The Rule of the Courts

Making Constitutional Courts Resilient: The German Example

respect shall be dealt with in the present contribution, but it should also be mentioned here that the European Union is no less eager to protect the rule of law, which pertains to its fundamental values according to Art. 2 TEU. In its ground-breaking judgment Asociação Sindical dos Juízes Portugueses, of 2016, the Court of Justice found that “[t]he guarantee of independence [...] is required not only at EU level as regards the Justices of the Union and the Advocates-General of the Court of Justice [...] but also at the level of the Member States as regards national courts”, 3 considering that they need to adjudicate on acts which relate to EU law. Art. 19 (1) [2] TEU, which requires the Member States to provide remedies that are sufficient for effective legal protection, has since been upgraded to a stronghold of independent judicial systems in a multitude of ECJ decisions rendered against, of all things, Poland and Hungary. 4 Another important and often neglected cornerstone of the rule of law is independence of lawyers. The European institutions and the ECJ are keen to remove unnecessary professional barriers while at the same time keeping an eye on anything that could result in undue political, economic or legal pressure on lawyers. 5 II. The German Federal Constitutional Court, Vigil of the Rule of Law and Democracy In Germany, Constitutional Courts (which exist on the federal level as well as in each of the Länder – a unique feature of German constitutionalism) have long been uncontested as strongholds of the constitutional order. The 3 ECJ, Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses , C-64/16, ECLI:EU:C:2018:117, para. 42. 4 Concerning Poland, cf., in particular, ECJ, Judgment of 5 November 2019, Independence of ordinary courts , C-192/18, ECLI:EU:C:2019:924; Judgment of 15 July 2021, Disciplinary regime applicable to judges , C-791/19, ECLI:EU:C:2021:596. Concerning Hungary, cf., for instance, ECJ, Judgment of 13 June 2024, Relocation of applicants for international protection II , C-123/22, ECLI:EU:C:2024:493. 5 See, e.g., ECJ, Judgment of 24 March 2022, PJ vs EUIPO , C-529/18 P, ECLI:EU:C: 2022:218, but cf. also Council of Europe, Committee on Legal Co-operation, European Convention on the Protection of the Lawyer , adopted on 12 March 2025.

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