The Rule of the Courts

Claas Friedrich Germelmann

The interferences with the judicial independence have been strictly sanctioned by the European Court of Justice. Apart from interim measures, the infringement proceedings against Poland often involved rather severe financial sanctions, which have attracted a significant political attention and have not remained without the desired reaction. 33 In one of the cases, the CJEU imposed a penalty payment of one million euros per day for failure to comply with the previously issued interim order. 34 It subsequently reduced the penalty by half when the controversial judicial disciplinary chamber was dissolved by the Polish legislature. 35 The infringement procedure has thus proved to be a significantly more effective tool than the sanction procedure under article 7 TEU, which displays all the disadvantages of an easily manipulable political, rather than a clear-cut judicial instrument and which does not provide for any clear perspective as far as sanctions are concerned. 36 After all, the article 7-procedure also failed because it does not do justice to the fact that EU law contains a significant number of particularly clear provisions establishing the requirements of the judicial system of the European Union. At the same time, preliminary rulings procedures played a significant role in pushing back the rule of law infringements in the Polish case. They were initiated by Polish courts and tribunals, which sometimes even defied the prohibition that the judicial reforms had enacted. Within the framework 32 CJEU, 26 March 2020, Joint Cases C-558/18 and C-563/18 – Miasto Ł owicz and Prokuratur Generalny); Rigaux, Europe 5/2020, 19. 33 See, in more detail, Schmidt/Bogdanowicz , (2018) 55 CMLRev. 1061. 34 The Commission may deduct the fines from payments that the Member State is entitled to receive from the Union. See, in more detail, Gundel , BayVBl. 2017, 437 (at 442); Pohjankoski , (2021) 58 CMLRev. 1341 (at 1358 et seq.). 35 CJEU, 21 April 2023, Case C-204/21 P-RAP – Poland v. Commission; Rigaux , Europe 6/2023, 21. 36 Regarding the weaknesses of the procedure under article 7, see Blumann , in: Mélanges Frédéric Sudre, 2018, 71; Griller , in: Grabenwarter/Vranes (eds.), Die EU im Licht des Brexits und der Wahlen: Faktoren der Stabilität und Desintegration, 2020, 149 (at 150). b) Preliminary rulings procedure (article 267 TFEU)

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