A new strategy for EU law enforcement

By Pedro Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)

The European Commission is regarded as the “Guardian of the Treaties” in the Treaty on the European Union (TEU), and according to its most recent Communication last October 13, it plans to ensure its own role with both a helping hand and watchful eye, all while honouring democratic transparency and (especially) EU law.

The Communication “Enforcing EU law for a Europe that delivers”[1] draws on the fact that the EU is an established community of both law and values. It reminds us that the EU’s best asset is its ability to create a homogenous background for its citizens and businesses alike. EU law lays the foundation and groundwork for a well-functioning internal market, for a more digital and greener Europe, ensures and promotes European values, provides for effective judicial cooperation, security and ultimately succeeds in showing the world the bastion of justice, democracy, and respect for fundamental rights. And bearing the responsibility as the Guardian of the Treaties and EU law, in its own words: “The Commission is committed to stepping up its work to promote and uphold people’s rights, fundamental freedoms and the rule of law.”

Continue reading A new strategy for EU law enforcement

Can a judge’s request for a preliminary ruling be illegal and lead to disciplinary action? – The Court of Justice conclusions in case C-564/19

By Joana Gama Gomes (Master in International and European Law from the University of Coimbra / Researcher at CIDEEFF - Centro de Investigação em Direito Europeu, Económico, Financeiro e Fiscal)

The request for a preliminary ruling was submitted by a Hungarian court in criminal proceedings brought against a Swedish national, for infringement of the provisions of Hungarian law governing the acquisition or transport of firearms or ammunition. Although the facts of this case seem unrelated to the problem at hand, subsequent developments in Hungary during the course of this procedure raised a fundamental issue of EU law.

A declaration of illegality from the Hungarian Supreme Court and disciplinary proceeding against the referring judge led him to ask the Court two crucial questions – whether EU law precludes a national court of last instance from declaring as unlawful a decision by which a lower court makes a request for a preliminary ruling, and whether the principle of judicial independence precludes disciplinary proceedings being brought against a judge for having made such a request for a preliminary ruling.

Continue reading “Can a judge’s request for a preliminary ruling be illegal and lead to disciplinary action? – The Court of Justice conclusions in case C-564/19”

Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 

Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

Continue reading “Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism”

Editorial of April 2022

By Alessandra Silveira (Editor)

Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)


Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

Continue reading “Editorial of April 2022”

Note from MEP José Manuel Fernandes regarding European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling

José Manuel Fernandes (Member of the European Parliament)

The principle of the rule of law is not just one among other basic principles of our democracy. It is more than that: it is a sine qua non condition for the recognition of all other fundamental rights. There is no effective freedom of speech, of association, of conscience, among others, in a community that is not governed by law. Where there is no “rule of law”, there is arbitrariness and lack of security. In such conditions, there is no freedom.

When the “rule of law” is abandoned, explicitly or implicitly, we embark on a path that leads from civility to barbarism, from equality before the law, to the rule of the strongest; from the liberal democratic system built and perfected over the last decades, to alternative, authoritarian regimes that restrict freedoms. Whoever foregoes the “rule of law” necessarily foregoes the fundamental principles on which the Portuguese constitutional order and the European Union Treaties are founded (see art. 2 TEU). Therefore, respect for the rule of law is not an option but an obligation in order to be eligible to be a member of the European Union.

Continue reading “Note from MEP José Manuel Fernandes regarding European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling”

Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 
 

1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

Continue reading “Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser””

The relevance of judicial institutions in upholding the Rule of Law

Gonçalo Martins de Matos (Master’s student in Judiciary Law at University of Minho) 

Between the 15th and the 16th of February 2022, two landmark decisions were issued by two distinct courts: one regarding EU law, by the Court of Justice of the European Union (CJEU), and the other regarding Portuguese law, by the Portuguese Constitutional Court. We shall look at both of them and analyse what they introduce (or establish) regarding the defence of the Rule of Law.

We shall start with the CJEU’s decision. On 16 February 2022, the CJEU rendered its judgment in Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council. Both Cases emerged from two actions for annulment brought by the Republic of Poland and Hungary concerning Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[1]. This Regulation adopted several provisions linking access to EU funding and the respect for the Rule of Law, with a view to “protect the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States[2].

Continue reading “The relevance of judicial institutions in upholding the Rule of Law”

Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law

Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 

The saga of requests for preliminary rulings by Romanian courts on the rule of law and the independence of judges continues, although, under pressure from the Romanian Constitutional Court’s decisions, ordinary judges have begun to refuse to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes a disciplinary violation, a legislative solution that allows total disregard of the decisions of the Court of Justice of the European Union, for fear of disciplinary action. A climate of fear among judges was created by disciplinary actions initiated without any reservations by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU decision of 18 May 2021, but also the judges who proposed and/or referred to the CJEU in this case.

Continue reading “Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law”