The Rule of the Courts

Claas Friedrich Germelmann

a) Infringement procedure (article 258 TFEU)

The Commission has successfully initiated several targeted infringement proceedings according to article 258 TFEU in order to combat violations of the principles of the rule of law. The basis and benchmark is above all article 19 para. 1 subpara. 2 TEU. It contains a guarantee of legal protection from which the European Court of Justice rightly derives binding requirements for the organisation of the courts and tribunals in the Member States. In particular, they must be independent and impartial. 22 These requirements follow from the broader definition of the rule of law according to the comparative work of the Venice Commission of the Council of Europe that the European institutions have adopted in the area of EU law as well. 23 Under articles 6 and 13 of the ECHR and the corresponding article 47 EU-CFR, Member States do have considerable leeway in the organisation of their judicial systems, but they are subject to an overall assessment under European law whether the legislation impairs the independence and the impartiality of the judiciary. 24 The infringements of these guarantees perpetrated by the Polish reforms were manifold. They stretched, i.a., from a manipulative reduction of the pension’s age for sitting judges in order to make new appointments possible 25 22 CJEU (GC), 27 February 2018, Case C-64/16 – Associação Sindical dos Juízes Portugueses; Platon , RTDEur 2019, 319; Ippolito , RTDEur 2019, 277; Teyssedre , RTDEur 2020, 23 (at 26 et seq.); Wunderlich , EuR 2019, 557 (at 573 et seq.). 23 European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist, Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016), Dok. CDL-AD(2016)007. See, e.g., Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM(2017) 835 final. 24 CJEU (GC), 19 November 2019, Joint Cases C-585/18, C-624/18 and C-625/18 – Krajowa Rada Sadownictwa; see Karpenstein/Sangi , EuZW 2020, 140 ff.; Simon , Europe 1/2020, 15 ff. 25 CJEU, 19 October 2018 and 17 December 2018, Case C-619/18 R – Commission v. Poland; CJEU (GC), 24 June 2019, Case C-619/18 – Commission v. Poland; see, e.g., Hering , DÖV 2020, 293; Rigaux/Simon , Europe 8/2019, 13; Perego , RDUE 4/2019, 129; Wunderlich , EuR 2019, 557; CJEU (GC), 5 November 2019, Case C-192/18 – Commission v. Poland; Simon , Europe 1/2020, 14.

85