The Rule of the Courts

The Role of the Courts in the Protection of the Rule of Law and of Fundamental Rights

III. The instruments for the protection of the rule of law in the European Union The fight which the European Union led against the infringement of its basic judicial principles in Poland and Hungary has shown that both the European Courts and the national courts are core strongholds of EU law in times of crisis. Especially in the case of the Polish judicial reforms, 10 the multitude of the proceedings before the European Court of Justice did not only reveal the degree to which the Polish legislation had deviated from the common European values and principles, but helped to push this development back. The judicial activities of the European and Polish courts contributed to slowing down and to hindering the rollout of the reform legislation. It is true that, apart from the judicial resistance, the European institutions have at their disposal – and have used – several alternative options on the political and the economic level in order to combat the dismantling of the rule of law in the Member States. The constant monitoring and the annual Rule of Law Reports by the Commission are a mainly political instrument which puts states under pressure to explain and justify themselves if their legal systems show any shortcomings in the fields of the domestic judicial system, the state measures against corruption, the protection of media 9 There has to be a concrete and reasonable ground for suspecting a lack of fair trial. See, in the same vein, CJEU (GK), 17 December 2020, Joint Cases C-354/20 PPU and C-412/20 PPU (L and P); 22 February 2022, Joint Cases C-562/21 and C-563/21 PPU (X u. Y). 10 The Hungarian case is different in this regard although the Commission initiated several infringement proceedings as well. See, e.g., CJEU, 6 November 2012, Case C-286/12 – Commission v. Hungary (forced retirement); CJEU (GC), 8 April 2014, Case C-288/12 – Commission v. Hungary (data protection); 6 October 2020, Case C-66/18 – Commission v. Hungary (law on the universities). The strategy, however, seemed to be less clear here. Critical in this respect Halmai , ÖstAnwBl. 2020, 289. In any event, several other proceedings are pending. 1. Political and economic instruments

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