruled that, although the legislation fell within the material scope of Article 19 TEU, it did not violate the principle of judicial independence. The court emphasized that Article 19(1) TEU relates to “the fields covered by Union law,” regardless of whether Member States are implementing Union law. The salary reductions, affecting civil servants beyond judges, were deemed temporary and aimed at addressing Portugal’s excessive budget deficit. Consequently, the court concluded that these measures could not be considered as impairing judicial independence.

decrease salary of portugese judges

Question 4

Polexit – Constitutional Tribunal - 3/21

Answer 4

The Polish Constitutional Court: article 2 and 19 of the TEU are unconstitutional because they allow polish Supreme courts and lower national courts to set aside the Constitutional Tribunal rulings and examine the legality of the appointment procedure. => because of supremacy

Serious blow to the principle of supremacy. This was looked upon as a Polexit in literature. However, this judgement the Constitutional Tribunal is against the C° itself (which claims an independent judiciary

Question 5

Rule of Law Conditionality Regulation

December 2020

“the sound…” => art. 4 para 1
note that poland and hungary brought a case against it C-156/21 et C-157/21

Answer 5

giving the EU the power to withhold funding from member states if they are found to have disregarded the rule of law. After Poland and Hungary challenged the regulation, the Court of Justice of the European Union (CJEU) ruled that the EU could withhold funding so long as the rule of law violations threaten “the sound financial management of the Union budget.” This ruling paved the way for Brussels to begin to withhold funding from Budapest and Warsaw.

cannot be used for democratic backsliding as falls outside the reg scope

used 27 April 2022 against Hungary, observing ‘a systemic inability, failure or unwillingness on the part of the Hungarian authorities to prevent decisions that are in breach of the applicable law, as regards public procurement and conflicts of interest, and thus to adequately tackle risks of corruption’.

• In Poland (which is also subject to article 7 proceedings) could not prove that the lack of indepednance of the judiciary affacted the EU budget.