Rule of Law Update – January 2026

Posted on by commissie_meijers in Rule of Law Update

Policy updates
Rule of law concerns about Spain
Spain has recently come under scrutiny, at EU level, for its actions in relation to the rule of law. In 2025, the Supreme Court of Spain ruled that the Chief Prosecutor had leaked confidential information to the press about a tax fraud case involving the partner of a government opposition figure. The government- who elected the Chief Prosecutor- have continued to proclaim the Chief Prosecutor’s innocence after this ruling.  In June 2025, a plenary debate on the rule of law in Spain took place in the European Commission, specifically focussing on the independence of the Chief Prosecuting Office. This was followed, in October 2025, by a debate within the LIBE Committee on judicial independence and the rule of law in Spain. Resulting from this meeting, the European Parliament’s Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG) will be conducting a fact-finding mission in Spain in February 2026, to investigate the democratic situation there. Whilst the aforementioned ruling is one aspect under consideration, several other worrying emergences have sparked interest. Weaknesses in Spain’s anti-corruption network, the inability to renew the General Council of the Judiciary in Spain, way in which sexual harassment allegations within the governing party (PSOE) are handled and the reliance on emergency powers to pass laws are also highlighted as causes for concern in Spain.

Committee of Ministers commit to the creation of a political declaration regarding interpretation of the ECHR
On 10th December, representatives of 42 State parties to the ECHR declared an informal conference to discuss the interpretation of the ECHR by the ECtHR. This meeting took place in the aftermath of the letter of nine EU Member States of 22 May 2025 in which they expressed their criticisms of the ECtHR’s interpretation of the ECHR, particularly in the context of asylum and migration. Amnesty International contended that limiting the scope of the ECHR risks creating a “hierarchy of people” deserved of different levels of human rights protection depending on their asylum status.

The Meijers Committee responded to this debate, highlighting that constructive dialogue with the Court is both legitimate and valuable but attempts to curtail its interpretative authority undermine the integrity of the Convention system, particularly where these arguments are based on factual misrepresentations. We further warned that preserving the Court’s independence is essential to maintaining trust, stability, and justice across Europe. On 15th May 2026, the next formal session of the Committee of Ministers in Chisinau (Republic of Moldova) will take place, where a draft political declaration on the interpretation of the ECHR is expected to be adopted.

Poland refuses to enforce Digital Services Act
Poland’s right-wing president, Mr Karol Nawrocki, has sparked controversy by vetoing a bill enforcing the EU Digital Services Act in Poland. Nawrocki contended that this bill would “give control of content on the internet to officials subordinate to the government, not to independent courts”. There is a likelihood that the EU will roll out fines for non-implementation, as has already occurred during the Nawrocki presidency, reminiscent of the rule of law mechanism and fund freezing which had already been levelled against Poland. In his criticism of the Digital Services Act- which aims to create a safer online environment- Nawrocki drew the Digital Service Act parallel to the Ministry of Truth from George Orwell’s book 1984.

CJEU judgments
Judgment of the Court (Grand Chamber) of 18 December 2025, Case C-448/23 Commission v Poland ECLI:EU:C:2025:975
Can national constitutional identity override a state’s duty to make EU law effective?
In July 2023, the European Commission, Belgium and the Netherlands brought an action against Poland under Article 258 TFEU, for its failure to fulfil Treaty obligations. This action came about as a result of two 2021 judgments of the Polish Constitutional Court regarding its interpretation that the supremacy of EU law is incompatible with the Polish Constitution. The Commission contended that EU law was not being made effective under Article 19(1) TEU, and that such judicial proclamations are out of suit with the general principles of EU law (primacy, autonomy, effectiveness, uniform application of EU law and the binding effect of judgments).

Additionally, the Commission argued that the Constitutional Court of Poland does not satisfy the requirements of an independent, impartial tribunal previously established by law due to the manner in which judges were appointed. Five judges had been elected on the 8th October 2015 to replace existing judges of the Polish Constitutional Court, however these judges were not sworn in and none of the elected persons took an oath before the president of the constitutional court.

To summarise the contested cases of the Polish Constitutional Court, in case P 7/20 of 14 July 2021, the Constitutional Court delivered its judgment in a case examining the compatibility of the Polish Constitution with the interim measures imposed on Poland pursuant to Commission v Poland (C-791/19). The Constitutional Court declared that these measures were not covered by the principles of direct application or primacy laid down in the Polish Constitution. Therefore, the CJEU’s judgment was declared to be contrary to the Polish Constitution and was declared as having no legal effect as these obligations stemming from the judgment were ultra vires (beyond the EU’s legal authority).

This was compounded by case K 3/21 of 7 October 2021, where the Constitutional Court delivered its judgment stating that Article 1 TEU read in conjunction with Article 4(3), in so far as it {1. permits bodies of the EU to act outside the competencies given by Poland in the treaties; 2, entails that the supreme court of Poland does not have primacy 3. means Poland cannot function as a sovereign state} is contrary to the Polish Constitution. It also ruled that Article 19(1) TEU is contrary to the Polish Constitution in so far as it confers on national courts the competence to disregard the provisions of the Polish Constitution and adjudicate on the basis of non-binding provisions which have been repealed or declared unconstitutional by the parliament. Additionally, this case found that the second sub-paragraph of Article 19(1) and Article 2 TEU in so far as it confers national courts the power to {1. review the legality of the procedure for appointing judges, 2. review the legality of a resolution of a proposal to appoint a judge and to 3. rule on the defective nature of this appointment process and therefore refuse to recognise the judge} is contrary to the Polish constitution.

In this judgment of 18th December 2025, the CJEU ruled firstly that it has exclusive jurisdiction to provide definitive and binding interpretation of EU law. It thereafter found the fact that a national court performs the tasks entrusted to it by the Treaties and complies with its obligations under those Treaties, by giving effect to provisions such as the second subparagraph of Article 19(1) TEU, cannot, by definition, be prohibited. The judgment of 7 October prevents courts from applying Article 19(1) TEU and is therefore manifestly incompatible with the requirements inherent in that provision, meaning Poland has by virtue of judgment P 7/20, failed to fulfil its obligations under Article 19(1). It therefore upheld the first of the Commission’s complaints in its entirety.

Turning to the second complaint regarding the violation of EU principles, the Court noted that even though the EU respects the national identities of the Member States and does indeed allow for some discretion in implementing the principles of the rule of law, this in no way enables the result achieved to vary from Member State to Member State. At [180] the Court notes that ‘the Member States adhere to a concept of ‘the rule of law’ which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times’. It therefore found that provisions prevailing from a domestic legal system- even the constitution- cannot justify a failure to observe Treaty obligations. Further, stemming from the principle of primacy of EU law, a Member State cannot undermine the unity and effectiveness of EU law by relying on national law. Poland, by virtue of the two judgments issued, had failed to fulfil its obligations under the general principles of EU law.

Additionally, these judgments infringed on the binding effect of the Court’s case law. Where a question relating to the scope of the European Union’s competence or to the legality of an act of secondary law is raised before a national court, that court is under an obligation to respect the exclusive jurisdiction of the Court and, if necessary make a preliminary reference, rather than simply refusing to give effect to the decision.

Finally, the CJEU held that the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU since the Constitutional Court does not meet the requirements of an independent and impartial tribunal previously established by law, on account of irregularities in the procedures used to appoint three of its members in December 2015.

