The Rule of the Courts

Claas Friedrich Germelmann

enforcement across the borders 5 and a cooperation in civil and criminal matters 6 can only function if the institutional and substantive legal structures of the participating Member States are based on the rule of law and remain effectively in place. Therefore, manipulating the court system in one Member State can be a dangerous threat to the rule of law and the fundamental rights in the entire EU. For this interdependence, the preliminary rulings procedure is a prime example. The evolution, the effectiveness and the unity of European Union law as well as the legal protection of the individual has been eminently supported by the case law of the European Court of Justice and, in particular, its preliminary rulings procedure. It offers the Court the opportunity to enable the application of Union law directly in the Member States’ legal orders. 7 It is therefore dependent on the unimpeded cooperation of independent and impartial national courts. If this condition fails, the uniform application in the European Union is not guaranteed anymore which has a negative impact on the protection of the rights of the European citizens and, in particular, the core principle of non-discrimination. Similarly, in a seminal decision on the European Arrest Warrant, 8 the European Court of Justice stressed the relevance of the principle of mutual recognition and of mutual trust between the Member States’ courts. The independence of the judiciaries and the safeguard of fundamental rights are core prerequisites for a decision granting extradition under this system. At the same time, however, the Court did not regard a general assessment of the changes in the Polish judicial system sufficient in order to deny a request for extradition, but held that the referring court must examine and decide whether in a specific case there is reason to fear a restriction of the right to a fair trial because of the lack of independence of the requesting court. 9 5 See, e.g., CJEU (GC), 6 February 2018, Case C-359/16 – Ömer Altun; 2 April 2020, Joint cases C-370/17 and C-37/18 – Vueling Airlines SA and Others). 6 For the European Arrest Warrant, see infra. 7 See Lecheler/Gundel/Germelmann , Europarecht, 3rd ed. 2026, 209 et seq. 8 CJEU (GC), 25 July 2018, Case C-216/18 PPU – LM; see also Bonneville/Broussy/ Cassagnabère/Gänser , AJDA 2018, 2280; Hummer , EuR 2018, 653; Platon , JDE 2018, 253; Rizcallah , JDE 2018, 348; Sarmiento , 25 (2018) MJ 385 ff.

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