scholarly journals Judiciary Saga in Poland: an Affair Torn Between European Standards and ECtHR Criteria

2020 ◽  
Vol 9 (2) ◽  
pp. 39-79
Author(s):  
Matteo Mastracci
Keyword(s):  
Separation Of Powers ◽  
Judicial Independence ◽  
Executive Branch ◽  
Minor Role ◽  
Constitutional Court ◽  
Parliamentary Election ◽  
National Council ◽  
Court Of Justice ◽  
European Court ◽  
Polish Government

Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.

scholarly journals The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition

2018 ◽  
Vol 19 (7) ◽  
pp. 1839-1870 ◽  
Author(s):  
Anna Śledzińska-Simon
Keyword(s):  
Decision Making ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Executive Branch ◽  
Judicial Reform ◽  
National Council ◽  
Court Administration ◽  
The Supreme Court ◽  
The Impact

AbstractThis article argues that the establishment of the National Council of the Judiciary in 1989 and the empowerment of the general assemblies of court judges gave rise to the idea of judicial self-government in Poland. This very idea of self-government, implying that judges hold important decision-making or veto powers on matters concerning the judiciary, was regarded as a precondition of the separation of powers and judicial independence, neither of which existed under Communist rule. However, the package of laws introduced in 2017 marks the end of judicial self-government as we know it. Not only did it undermine the independence of the National Council of the Judiciary by altering the mode of electing its judicial members, but it also concentrated the power over the judiciary in the hands of the executive branch, allowing for, inter alia, the exchange of key positions in court administration and the reconfiguration of the Supreme Court. This article examines the impact of this “reform” on such values as independence, accountability, and transparency. Investigating the role of judicial self-government in ensuring the principle of separation of powers and democracy, the article concludes with an assessment of the early consequences of the introduced changes for the Polish judiciary.

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

scholarly journals Some changes in the field of civil law

2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Social Value ◽  
European Court Of Justice ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Public Benefit ◽  
Court Of Justice ◽  
European Court

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.

Das PSPP-Urteil des Bundesverfassungsgerichts: Umfang der Übertragung von Souveränität und Überprüfung von Ermessensgebrauch

IG ◽  
2021 ◽  
Vol 44 (3) ◽  
pp. 220-226
Author(s):  
Achim-Rüdiger Börner
Keyword(s):  
Member State ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Federal Constitutional ◽  
National Constitution ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The Eu

In its judgment of 5 May 2020, the German Federal Constitutional Court (FCC) has held that the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), which started in 2015, and the relevant decision of the European Court of Justice (ECJ) of 11 December 2018, holding that the programme is compatible with European Union (EU) law, are ultra vires acts. Indeed, this decision is based on a French understanding of discretion which has previously been adopted in the European Treaties and according to which discretion is controlled only for undue, illegal influence. Today, the Treaties have adopted a review of discretion under the aspects of suitability, necessity, and appropriateness. Moreover, criticism at the decision of the FCC neglects that the accession to and the membership in the EU have to observe the thresholds of the respective national constitution, as its violation is not and may not be expected by the Union or any other Member State. Ultra vires acts of the Union, which remain uncorrected by the Union itself, are subject to disapproval and rejection by the constitutional court of any Member State.

Romania heads for clash with EU over legal sovereignty

2021 ◽  
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Constitutional Court ◽  
Content Type ◽  
The Past ◽  
Court Of Justice ◽  
Recent Developments ◽  
The Government ◽  
The Eu

Significance After accentuated rule-of-law erosion during 2017-19, the new government encouraged hopes that such violations would become a thing of the past. However, last month, the government sacked the ombudsman, while the Constitutional Court declared void a judgement of the EU Court of Justice (CJEU) defending judicial independence. Impacts Recent developments erode hopes that last month’s positive CVM report will lead to Romania’s Schengen zone accession later this year. Failure to replace the ombudsman will not affect the coalition parties electorally, given the politicisation of rule-of-law issues. Subnational courts will be left confused whether to apply the Constitutional Court or the CJEU ruling to legal disciplinary cases.

Separation of Powers and Alternative Dispute Resolution before the European Court of Human Rights

2019 ◽  
Vol 15 (2) ◽  
pp. 247-271
Author(s):  
Cedric Jenart ◽  
Mathieu Leloup
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Separation Of Powers ◽  
Executive Branch ◽  
The State ◽  
The Other ◽  
International Level ◽  
European Court

Alternative dispute resolution procedures before the European Court of Human Rights – The state agent, a member of the executive branch, tasked with representing the respondent state – Judicial and legislative branches of the respondent state limited or bound by concessions by the state agent – Convention framework effectively increases the power of the executive branch to the detriment of the other branches of government in the respondent state – Tension with national separation of powers – Possible solutions on a national and international level

The German Constitutional Court and Preliminary References—Still a Match not Made in Heaven?

2015 ◽  
Vol 16 (6) ◽  
pp. 1491-1508
Author(s):  
Eva Julia Lohse
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
In The Beginning ◽  
The Eu

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth:BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by theBVerfGabout the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of theBVerfGremain the same after this single referral and offer explanations as to why theBVerfGhad for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

The First Preliminary Reference of the French Constitutional Court to the CJEU:Révolution de Palaisor Revolution in French Constitutional Law?

2015 ◽  
Vol 16 (6) ◽  
pp. 1471-1490
Author(s):  
François-Xavier Millet ◽  
Nicoletta Perlo
Keyword(s):  
Constitutional Law ◽  
Major Change ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Review ◽  
Court Of Justice ◽  
Ex Post ◽  
European Court ◽  
The Face ◽  
First Time

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to theacte clairdoctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is,question prioritaire de constitutionnalité(the Priority Preliminary Reference mechanism on issues of constitutionality), theConseil constitutionnelhad a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, theConseil constitutionnelwas unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, theConseilreferred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more arévolution de palaisthan a true revolution in French constitutional law.

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