Judgment of the Court (Grand Chamber) of 27 January 2026, Case C-271/23  Commission v Hungary (Rescheduling of cannabis) ECLI:EU:C:2026:45
Can a Member State vote in a manner which contradicts a Council Decision establishing the EU position, on the grounds that it considers that position unlawful?
This case concerns the failure of a Member State to fulfil its obligations, due to the fact that Hungary voted against the Council’s common position regarding the rescheduling of cannabis. The Commission brought an action for breach of obligations, alleging that Hungary infringed EU law by involving itself in an area of exclusive EU external competence. Hungary, in defence, alleged that the Council decision was unlawful. The Court ruled in favour of the Commission, finding that Hungary disregarded EU competence in this area, thereby breaching the principle of sincere cooperation. Finally, the Court found that in such an action resulting from a failure to fulfil obligations, a Member State cannot plead that the act in question was unlawful. To take the law into one’s own hands like this is counter to the principle of the rule of law and the principle of solidarity and as such challenges the fundamental basis of the European Union’s legal order. The Member State’s options are either to alert the Commission to these irregularities, or to bring legal proceedings to have incompatibilities eliminated. The only exception to this would be where the act contains serious and manifest defects, therein warranting characterisation as a “non-existent act”.
 
Judgment of the Grand Chamber of 18/12/2025, Case C-136/24 P, Hamoudi v Frontex ECLI:EU:C:2025:977
Ought the burden of proof to shift when asylum seekers allege that a pushback has occurred?
An alleged pushback occurred in April 2020 in the Aegean Sea, off the coast of Samos, a Greek island. Mr Hamoudi claimed to have been denied the right to seek asylum as a result of this pushback. This alleged pushback was orchestrated by the Greek authorities with two operational activities ongoing on the part of Frontex (the EU’s Border and Coast Guard Agency). The applicant asked the General Court to order Frontex to give compensation for the damage he suffered. This was dismissed by the General Court on the grounds that there was insufficient evidence that he was present at that pushback.

In this recent appeal, the Court of Justice set aside the General Court’s decision. The General Court infringed upon Mr Hamoudi’s right to effective judicial protection by not correctly applying the rules on the burden of proof and evidence in the context of a pushback by Frontex. They noted that considering the extreme difficulty faced by alleged victims of a pushback involving Frontex to provide evidence of this, and the likelihood that Frontex possess such proof, effective judicial protection in such cases requires an adaptation in this burden of proof. The General Court must investigate the case in order to assess the truth of that pushback and the presence of the applicant at the pushback, once the applicant has substantiated the occurrence. The General Court should have sought to obtain from Frontex all information the agency possessed.

Leading on from this judgment, the General Court must ensure that in exceptional cases where the application of the rules on the burden of proof and the taking of evidence do not make it possible to guarantee the effective judicial protection of an applicant, it must use its powers to supplement the information it possesses in the case before it, in order to ensure effective protection, which is derived from the rule of law [80]. The General Court must now issue a fresh ruling on the issue, taking in to account the Court of Justice’s proclamations.
 
Judgment of the Grand Chamber of 18/12/2025, Case C-679/23 P – WS and Others v Frontex ECLI:EU:C:2025:976
Can Frontex be held liable for fundamental rights violations in joint return operations?
The EU’s Border and Coast Guard Agency (Frontex) conducted a joint return with Greece in 2016, wherein a family of Syrian nationals were sent to Turkey after expressing a desire to lodge an application for international protection in Greece. The family sought damages, finding this return to Turkey to constitute refoulement which infringed on their fundamental rights, in part by Frontex for their role in the return operation. The family claimed Frontex had failed to comply with its obligation to ensure respect for fundamental rights and the principle of non-refoulement.

This appeal came before the Court of Justice, which largely set aside the prior judgment of the General Court. The General Court had failed to correctly assess the role of Frontex in the return operation. Frontex was not exempted from an obligation to verify that return decisions exist for all the persons being returned, and other obligations on Frontex applied too. Additionally, during the return operations, Frontex as well as the Member State, can be held accountable for infringements of rights which occur.

Additionally, the Court took liberty to proclaim on Frontex’s complaints mechanism, finding at [172] that the mechanism is not a precondition for the exercise of a judicial remedy. The Court essentially says that the complaints mechanism exists for a different purpose than the judicial procedure – not (necessarily) to guarantee an effective remedy. Now the General Court must provide a new ruling on the matter, taking in to account the obligations drawn out by the Court of Justice of the EU which apply in joint return operations.

Judgment of the First Chamber of 22/01/2026, Case C-554/24 P, Poland v Commission (Retroactive annulment of interim measures) ECLI:EU:C:2026:28
Can a settlement agreement extinguish obligations to pay penalty payments retroactively?
In this appeal before the CJEU, Poland claimed that the General Court had erred in its ruling that it must pay the penalty payments for non-compliance which accrued up until Poland entered a settlement agreement with the Czech Republic. The General Court had found that this settlement agreement did not extinguish existing obligations to pay penalty payments, therefore refusing Poland’s request to annul the corresponding Commission decisions. The CJEU agreed with the General Court, striking down Poland’s appeal.

The obligation to pay the daily penalty to the EU budget is intended to ensure compliance with interim measures and to guarantee the effectiveness of EU law. This is an essential component of the rule of law, as the CJEU noted on several occasions in the judgment (see for instance [71]). A judgment imposing periodic penalty payments may only be lifted of its effects for the future, not retroactively. Additionally, a settlement agreement cannot retroactively extinguish these penalty payments.
 
ECtHR judgments
Danileţ v Romania, 15/12/2025, (Application number 16915/21) (Grand Chamber)
The balance between a judge’s freedom of speech online, and the duty to remain impartial
In January 2019, Mr Danileț, a judge at Cluj County Court in Romania, posted two messages on Facebook to his 50,000 followers. His messages were critical of perceived efforts to attack and discredit public institutions such as the public prosecutor’s office and the police. In one of these messages, he asks “Do people realise what it would mean to weaken [these] institutions or, worse, to bring services, the police, the courts and the army under political control?”. This post was published in the context of the extension of the Army Chief’s term in office by presidential decree. For publishing these comments, he received a sanction from the Disciplinary Board for Judges for failing to comply with his duty of discretion and tarnishing the image of the justice system. After an unsuccessful appeal to the High Court, the applicant brought a case before the ECtHR, alleging that the sanction he received was a disproportionate interference with his right to freedom of expression enshrined in Article 10 ECHR.

The facts of this case afforded the ECtHR to clarify the general principles of its case law on the scope of freedom of expression for judges on social media, and to refine the terms of the balancing act between competing rights and interests.

The Court assessed whether the breach of Article 10 was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. Having found that the provisions were formulated in law with sufficient precision and pursued a legitimate aim, the Court moved to consider whether the disciplinary measure was necessary in a democratic society. The Court considered that, whilst judges enjoy a right to speak out regarding the protection of the rule of law, this right is complementary with the duty of discretion which protects the impartiality of the justice system. However, in the present case, the applicant’s messages did not upset the balance between judicial involvement in society to defend the rule of law and the need for him to be seen as impartial. Participating in a political controversy, as had occurred in the first message, did not prevent the judge from expressing himself on a matter of public interest. Moreover, judges have the right to speak out about issues which the public have a legitimate interest in being informed about, such as, in this case, democracy and the rule of law. In this context, Article 10 provides a high level of protection.

The interference with the applicant’s rights was not based on “relevant and sufficient” reasons and therefore did not acquaint to a “pressing social need”. Such deterrent sanctions had the potential to create a chilling effect on the judicial profession. Therefore, a violation of Article 10 was found.

AR v Poland, 13/11/2025 (Application no. 6030/21) (First Section)
Whether publishing a high-profile judgment three months after it is ruled upon is in breach of foreseeability rules.
This case concerned Polish restrictions on abortion rights and legal certainty. The ECtHR was tasked with determining whether delays by the Polish Constitutional Court in publishing it’s judgment on abortion had caused a violation of the right to respect for private and family life (Article 8). The Polish court’s judgment took place on 22 October 2020, declaring unconstitutional provisions of the Law on family planning, protection of the human foetus and conditions permitting the termination of pregnancy (which allowed for abortion in cases of foetal defects and abnormalities). However, it was more than three months later that this judgment was published. The applicant was 15 weeks pregnant, with a foetus with a genetic defect, when the ruling was shared. Due to the considerable uncertainty between the judgment and publication of the judgment, she had to go abroad for an abortion. It was unclear whether the restrictions were already in place or if an abortion could still occur.

