The Rule of the Courts

Claas Friedrich Germelmann

system has proven to be rather resilient. Supranational legal obligations and the competences of the European Court of Justice are additional layers of protection in the European Union. A similarly protective instrument are international law obligations like the European Convention on Human Rights. Both sets of rules can reduce the speed with which a national constitutional system can be changed in violation of the principles of the rule of law. However, the existence of a court system is no guarantee for a successful defence of the rule of law. The procedural limits to which the courts are subject remain. The infringement procedure under article 258 TFEU always needs an application by the Commission with a precise subject matter. 58 The Court of Justice cannot start the proceedings on its own. Furthermore, the principle remains that the cooperative relationship between courts under article 267 TFEU always requires a specific legal dispute. The Court of Justice does not act in a purely advisory capacity even if the fundamental principles of the Union are concerned. 59 Even if national courts depend on an application too in order to start their proceedings, the fact that they are directly concerned in their legal capacity offers them opportunities to actively seek the dialogue with the European Court of Justice via the preliminary ruling procedure. However, upholding the rule of law in such a situation depends crucially on the courage and resolve of the judges applying the law and upholding the constitutional values and principles. This has been proven many times by Polish judges who despite the harassment and the backlash continued to refer questions to the European Court of Justice. The role of the courts and their responsibility therefore is a crucial one. The best chances for protecting the rule of law and the fundamental rights, however, exist if the different actors that have competences in this field on the different legal levels 60 act together and with a common resolve.

58 Baratta , (2016) 8 Hague J Rule Law 357 (at 362); Germelmann, DÖV 2021, 193 (at 196); Kochenov/Pech/Platon , RTDEur 2015, 689 (at 698). 59 CJEU, 9 January 2024, Case C-658/22 – Prokurator Generalny. 60 See, supra, III.

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