Rule of Law Update – September 2023



Court of Justice judgments

C‑204/21 – European Commission v Poland ECLI:EU:C:2023:442 5/06/2023 (Commission)

In 2021, the Commission brought an action against Poland regarding the “Muzzle Law” and the Disciplinary Chamber. With this judgment, the Court of Justice decides in line with the Commission’s action, by first confirming that the value of the rule of law is given concrete expression in legally binding obligations, which Member States may not disregard by relying on national legislation or case law. Considering these premises, the ruling is based on the following findings: (i) the Disciplinary Chamber does not satisfy the requirement of independence and impartiality; (ii) the disciplinary regime applicable to judges is incompatible with the guarantees enshrined in the right to effective judicial protection; (iii) the national provisions requiring judges to submit a declaration indicating any membership of an association, non-profit foundation, or political party, and the placement of such information online, violates the rights to protection of personal data and the right to a private life of those judges.

For a complete timeline of this case, consult our Rule of Law Dashboard.

C‑823/21 – Commission v Hungary (Déclaration d’intention préalable à une demande d’asile) ECLI:EU:C:2023:504 22/06/23 (Commission)

With this judgment, the Court of Justice decides in line with the claims brought by the Commission against Hungary regarding the fulfilment of the obligations stemming from the EU Directive on common procedures for granting and withdrawing international protection, as interpreted in the light of Article 18 Charter. The Court recognises that by making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders, of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the Directive.

C-615/20, C-671/20 – YP and Others () and suspension d’un juge) ECLI:EU:C:2023:562 13/07/2023 (Poland)

In 2021, the Disciplinary Chamber of the Polish Supreme Court adopted a resolution authorizing the initiation of criminal proceedings against a judge of the Warsaw Regional Court, suspending him from his duties and reducing his remuneration for the duration of the suspension. This resolution was based on national provisions that the Court of Justice has found contrary to EU law in European Commission v Poland (C‑204/21). It stems from the primacy of EU law that any provisions or national case law contrary to EU law must be disapplied and this disapplication from a national judge cannot trigger his or her disciplinary liability.

C-107/23 – PPU Lin ECLI:EU:C:2023:606 24/07/2023 (Romania)

With this judgment, the Court of Justice further specifies the YP and Others () and suspension d’un judge ruling by stating that the primacy of EU law precludes ordinary national courts from being bound by the national constitutional or supreme courts’ case law which is contrary to EU law. No disciplinary consequences apply to judges who, under such circumstances, disregard the case law of these higher national courts.

General Court judgements

Case T-600/21 – WS and others v Frontex ECLI:EU:T:2023:492 06/09/23

The General Court dismisses the action of several Syrian refugees who had brought a claim for compensation against Frontex. The refugees claimed that Frontex had infringed, in the context of their return operation from Greece to Turkey, its obligations relating to the protection of fundamental rights, steaming from the Charter, Frontex’s Regulation, the Code of Conduct, and Frontex’s Standing Operating Procedure. The Court finds the EU agency not accountable since its task is solely to provide technical and operational support to the Member States, who, on the other hand, have the exclusive competence to assess the merits of return decisions and to examine applications for international protection. 

If you want to know more about the topic, here you can find our “Comment on Frontex and pushbacks: obligations and accountability (2021)”. For a more recent take, check out our “Comment on Frontex’s Status Agreements with Senegal and Mauritania (2023)” (Section D).

Requests for preliminary ruling

C-332/23 – Inspektorat kam Visshia sadeben savet 25/05/2023 (Bulgaria)

This preliminary reference concerns the independence of a Bulgarian judicial supervisory authority, as an institution with the power to call for the imposition of disciplinary penalties on judges. The referring court asks, inter alia, whether granting to such an institution an indefinite extension of powers after the constitutionally stipulated term of office has expired is capable, under Art. 19(1) TEU, of jeopardizing the independence of this authority. If the risk exists, the court further questions what criteria are to be used to assess whether extending the term of office is permissible, and, if so, for how long.

C-369/23 – Vivacom Bulgaria 9/06/2023 (Bulgaria)

This preliminary reference asks whether national rules on jurisdiction over actions for damage, arising from a sufficiently serious breach of EU VAT law allegedly committed by the Bulgarian Supreme Administrative Court, are compatible with Art. 19(1) TEU. The question was raised on the claim that these norms allocate the jurisdiction as court of last instance over these actions to the Bulgarian Supreme Administrative Court, albeit before a completely different chamber than the one these actions are brought against.

C-374/23 – Adoreike 13/06/2023 (Lithuania)

Is a determination of remuneration of judges, which is directly dependent on the political will of the national legislative and executive powers, compatible with the values of democracy and the rule of law, as set out by the Treaties? That is, in essence, one of the questions submitted with this preliminary reference by a Lithuanian court, whose reasoning highlights that the principle of the independence of the judiciary includes the independence of the judiciary’s funding from such powers.

C-390/23 – Rzecznik Finansowy 27/06/2023 (Poland)

After having submitted a previous preliminary reference on the possibility of setting aside final judgments using an extraordinary action to ensure the effectiveness of EU law, the Polish Supreme Court seeks further clarification on the matter. It is questioned if, considering the requirements set in Arts. 19(1) TEU and 47(2) Charter, the mechanism for reviewing final judgments in a Member State may be shaped in such a way that the court of last instance hearing such cases includes persons who (i) are not professional judges (or even lawyers), (ii) whose method of appointment differs from that of judges, and (iii) who do not benefit from all the guarantees of independence provided for in respect of judges.


Tuleya v. Poland – Applications nos. 21181/19 and 51751/20 6/07/23

A well-known Polish judge, who had expressed his views against the judicial reform in Poland, was subject to a preliminary inquiry on suspicion of disciplinary misconduct, which resulted in the lifting of his immunity from prosecution, and suspension from his official duties by the Disciplinary Chamber of the Polish Supreme Court. According to the ECtHR, not only the Disciplinary Chamber failed to meet the requirement of an “independent and impartial tribunal established by law” (Art. 6 ECHR), but there had also been no lawful basis for the measures against the applicant, which interfered with his right to a private life (Art. 8 ECHR) and could be characterized as a strategy aimed at intimidating or even silencing him for his views (Art. 10 ECHR).

Lorenzo Bragrado and Others v. Spain – Applications nos. 53193/21, 53193/21, 53707/21, 53848/21, 54582/21, 54703/21, and 54731/21 22/06/2023

The ECtHR held that there had been a violation of the right to access to court (Art. 6(1) ECHR), in a case concerning the appointment process for membership of the governing body of the judiciary in Spain (“the GCJ”). The applicants, namely judges who were candidates to be new members of the GCJ, appealed with the Constitutional Court complaining about Parliament’s failure to follow through with the process for renewing the composition of the GCJ, but the appeal was rejected as out of time. The ECtHR found that the applicants could not have foreseen how the relevant law on time limits had been interpreted and applied in their case.

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