The ECtHR found that the interference was not in accordance with the law because of lack of foreseeability and the composition of the bench of the Constitutional Court. To be in accordance with the law, two conditions must be fulfilled. Firstly, the measure must have basis in domestic law and be compatible with the rule of law, and secondly, it must be in accordance with the law in the sense that it is accessible to the individual and has foreseeable consequences [108-109]. These two conditions are designed to safeguard against arbitrariness. Due to the uncertainty prevailing due to the delay in publishing the judgment, the violation was not in accordance with the law.
 
Ilievska and Zdraveva v. North Macedonia, 13/11/2025 (application nos. 19689/21 and 42794/22) (Second Section) and Ribarev v. North Macedonia, 13/11/2025 (application no. 39987/22) (Second Section).
Is it necessary to be able to appeal a judge’s dismissal decision?
Several judges were dismissed from office by the State Judicial Council in North Macedonia in 2020, 2021 and 2022. This occurred after appeal panels quashed the initial decisions of the State Judicial Council (SJC) to dismiss them, and remitted the case to the SJC. Under the procedure in effect here, once a case is remitted, it is not possible to appeal subsequent decisions, including this dismissal. The subsequent appeals were not assessed on the merits and this rendered the first appeals before the Appeal Panels devoid of any meaning. Since it was not possible to subsequently review the decisions to dismiss the judges taken after the remittal, it was not possible to assess whether the SJC had indeed complied with instructions given by it or considered the findings of the initial appeals which had quashed the initial dismissal decisions.

The ECtHR highlighted that a full appeal here was required to uphold the rule of law and ensure public confidence in the judiciary. The procedure as it stood restricted the applicants’ right of access to court, impairing the very essence of this right under Article 6 (1). When assessing the justification for excluding access to the court, the Court considered it necessary to highlight the ‘strong public interest in upholding the independence of the judiciary and the rule of law’ [102] which should have meant that the SJC’s assessment was reviewed for its completeness.

Manukyan v. Armenia 13 November 2025, (application no. 5778/17) (Fifth Section)
The chilling effect of security service threats
This case concerned an Armenian national, who was elected to the standing governing body of an opposition political party in 2014. He was asked to cooperate with the National Security Service of Armenia around this time. He refused to cooperate and threats were made regarding consequences of such refusal. The applicant submitted a report to the Prosecutor General but no criminal proceedings were brought. The applicant complained of an unjustified interference with his private and family life and of a lack of an effective investigation. 

The ECtHR found that the threat levelled against the individual by the National Security Service had been of “a serious nature and capable of causing well-founded fear, anxiety and a feeling of uncertainty, affecting the applicant’s psychological integrity and well-being.” They were further deemed to have the potential to cause a chilling effect on free speech and political and career activity for the individual. Whilst voluntary engagement with security services is permitted, the use of coercive methods was ‘fundamentally at odds with the rule of law’ [61]. Thereby, a violation of Article 8 ECHR was found.

Stanev and the Bulgarian Helsinki Committee v. Bulgaria 18/11/2025 (application no. 50756/17) (Third Section)
Public access to information and civil society organisations
This case concerns the denial of access to information of public interest, regarding reports of migrant deaths, which was in the possession of the public prosecutor’s office. In 2016, the applicant, a writer for the Bulgarian Helsinki Committee sought to ascertain whether criminal investigations had been opened following press reports of two incidents of migrant deaths at the Bulgarian Turkish border. Their request for information was rejected by the Deputy Prosecutor General, who claimed the law on public information access was not applicable in this context.

The ECtHR stressed that civil society organisations enact a function through which the public can verify the state authorities’ compliance with the rule of law. As such, refusing to allow access to such information and limiting analysis to formal application of legislation without considering the public interest or harm of non-disclosure violated Article 10 ECHR.

Another case about public access to information occurring in recent months is Khaghaghutyan Yerkhosutyun v Armenia, where Article 10 was also found to be violated. In this case, domestic authorities refused to provide an NGO with information about fatalities in the Armenian armed forces between 1994 and 2014 on national security grounds.
 
Selima v Albania 25/11/2025 (Application no. 37896/19) (Third Section)
Pleading one’s case in response to dismissal on the grounds of new vetting process
A judge was dismissed in Albania as part of a new “vetting process” as part of the Albanian justice system’s package of reforms. An aspect of this vetting process was assessment as to the individual’s involvement with organised crime groups and individuals. Thereafter, a report concluded that the applicant was not fit to remain in office due to information alleging he was involved in corrupt activities, which was also upheld on appeal. The applicant claimed before the ECtHR that the vetting process was unfair and the facts underlying the decision were not disclosed, so as to violate Article 6 ECHR.  The Court found a violation of Article 6(1), because the applicant had been insufficiently informed as to the allegations against him and was in part not afforded the chance to plead his case in response to these findings.
 
Europa Way SRL v Italy 27/11/2025 (application no. 64356/19) (First Section)
Whether a new bidding process for digital broadcasting violates the right to free expression.
In this judgment, the ECtHR was asked to rule on whether abnormalities in the bidding process for the allocation of frequencies for digital broadcasting violated Article 10 (the freedom of expression). In 2011, the applicant had taken part in a bidding process to allocate frequencies for digital broadcasting. However, the process was suspended by ministerial decree and replaced by a fee-based selection procedure. National courts found that the new law allowing this change in the selection procedure undermined the regulatory powers of the regulator (AGCOM) and thereby undermined its independence. Furthermore, the new framework therefore did not provide adequate safeguards against arbitrariness, in breach of the applicant company’s freedom to express information.

Vujović and Lipa D.O.O. v. Montenegro (no.2) 27/11/2025 (application no. 43050/22) (First Section)
Whether slow legal procedures can violate the right to property
In this case, the Court considered whether there had been a violation of Article 6 (the right to a fair hearing within a reasonable time) and Article 1(1) (protection of property). Insolvency proceedings had been remitted from the Constitutional Court to the Court of Appeal of Montenegro on multiple occasions, wherein the decisions of the Court of Appeal had been quashed on the grounds that they were inadequately reasoned or arbitrary. The Court of Appeal had failed to comply with the constitutional court’s decisions on four occasions, and it was only upon the fifth re-examination that the Court of Appeal complied with the decisions of the Constitutional Court.

The ECtHR noted that the ‘repeated re-examination of a single case following remittal may in itself disclose a serious deficiency in a given State’s judicial system’ [84]. Due to the excessive length of the proceedings, a violation of Article 6(1). Further, by the time a decision was made, most of the applicant’s property had been sold.  The Court therefore found that the applicants had not been afforded the opportunity to effectively challenge the interference with their possessions, constituting a violation of Protocol 1 Article 1.

Stephan Kucera v. Austria 9/12/2025 (application no. 13810/22) (Fourth Section)
Whether trial by video link during Covid period was violated the right to a fair hearing
This case concerns administrative criminal court proceedings in Austria, which occurred during the Covid-19 pandemic. During this time, proceedings took place via videolink. The applicant claimed that his right to a fair trial and legal assistance (Article 6 ECHR) had been violated as he was not permitted to participate in person and the public had been excluded. Whilst the Court agreed that it is a fundamental principle enshrined in Article 6 § 1 that an individual is afforded an oral, and public, hearing [48], it found that trial by videolink had a basis in law and pursued the legitimate aim of minimising the spread of Covid-19. The Court noted that, ‘while the physical presence of an accused in the courtroom is highly desirable, it is not an end in itself: it rather serves the greater goal of securing the fairness of the proceedings, taken as a whole’ [62]. The Court therefore concluded that the applicant was able to enjoy his rights despite the alternative nature of the proceedings, finding no violation to have occurred.
 
