The Rule of the Courts

Claas Friedrich Germelmann

In the Polish case, the various referrals proved that the Polish courts’ resistance to the elimination of judicial independence had remained unbroken in spite of the threats which the judicial reforms meant for them not only institutionally, but also individually. Nevertheless, European Union law itself and the judicial system of the Union in its entirety were major stabilising factors for the Polish constitutional system. The combination of the preliminary rulings procedure with the infringement proceedings initiated by the Commission and the economic sanctions on the Member State government offered a significant support to the national judges in their attempts to uphold the national judicial system. III. Conflicts and effects within the cooperative judicial system of the European Union The decisions of the European Court of Justice have become less numerous as far as the Polish situation is concerned since the new government has pledged to end the rule of law infringements, but the derailment of the judicial system is still in place. A major problem lies in the fact that the former authoritarian government has created judicial bodies that do not fulfil the necessary requirements for an independent court or tribunal according to the standards of the European Treaties and the European Convention on Human Rights and that the conflict between the European Court of Justice and the Polish constitutional tribunal has escalated. 41 Another unresolved issue is the appointment of the new judges which has been marred by legally dubious procedures. 42

1. The dialogue between the courts and its limits

The European Court of Justice has to strike a balance between the require ments of an unimpeded and independent dialogue with the national courts on the one hand and the interest in upholding the inclusion of Polish courts

41 Infra, 1. 42 Infra, 2.

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