The Rule of the Courts

Claas Friedrich Germelmann

However, it appears that the European Court of Justice will rather sanction the infringement of substantial EU law by the national court and try to mitigate its effects in the national legal order. In an early ruling, which concerned the case of a Polish judge who had without success appealed against his involuntary relocation, it held that the rejection of the appeal by a national judge whose appointment did not comply with the principles of the rule of law should be treated as ‘non-existent’ if this is necessary to enforce the primacy of EU law and the EU legal requirements for an independent judiciary. 53 It did not contemplate the consequences for this judge personally. This is in line with the principle of procedural autonomy of the Member States that can determine themselves the institutional and procedural questions as far as their judiciary and administration is concerned. Only in case of an infringement of the principles of effectiveness and equivalence as enshrined in article 4 para. 3 TEU, 54 they are required to adapt their procedural law. As long as there are no reliable facts suggesting that the judge in question individually and directly infringes the rule of law in his or her rulings, this border does not seem to be crossed. Concerning the binding force of the judgments in question, the European Court of Justice is more willing to curtail their binding force. A recent case concerned two questions on the problem of the participation of a judge in a court panel who had been appointed without due regard for the rule of law. 55 The referring court was dealing with a dispute in a composition of three judges and had asked the CJUE as to whether the participation of the judge in question could affect the impartiality and independence of the entire panel. Furthermore, the decision of a single judge had been overturned by a panel of judges, again consisting of three judges, which included one judge appointed 53 CJEU (GC), 6 October 2021 – Case C-487/19 (W. Ż .); Berlin , JCP 2021, 1847; Simon , Europe 12/2021, 12. 54 See Lecheler/Gundel/Germelmann , Europarecht, 3rd ed. 2026, 46 et seq. 55 CJEU (GC), 9 January 2024 – Joint Cases C-181/21 and C-269/21 (G and B); Rigaux/Simon , Europe 3/2024, 23. b) The effect on the judgment of the national court

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