Tsaava and Others v. Georgia 11/12/2025 (applications nos. 13186/20, 16757/20, 20129/21, 20175/21 and 39382/21) Grand Chamber
Whether dispersing a protest with rubber bullets was justified.
In this case, the Grand Chamber ruled on the dispersal by police of a major anti-government protest in 2019 in Georgia. This protest was sparked by a key figure of the Russian Duma sitting in the Speaker’s Chair at the Georgian Parliament and giving a speech in Russian. Many people sustained injuries at this protest from the use of rubber bullets or suffered assaults by police officers. The investigation into this had still not led to a thorough assessment of the circumstances surrounding the protest and its suppression and no findings had been made about the alleged ill-treatment of the participants or the identity of the agents who had used excessive force.

The investigation was deemed not effective, resulting in a violation of the procedural aspect of Article 3 ECHR.
Furthermore, the ECtHR found that the police had used rubber bullets as a general crowd control tool, rather than in response to specific conduct. The Georgian legal framework was also found to have significant shortcomings, requiring rectification so as to at the very least lay out safety requirements for the deployment of kinetic impact projectiles by police in times of demonstrations, so that they are only used in a targeted manner.

Additionally, preventing safe and free reporting of the protests by journalists was not justified. The Court found any use of force by the authorities which interfered with their ability to gather information was an Article 10 interference. Due to lack of justification, this resulted in a violation of Article 10 ECHR.

Whilst it could be said that there was justification for dispersing the protest due to where it occurred, outside the parliament building and the threat of this being stormed, the relatively limited group of protestors trying to storm the building was insufficient to justify depriving the rights of many thousands of people  to demonstrate. Further, the way in which the dispersion was enacted was not justified. There had been no dispersal order and no warning about the usage of rubber bullets. The usage of rubber bullets was an unjustified use of force. The ECtHR thereon found a violation of the substantive aspects of Article 3 ECHR and Article 11 ECHR.

Anti-Corruption Foundation (FBK) and Others v. Russia 16/12/2025 (application no. 13505/20 and 138 others) Third Section
Whether Russia can be held accountable for dismantling political plurality prior to its exit from the ECHR.
This case concerned a slew of measures from 2019 taken against affiliates and connections of Russian opposition figure Aleksey Navalnyy, who died as a result of poisoning whilst imprisoned in 2021. These measures included mass searching of homes, freezing of bank accounts, designating individuals as “foreign agents” and “extremists” and seizing property. As a result of these measures, some of the applicant organisations faced dissolution and those associated with them faced being labelled criminals. These measures were part of a campaign to eliminate democratic opposition, found the ECtHR, and to destroy political pluralism in Russia. The alleged reasoning behind the measures lacked evidentiary basis.

Having found that the measures intervened with the applicants’ Convention rights, the Court turned to consider whether the measures were accompanied by protections against arbitrariness (“in accordance with the law”). The applications of the investigators to the district court were couched in broad terms, yet still approved by the court. In essence, the Court found that there had been no effective judicial scrutiny and that the court served to ‘rubber-stamp’ the investigator’s requests. As such, the review was solely formalistic and did not protect against arbitrariness [73]. Further, in respect of the freezing of funds, the Court found that the express statutory requirements of individual justification and periodic review was bypassed. Depriving the applicants of legal protection and foreseeability meant Russia had failed to uphold the principles inherent in the rule of law.
 
The ECtHR held that in respect of all 139 applications, Articles 8, 10, 11, 18 and Article 1 of Protocol 1 ECHR had been violated. Whilst Russia is no longer party to the ECHR, it must still enforce judgments concerning facts occurring before 16 September 2022.

Gondert v. Germany 16/12/2025 (application no. 34701/21) Fourth Section
Does failure to issue a preliminary ruling violate the right to a fair hearing?
In this case, a highest-level national court in Germany failed to make a preliminary reference to the CJEU. Gondert had explicitly requested such a referral and failed to obtain reasons for why it had been refused. With no right to appeal at the highest tribunal level, the ECtHR found that the court was required to give reasons for the rejection, culminating in a violation of Article 6 § 1 ECHR (right to a fair hearing).

The violation turned on the fact that the reference had been explicitly requested and yet refused without elaboration. Whilst the Court recognised the strain of high caseloads and the difficulty in balancing speed with reasoned decisions, the Court found that procedural fairness required further elaboration here, at a minimum indicating which of the at least indicate the CILFIT criteria the rejection was based on [44].
 
Biliński v. Poland 15/01/2025 (application no. 13278/20) First Section
Relocation of a judge to a different court and the right to a fair trial
In this case, the ECtHR was tasked with ruling if the transfer of a Polish judge between two divisions of the same court violated the ECHR. Mr Biliński had been transferred between two divisions of the same court and had subsequently appealed this decision. He was concerned that his transfer had been conducted arbitrarily due to the fact that he had faced criticism from politicians for his rulings in certain cases, and that the judge who had ordered his transfer had previously served under the Minister of Justice and had been appointed to his present position by this same minister.

The applicant claimed that he had been deprived of an effective review of the transfer by an independent and impartial body, as the NCJ who conducted the review were not independent, and the law stipulated that he could not review the decision in front of a court. The Court was particularly concerned by the lack of reasoning for the decision, considering in particular that the initial decision ordering the applicant’s transfer was annulled by the President of Warsaw’s Regional Court, as the NCJ knew. Additionally, at no point had the applicant been given the opportunity to be heard. Finally, the Court had already ruled in a prior case that the recomposed NCJ (which faced reform under the 2017 Amending Act) was not an independent body, and that domestic law specifically excluded the judicial review of the decisions of the NCJ. The Court upheld the complaint of the applicant, finding that the review of the decision to transfer the judge had not been reviewed by a judicial body, thereby impairing Mr Biliński’s access to court, culminating in a violation of Article 6 § 1 ECHR.

Rule of law update – October 2025

Posted on by commissie_meijers in Rule of Law Update

Policy updates 

World Justice Project’s Rule of Law Rankings: overall decline for EU Member States  

The World Justice Project’s 2025 Rule of Law Index has revealed that in over two-thirds of EU Member States, adherence to the rule of law has declined in the last year. Slovakia and Hungary displayed a marked decrease in score, with Hungary declining on all eight assessed factors. This index ranks countries on their performance in eight core areas, including the absence of corruption, adherence to fundamental rights, criminal justice and regulatory enforcement. In contrast, several northern Europe countries were placed at the top of the global rankings, with Denmark revealed as the best adherer to the rule of law in the world. Poland is also considered to have improved since the last assessment. 

Liberals in the EU Parliament call for Bulgaria to lose EU funding over rule of law violations 

In Bulgaria, the recent arrest and detention of the Mayor of Varna, Blagomir Kotsev has led to condemnation of the state of the rule of law in the country, leading to calls for EU funding to be withdrawn. The arrest occurred shortly before a municipal budget vote. Renew Europe notes that the General Prosecutor’s Office and the Anti-Corruption Commission have increasingly been utilised as tools to supress political opposition in Bulgaria. Moreover, Eurobar statistics on the perceived independence of the judiciary ranks Bulgaria at below 30%.

Adjacent to this, criticism has ensued in association with Borislav Sarafov’s tenure as Acting Prosecutor General of Bulgaria. Bulgarian law states that an acting prosecutor cannot perform these temporary duties for more than 6 months, thus the extension of his role was in circumvention of procedural law. Whilst the Criminal Chamber of the Supreme Court of Cassation ruled that Sarafov’s powers ceased after the 6-month limit of his role (21st July 2025), his appointment remains in effect.  

