The Rule of the Courts

Claas Friedrich Germelmann

T HE R OLE OF THE C OURTS IN THE P ROTECTION OF THE R ULE OF L AW AND OF F UNDAMENTAL R IGHTS – A E UROPEAN L AW P ERSPECTIVE

Claas Friedrich Germelmann

I. Introduction

Among the recent crises of the European Union, the attempts to dismantle the independence and impartiality of the national judicial institutions by the governments of the Poland and Hungary has been partic ularly challenging for the European Union. This crisis, which has soon become known as the rule of law crisis, 1 puts a significant burden on the constitutional systems of the European Union and its Member States. Even though the problem has been significantly alleviated after the general elections in Poland and the strategy of the current Polish government to reverse several initiatives of their predecessors, it consists in a significant threat for the rule of law in the European Union in general and in its Member States. In particular, and very practically, it puts the functioning of the dualistic and cooperative judicial system of the European Union to a critical test. This has direct repercussions to the protection of fundamental rights. The role of both the European Union courts and the national courts and tribunals of the Member States in solving the crisis or at least in reducing its dangers therefore appears as one of the most prominent examples for the protective functions of the judiciary for the benefit of the entire consti tutional system of the EU and its Member States in recent times.

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1 Cf., e.g., Waelbroeck/Oliver , CDE 2017, 299.