The Rule of the Courts

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

of the dialogue with the Court of Justice under article 267 TFEU, they addressed similar issues as the infringement procedures and were an important contribution in the fight against the dismantling of the rule of law. Directly at the beginning of the crisis, the Polish Supreme Court itself referred two questions for preliminary ruling to the Court of Justice concerning the compatibility of the pensions reform with EU law. 37 Moreover, the same court referred the question to the CJUE as to whether the parts of the reform, which allowed a newly created disciplinary chamber of the Supreme Court to reduce the term of office of Polish judges, undermined the guarantee of judicial independence, given the fact that its members were appointed by the Polish president in cooperation with a council which was established by Parliament. 38 The Court of Justice sanctioned both legislative projects. There are several other examples for this spirit of resistance in the Polish judiciary like the case of a single judge, who had been suspended because he had referred a question about the compatibility of the disciplinary chamber with Union law to the CJEU. His cases had been assigned to other judges after the suspension and one of these judges had, on his part, asked the CJEU the question of whether this redistribution was compatible with Union law, thereby risking his own suspension. The Court of Justice 39 replied that, due to the primacy of EU law, the judge who was removed from office in breach of EU law must continue to be regarded as competent and the judges to whom his cases were assigned must therefore declare themselves incompetent. The Court also confirmed that neither the Polish legislation nor the case law of the Polish constitutional tribunal, which had illegally ruled the requirements of EU law as ultra vires and unconstitutional, 40 were able to change this result. These examples show that the primacy of Union law therefore intensely relies upon the judiciary enforcing Union law even in hard cases of conflict. 37 Cases C-522/18 – Zak ł ad Ubezpiecze ń Spo ł ecznych Oddzia ł and C-537/18 – Krajowa Rada S ą downictwa. 38 CJEU (GC), 19 November 2019, Joint Cases C-585/18, C-624/18 and C-625/18 – Krajowa Rada Sadownictwa. 39 CJEU (GC), 13 July 2023, Joined Cases C-615/20 and C-671/20 – YP and Others. 40 See, infra, III.2.

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