Violence against Judges 

Earlier this year, the ECHR recalled that personal attacks on judges as a result of their decision making are attacks on the integrity and independence of the judiciary, and thus on the rule of law itself. Whilst their comment followed from the delivery of conclusions of Kovačević v. Bosnia and Herzegovina in June 2025, recent events in Albania leave these comments once again resounding.  

On 6 October 2025, Judge Astrit Kalaja was shot in the Tirana Court of Appeals in Albania, resulting in his death. The alleged perpetrator was involved in a long-standing property dispute before the Court. This attack has led to urgent calls by the International Commission for Jurists for an effective and independent investigation into the incident. The Organisation for Security and Co-operation in Europe, OSCE in Tirana added that ‘attacks on judges are a direct attack on the rule of law and democratic institutions’.  

CJEU judgments 

Judgment of the Court (Second Chamber) of 1 August 2025, Joined case C-422/23, C-455/23, C-459/23, C-486/23 and C-493/23 (Daka) ECLI: EU:C:2025:592  

Administrative need as justification for relocation of judges 

This preliminary ruling unified 5 requests from Poland on the interpretation of Article 19(1) paragraph 2 TEU read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (the Charter). The circumstances of the case involved the appointment of approximately 20 judges of the Supreme Court to sit in the Civil Chamber for three months without their consent or prior consultation, and without the issuance of reasons for this decision.

The officials who had placed the judges in these temporary positions were themselves appointed irregularly to the Supreme Court. However, the CJEU found that the fact that the individuals responsible for relocating the applicants were appointed under conditions incompatible with Article 19(1) TEU did not alone lead to the conclusion that the judicial panels they formulated themselves non-independent.

The judgment found that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the president of a national court is not precluded from temporarily assigning judges to a different court, including one dealing with matters beyond the judge’s specialisation and where no recourse to appeal the decision is available, so long as there are legitimate reasons of proper administration present and there is legal basis for the decision. This is the case so long as the assignment is temporary, does not result in the judges being removed from the cases they are responsible for, and does not call in to question the judges’ assignment to their chambers of origin. The Court also took in to consideration the fact that this relocation did not appear to be targeting specific judges who had criticized the Polish judicial reforms.

Judgment of the Court (Fourth Chamber) of 4 September 2025, Case C-225/22 (AW ‘T’) ECLI:EU:C:2025:649 

Whether higher courts bind lower courts, where the former lacks adequate impartiality 

This preliminary ruling arose from proceedings in Poland, where the Supreme Court of Poland had set aside an appeal brought by the Prosecutor General of Poland. The crux of the matter pertained to the ability of a lower court to assess the independence and impartiality of a higher court, where the CJEU had already ruled that there were inadequacies in the independence of this higher court. 

The CJEU was tasked with ruling on the meaning of the second sub-paragraph of Article 19(1) TEU in light of Article 47 of the Charter and the principle of primacy of EU law. It interpreted this as precluding legislation and case law of a Member State which requires a national court to comply with a decision of a higher court, where this higher court has been deemed by a decision of the Court of Justice to fail to meet the requirements of independence, impartiality and compliance with previously established law. National law may not prevent the lower court from verifying the regularity of these judges on the basis of the same factors as were taken into consideration by the CJEU. Therefore, any decision of a judicial body of last resort which fails to meet these requirements, referring the case back to a lower court for re-examination, has no legal effect.  

Hearing of 14 October 2025, Case C-225/24 (Parliament v Commission) 

Whether the Commission was correct to grant Hungary funding, despite rule of law deficiencies 

This hearing concerned the Commission’s decision to approve Hungarian funding programs of a value of more than €2 billion, despite deficiencies in the Hungarian judicial system in terms of respect for the rule of law and the principle of judicial impartiality. The European Parliament brought an action against this decision, seeking its annulment. They highlighted that one aspect of Hungary’s rule of law deficiencies is a points system for judicial appointment which prioritizes those coming from the executive branch.  

Before a suspension of funds can be lifted under the Common Provisions Regulation 2021, it must be established that the Charter Horizontal Enabling Condition is fulfilled. In the European Parliament’s action -originally brought in 2024- they alleged that the Commission had made a manifest error of assessment), had failed to state its reasons for the decision, and had misused its powers. This third plea alleged that the decision the Commission had made was ‘a trade-off for Hungary lifting its veto over certain urgent decisions that required unanimity in the European Council’. 

In this hearing, the Parliament drew attention to the fact that the Commission had rejected a decision in relation to Hungarian access to funds under the RRF on the basis of outstanding rule of law concerns, whilst, on the same day, lifting the suspension of funds under the Common Provisions Regulation on the basis of apparent compliance with the rule of law. The Commission responded that this could be explained by the differing legislative requirements to fulfil these respective provisions and warded against infringing on the state’s margin of appreciation in an manner resembling to a judicial “micro- regulator”. The Advocate General opinion is expected in February 2026 and the judgment thereafter. 

ECtHR judgments   

ECtHR judgment of 26 August 2025, Case Kroi and Nocka v Albania (Application no. (Application no. 84056/17) 

Lack of perceived impartiality of the Court  

This case concerned the impartiality of a tribunal of an Albanian Constitutional Court, whose judges had adjudicated a case, as members of the Supreme Court in 2012, and once again participated in the constitutional proceedings in 2017. The case concerned property rights after the annulment of a property restitution decision.  

By the nature of their adjudicative role, the judges effectively decided whether they themselves had contributed to the breach of the applicants’ constitutional rights. The Court found that the composition of the Court created an objectively justified fear of partiality. The Court therefore found that structural deficiencies in the Court’s composition constituted a violation of Article 6 § 1 ECHR. In coming to this conclusion, the Court noted that two of the judges’ tenures had ended more than 15 months before the adjudication of the applicants’ case, however, their successors were only appointed 3.5 and 4.5 years later, respectively.

ECtHR judgment of Seppern v Estonia of 16 September 2025, (Application no. 31722/22) 

Procedural safeguards for intercepted phone calls used in court 

This case concerned the right to a fair hearing (Article 6 ECHR). An applicant’s trial statements were deemed unreliable due to the unlawful means by which evidence was obtained – through secret telephone surveillance. The Court found that the reasoning justifying this secret surveillance was neither arbitrary nor manifestly unreasonable, therefore concluding that Article 6 had not been violated. Because the Estonian court had only limited access to the full transcripts of the intercepted telephone calls, this served as a procedural safeguard. Furthermore, the fact that the applicant had the capability to challenge the use and content of these intercepted telephone calls in a thorough and non-arbitrary manner further restricted the infringement on the right to a fair hearing. Additionally, the Court took into account that these reports were not decisive for the outcome of the proceedings. 

ECtHR judgment of Misiunas v Lithuania of 7 October 2025, (Application no. 38687/22) 

Effective remedies and judicial appointment 

This case concerned a former judge who, after serving in the Government, applied to return to the judiciary once his governmental mandate had ended. His request was rejected by the President of the Republic of Lithuania. When the applicant challenged this decision, the domestic courts refused to hear the case, reasoning that the appointment and reappointment of judges were matters solely within the discretion of the President. The Strasbourg Court held that this refusal deprived the applicant of an effective legal avenue to contest the decision, thus violating Article 6 § 1 (the right of access to a court). Furthermore, the Court found that there were no exceptional circumstances to justify the total absence of judicial oversight over the President’s decision. 

ECtHR judgment of 14 October 2025, Case Tsatani v Greece (Application no. 42514/16) 

Impartiality in the context of disciplinary hearings 

In this case, the ECtHR found a violation of Article 6 § 1 (right to a fair trial) in respect of an disciplinary investigation into a prosecutor of Athens Court of Appeal. A disciplinary investigation was brought by The President of the Court of Cassation because Ms Tsatani had terminated criminal investigations. However, this disciplinary investigation and the surrounding activities of the President of the Court of Cassation jeapardised the impartiality of the hearing. Specifically, the proceedings were announced in parliament, despite being confidential and disclosed in the form of a press release. The leader of the investigation personally dismissed Tsatani’s motion of recusal against her, claiming it was ‘abuse of process’ and further scrutiny of Tsatani’s allegations against VT were not addressed by the disciplinary tribunal. The Court found that VT’s statement was in itself incompatible with the notion of an ‘independent and impartial tribunal’. Therefore, the proceedings violated Article 6 § 1. 

ECtHR judgment of 16 October 2025, Case of M.S.L., Tov v Ukraine (Application no. 18049/18)   

Lack of assessment as to the legitimacy of sanctions imposed by Ukraine  

This case concerns financial sanctions placed upon the applicant company under the Ukrainian Sanctions Act, and the lack of means to challenge these measures. Sanctions were placed on organizations deemed to threaten Ukraine’s national interests and security. The Court considered whether the legal basis for the imposition of sanctions met the “quality of law” requirement, in terms of precision and foreseeability. The Court found that the measures towards the applicant company were not sufficiently reasoned. The Court noted that even when national security is at stake, the rule of law requires that independent review mechanisms must always be possible where fundamental rights are at stake. A lack of ability to challenge the government’s decree that national security was at stake is tantamount to the arbitrary encroachment on Convention rights. Thus, as the Ukrainian judiciary failed to examine the legitimacy of the basis of the measures against the applicant company, there were inadequate guarantees against arbitrariness. Therefore, the Court found a violation of Article 1 of Protocol No. 1 to the Convention and Article 13 (the right to an effective remedy). In coming to this decision, the Court took into account the six-year delay in which no court had assessed the legitimacy of the sanctions imposed on the applicant.  

Rule of Law update – July 2025

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The European Commission publishes the sixth annual Rule of Law report 

For the sixth time, the European Commission examines the rule of law developments in all Member States. The report assesses four different components: the justice system, the anti-corruption framework, media freedom and pluralism and institutional checks and balances. Furthermore, the report also contains country chapters on a number of EU candidate countries. 

This year’s report shows that there is a positive direction in a lot of the Member States. This is because important reforms have been adopted in the four key areas covered by the report. While in some Member States challenges remain to be addressed, countries are overall engaged with the process and have addressed a considerable number of the recommendations from the 2024 report. 

The European Commission publishes the EU Justice Scoreboard for 2025 

The EU Justice Scoreboard is part of the EU’s Rule of Law toolbox and represents an annual comparative information tool. It aims to assist Member States in improving the effectiveness of their national justice systems by providing objective and comparable data on different indicators relevant for assessing the efficiency, quality and independence of the justice systems in the EU Member States. 

The updated figures of the 2025 EU Justice Scoreboard include data on accessibility to justice for victims of crime, victims of violence against women/ domestic violence and persons at risk of discrimination and older persons, as well as on the digitalisation of justice. 

CJEU judgements:  

Judgment of the General Court (Grand Chamber), 14 May 2025, Stevi and The New York Times v Commission, T-36/23 

Commission’s refusal to release text messages annulled 

In this judgement the General Court ruled that the decision of the Commission to refuse a journalist access to the text messages between President von der Leyen and the CEO of Pfizer is annulled. 

The Commission rejected the application on the basis that it did not hold the requested documents. The Court underlined that the aim of the Access to Documents Regulation is to give the fullest possible effect to the right of public access to documents held by institutions. 

It further underlined that, as the applicants have succeeded in rebutting the presumption of non-existence and of non-possession of the documents in question, the Commission cannot merely state that it does not hold the requested documents. Therefore, it must provide credible explanations as to why the documents cannot be found. 

Judgement of the Court (Seventh Chamber) of 5 June 2025 in Case C‑762/23 (Curtea de Apel Bucuresti), ECLI:EU:C:2025:400 

Reducing excessive public deficit may justify cutting retired judges’ pay 

The Court found that the need to correct an excessive government deficit represents an objective of general interest that is capable of justifying national measures aimed at the prolonged suspension and subsequent cancellation of an allowance to certain judges upon retirement. It further emphasized that such measures do not violate the EU principle of judicial independence. 

Judgement of the Court (Third Chamber) of 19 June 2025 in Case C‑219/25 PPU (Kamekris), ECLI:EU:C:2025:456 

Previous decision of another member state refusing extradition due to serious risk of fundamental rights infringements 

In this reference for a preliminary ruling the Court of Appeal in Montpellier, France, asked the Court if it is obliged to execute Gorgia’s extradition request, given that Belgium has already rejected the same request. The case concerned a Greek citizen who has been sentenced in absentia to life imprisonment in Georgia for serious crimes. Belgium rejected his extradition based on risks of torture and denial of justice. 

The Court clarified that EU law does not oblige a Member State to refuse the extradition of an EU citizen to a third country, even if another Member State previously refused extradition for the same sentence on the basis of serious risks to that person’s fundamental rights under Articles 19(2) and 47(2) of the Charter of Fundamental Rights of the EU. 

Judgement of the Court (Fifth Chamber) of 26 June 2025 in Joined Cases C‑555/23 and C‑556/23 (Makeleio), ECLI:EU:C:2025:484 

Media service providers required to respect the value of human dignity 

The Court clarified that national laws requiring media providers (with the exception of those broadcasting online) to respect human dignity and avoid harmful content, with penalties for violations, are covered by the Audiovisual Media Services Directive. Furthermore, EU law precludes national laws imposing these content rules on traditional media providers, while exempting those broadcasting their content via the internet. 

Judgement of the Court (Fourth Chamber) of 3 July 2025 in Joined Cases C‑646/23 (Lita) and C‑661/23 (Jeszek), ECLI:EU:C:2025:519 

National legislation requiring the early retirement of a judge 

In this case, the Court clarified that article 19(1) TEU does not allow national legislation to impose early retirement upon a military judge declared unfit for professional military services, without providing reasons for its adoption or identifying any public objective. This is the case especially if similar officials (such as military prosecutors) are not treated the same, the law affects only one judge and has a punitive nature, and the judge cannot legally challenge the decision.  

Additionally, if national rules provide for compulsory early retirement in violation of Article 19(1) TEU, courts and authorities must disregard those rules and the judge must be reinstated. 

Opinion of Advocate General Medina delivered on 10 July 2025 in case C-259/24 (Katholische Schwangerschaftsberatung) 

Difference of treatment on grounds of religion 

The defendant in this case is a women’s professional association within the Catholic Church in Germany aimed at children, women and families in particular situations, including advising pregnant women. The applicant was employed by the defendant, but when she  announced her departure from the Catholic Church, she was also dismissed from her position within the Catholic organisation. The question is whether her dismissal constitutes discrimination. In her opinion, AG Medina that according to EU law, a religious organisation cannot justify dismissing an employee for leaving a church it belongs to if being a member of that church is not necessary for the job, and the employee has not publicly acted agains the values and ethos of the church. 

ECtHR judegements: 

ECtHR case of 27 May 2025, Case of Martinez Fernandez v. Hungary (Application no. 30814/22) 

Involuntary detention and failure to comply with procedural requirements  

In this case, the Court found a violation of Article 5 § 1 of the Convention (Right to liberty and security). The application concerned the involuntary detention and treatment of an 83-year-old woman with dementia for six days in a psychiatric hospital. Despite acknowledging the aim of therapy to eliminate the patient’s perceived immediately dangerous behavior, the Court highlighted that medication given at or after admission may hinder the patient’s ability to participate in the proceedings or communicate with their lawyer. Issuing such medication requires careful review from mental health professionals and the Court, which was lacking in this case. 

ECtHR Judgement of 10 June 2025, Case of B.T. and B.K.CS. v. Hungary (Application no. 4581/16)  

Failure of authorities to conduct in-depth assessment 

Here the Court found a violation of Article 8 (Right to respect for private and family life). The case concerned the placement of a Roma child in temporary state care immediately after birth. The Court found that the state authorities failed to conduct an in-depth assessment of the situation, including short-term and long-term aspects affecting the child. It further emphasized serious shortcomings in the decision-making process, depriving the mother of adequate involvement regarding the care of her child. As such, the Court concluded that there was a disproportionate interference with the right of the mother and her child to respect for their family life. 

ECtHR judgement of 12 June 2025, Case of T.H v. The Czech Republic (Application no. 33037/22) 

ID gender change denied for not undergoing sex reassigning surgery 

This case raised questions under Article 8 of the Convention (Right to private and family life), as it concerned the requirement of sex reassigning surgery as a condition for changing the personal numerical code denoting gender. The Court highlighted that the dilemma faced by the applicant of being required to either undergo surgery (and thus lose his right to respect for his physical integrity), or to renounce the recognition of his gender identity, which relates to his right to respect for private life. Additionally, it concluded that the domestic courts did not strike a fair balance between the general interest of ensuring legal certainty and the interests of the individual. As such, the Court found a violation of Article 8 of the Convention. 

ECtHR judgement of 12 June 2025, Case of Krepelik v. The Czech Republic (Application no. 23963/21) 

Lack of legal assistance during criminal proceedings 

This case concerned alleged unfair criminal proceeding, as the applicant, a person with an intellectual disability, was not given legal assistance during initial police interviews or a site visit, in breach of Article 6 §§ 1 and 3(c) of the Convention. 

The Court emphasized that effective participation in a criminal trial requires the accused not only to understand the nature of the proceedings and their rights but also the implications of waiving those rights, such as the right to legal assistance. In this case, while the domestic courts assessed the applicant’s fitness to stand trial, they failed to evaluate whether he could validly waive his right to a lawyer. Moreover, the confession was not recorded in the applicant’s own words but summarized by the police, and although it was later repeated in court, this repetition was limited and contradicted by the applicant’s later claims of innocence. The Court found that the lack of legal assistance at the pre-trial stage was not remedied later during the trial proceedings. 

ECtHR judgement of 24 June 2025, Case of Sagir and Others v. Greece (Application no. 34724/18) 

Domestic courts’ refusal to register a cultural association 

Here the Court found a violation of Article 11 of the Convention (Freedom of assembly). The case dealt with the refusal of national courts to register the “Cultural Association of Turkish women of the Prefecture of Xanthi”. The Court highlighted that the domestic courts’ reasoning focused on distinguishing between a recognised Muslim minority and a non-recognised Turkish minority, without showing how the association’s name or aims posed a real threat. Moreover, the Court reaffirmed that promoting minority identity alone cannot be seen as a danger to “democratic society” and that this notion is devoid of meaning if there is no pluralism, tolerance or open-mindedness. 

ECtHR judgement of 3 July 2025, Case of Arvanitis And Phileleftheros Public Company Limited v. Cyprus (Application no. 49917/22) 

Violation of the freedom of expression 

The case concerns the alleged breach of the right of a journalist and the publisher of a daily newspaper to freedom of expression (Article 10 of the Convention) in the context of a judgment against them in civil defamation proceedings for publishing a defamatory article about a well-known lawyer. The Court noted that the article is not without foundation, the applicants did not act in bad faith and that the approach of the domestic courts was “overly restrictive”. Thus, mentioning the interest of a democratic society in maintaining the freedom of the press on subjects of public interest, the Court concluded that the reaction of the authorities was disproportionate, not “necessary in a democratic society” or for “the protection of the rights of others”. As such, the Court found a violation of Article 10 of the Convention. 

ECtHR judgment of 3 July 2025, Case of N.T. v. Cyprus (Application no. 28150/22) 

Failure to investigate and prosecute allegations of rape 

In this case, the Court found a violation of Article 3 (Prohibition of torture) and Article 8 (Right to private and family life) of the Convention. The case concerns the failure of domestic authorities to investigate and prosecute the applicant’s allegations of rape. In its conclusion, the Court emphasized that the domestic authorities did not engage in a context-sensitive assessment with due regard to the special psychological factors inherent in cases concering sexual abuse. Additionally, the Court pointed out to the language used by the authorities in assessing the case, which “convey prejudices and sexist stereotypes” that can discourage women’s confidence as victims of gender-based violence. 

ECtHR judgment of 10 July 2025, Case of Bednarek and Others v. Poland (Application no. 58207/14) 

Discrimination on the basis of sexual orientation 

In this case, the Court found a violation of Article 3 of the Convention, taken in conjunction with Article 14. The case concerned the criminal proceedings related to the assault with homophobic overtones committed against the applicants by third parties. The Court emphasized that the perpetrators were neither charged nor prosecuted for a hate motivated attack, and that their demonstration of hostility towards people they perceived as homosexual was not accounted for in the determination of the punishment. Additionally, the Court found that the lack of legislation specifically identifying and punishing homophobic motives was not adequately compensated by the fact that the national courts merely acknowledged the homophobic aspect of the event or briefly condemned the discriminatory attitude of one of the perpetrators. 

Rule of Law Update – April 2025

Posted on by commissie_meijers in Rule of Law Update

CJEU judgements: 

Judgement of the Court (Second Chamber) of 5 February 2025, Joined cases T-830/22 and T-156/23 (Poland v Commission), ECLI:EU:T:2025:131 and Case T-1033/23 (Poland v Commission), ECLI:EU:T:2025:129 

Poland’s obligation to pay penalty imposed by the European Commission 

Regarding the reform of the Polish judicial system in 2019, the EU General Court confirms that Poland has to pay an amount in relation to the penalty payment decided by the CJEU during a previous infringement procedure. According to the General Court, the European Commission was right to impose the penalty payment on Poland for the period from 15 July 2022 to 4 June 2023. That is the ruling of the EU General Court in response to the action brought by Poland for annulment of a total of six set-off decisions of the European Commission. 

Judgement of the Court (Grand Chamber) of 25 February 2025, Joined Cases C-146/23 and C-374/23 (Sąd Rejonowy w Białymstoku), ECLI:EU:C:2025:109 

Clarification of the EU law requirements on the determination of remuneration of national judges 

The Court clarified that the rules for the determination of remuneration of national judges should have a legal basis and should be foreseeable, stable and transparent, in order to prevent the arbitrary intervention of the executive and the legislature. 

The same applies for derogating measures that would freeze or reduce the amount of that remuneration. Furthermore, they should be justified by an objective of general interest, such as a need to eliminate an excessive government deficit. Furthermore, they must be exceptional and temporary and the impact on the judges’ remuneration must not be disproportionate to the objective pursued. 

Both rules determining the remuneration of national judges and measures derogating from them must be subject to effective judicial review. 

Judgement of the Court (Eight Chamber) of 27 February 2025, Case C-16/24 (Sinalov), ECLI:EU:C:2025:116 

Rules on the allocation of cases to judges 

EU law requires judicial review of the allocation of cases to courts, in order to determine whether it represents an independent and impartial tribunal previously established by law. When a judge has doubts about the lawfulness of the allocation of a case to them, EU law does not preclude them from having to refer the case back to the head of the court management of that court, so that he or she may verify the lawfulness of the initial allocation.  

Judgement of the Court (Fifth Chamber) of 6 March 2025, Joined Cases C-647/21 and C-648/21 (D. K. and Others v Prokuratura Rejonowa w Bytowie and Prokuratura Okręgowa w Łomży), ECLI:EU:C:2025:143 

Principle of the irremovability of judges and judicial independence 

In this case, the Court ruled that second paragraph of Article 19(1) TEU prevents national laws that allow a court body to withdraw cases from a judge without clearly defined rules or without requiring reasons for doing so. Moreover, the same provision, together with the principle of the primacy of EU law, requires national courts to set aside such decisions if they violate Article 19(1). This includes the resolution removing the cases, as well as any follow-up actions like reassigning them. The bodies responsible for assigning judges must disregard those measures if they breach EU law. 

Opinion of Advocate General Spielmann delivered on 11 March 2025 in Case C-448/23 (Commission v Poland) ECLI:EU:C:2025:165 

Failure of a Member State to fulfil obligations  

AG Spielmann concluded that Poland failed to ensure effective legal protection under EU law. He pointed to the rulings of the Polish Constitutional Court rejecting the obligation to amend national law and to the dismission of judicial review of judge appointments. Furthermore, he regarded the declaration of the Polish Constitutional Court that parts of EU law were incompatible with the constitution as a manifest infringement of the fundamental principles of EU legal order.  

Opinion of Advocate General Richard de la Tour delivered on 3 April 2025 in case C-641/23 (Dubers), ECLI:EU:C:2025:251 

Judicial cooperation in criminal matters 

AG de la Tour concluded that the competent authority of the executing member state cannot rely on the ground of non-recognition and non-enforcement in the Council Framework Decision on the European arrest warrant if the executing judicial authority does not make use of the ground for non-execution, double criminality is absent, and the person is surrendered  with a guarantee of return. Nevertheless, if circumstances change after the surrender and the return guarantee remains following consultations, the executing member state may rely on the ground for non-recognition and non-enforcement. 

Judgement of the Court (Grand Chamber) of 29 April 2025 in Case C-181/23 (Commission v Malta), ECLI:EU:C:2025:283 

Failure of a Member State to fulfil obligations: operation of an investor citizenship scheme 

The case concerns infringement proceedings brought by the European Commission against the Maltese legislation on the acquisition of citizenship. According to the legislation, since 2020, persons may be naturalised in exchange for predetermined payments and investments, without a genuine link between the parties concerned and Malta. The Court held that establishing and operating an institutionalised citizenship investment scheme amounts to the commercialisation of the grant of the nationality of a Member State, and, by extension, that of Union citizenship.  Accordingly, Malta has failed to fulfil its obligations under Article 20 TFEU and Article 4(3) TEU. 

ECtHR judgements: 

ECtHR judgement of 6 February 2025, Case of Italgomme Pneumatici S.R.L. And Others v. Italy (Applications nos. 36617/18 and 12 others)   

Lack of sufficient procedural safeguards 

This case concerns the access and inspection of applicants’ business premises, registered offices or premises used for professional activities, involving the examination, copying and seizure (in some cases) of accounting records, company books, invoices and other accounting documents as well as documents relevant for tax assessment purposes. The Court found a violation of Article 8 (Right to respect for private and family life). In this sense, it considered that the domestic legal framework offered a wide range of discretion to the domestic authorities with regard to the scope and conditions of the measures. Furthermore, it concluded that the measures not subject to an effective ex post judicial review of their legality, necessity and proportionality and that the ‘quality of law’ requirement was not met. 

ECtHR decision of 11 February 2025, Calin Georgescu against Romania (Application no. 37327/24) 

Annulment of presidential elections 

The applicant challenged the annulment of Romania’s 2024 presidential elections, claiming that the Constitutional Court’s decision was based on unsubstantiated accusations, was unlawful and violated his rights under Article 3 of Protocol No.1 to the Convention, as well as Articles 6,13,10 and 11 of the Convention. He alleged lack of transparency, absence of remedies and political interference. The Court declared the application inadmissable, concluding that Article 3 of Protocol No.1 only applies to the ‘choice of legislature’, Articles 6 and 13 do not apply as the dispute does not concern either the ‘civil rights and obligations’ of the applicant or the determination of a ‘criminal charge’, and the applicant does not have an arguable claim. Furthermore, the Court held that the Claims under Articles 10 and 11 were unsupported and manifestly ill-founded. 

ECtHR judgment of 13 February 2025 Case of L.D. v. Poland (Application no. 12119/14) 

Lack of diligence and repeated delays in proceedings  

The case concerns the State’s positive obligations under Article 8 (Right to respect for private and family life) regarding the applicant’s custody and contact with her child. The Court found that the domestic authorities failed to ensure effective enforcement of the applicant’s custody and contact with her son after the father refused to return him. As such, the proceedings were characterized by lack of diligence and long and repeated delays.  Furthermore, the shortcomings in the decision-making process and the enforcement of the court orders represented significant factors in the complete breakdown of the applicant’s relationship with her son. Therefore, the Court found a violation of Article 8 of the Convention. 

ECtHR judgement of 27 February 2025, Case of Salay v. Slovakia (Application no. 29359/22) 

Lack of justification for the placement of a Roma pupil in a special class 

 The case concerned the discrimination against a Roma pupil placed in a special class for children with mild intellectual disabilities (Article 14 taken in conjunction with with Article 2 of Protocol No. 1). The placement was based on culturally biased tests, with no adequate safeguards or regular reassessment, leading to inferior education and reinforced segregation. The Court ruled that the State failed to justify this treatment and that it had a disproportionate impact on the Roma community. 

ECtHR judgement of 4 March 2025, Case of Girginova v. Bulgaria (Application no. 4326/18) 

Refusal of access to court documents  

The Court found a violation of Article 10 (Freedom of Expression) as the request of a journalist to access court documents explaining the acquittal of a former Minister of Internal Affairs was denied. The refusal limited the applicant’s ability to fulfil her journalistic duties on a matter of public interest. The Court held that the refusal was not necessary in a democratic society and that the state failed to provide effective remedies or consider less restrictive measures. 

ECtHR judgement of 6 March 2025, Case of Gorše v. Slovenia (Application no. 47186/21) 

Impartiality and presumption of innocence 

The case concerns a judge’s prior involvement in guilty pleas agreements. The presiding judge had accepted guilty plea agreements from two co-defendants before the applicant’s trial. The applicant argued that in doing so, the judge formed an opinion on his culpability before the start of the trial, thus violating the principle of judicial neutrality. Emphasizing the importance of principles related to impartiality and presumption of innocence, the Court ruled in the applicant’s favour, finding a violation of Article 6 §§ 1 and 2 of the Convention. 

ECtHR judgement of 3 April 2025, Case of Kulak v. Slovakia (Application no. 57748/21)  

Insufficient guarantees for Article 8 rights 

In this case, the Court found a violation Article 8 (Right to Private Life). The application concerned a search of the applicant’s law firm and the seizure of his computer, carried out without a written search warrant and only on the basis of the prosecutor’s telephone consent. The computer, likely containing data subject to lawyer-client privilege, was returned to the applicant fifteen months after its seizure. The Court concluded that the applicant was not offered sufficient guarantees for his right to respect of his private life and home before or after the search-and-seizure operation. In this sense, the Court emphasized, inter alia, the lack of an immediate ex post factum judicial review of the lawfulness of searches, as well as the lack of domestic procedure ensuring the preservation of material unrelated to criminal proceedings and subject to legal professional privilege. 

ECtHR judgement of 3 April 2025, Case of Heinz and Haiderer v. Austria ( Applications nos. 33010/22 and 31668/23)  

Excessive length of civil proceedings 

In this case, the Court found a violation of Article 6 § 1 of the Convention concerning the excessive length of civil proceedings. The Court emphasized that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute. The Court did not find any argument capable of justifying the length of the proceedings. As such, the Court held that in the present case the length of the proceedings was excessive and did not meet the ‘reasonable time’ requirement. 

ECtHR judgement of 24 April 2025, Case of Andersen v. Poland (Application no. 53662/20) 

Legal recognition for same-sex marriage 

In this case, the Court has found a violation of Article 8 (Right to respect for private and family life). The case concerned a complaint over the non-registration in Poland of a same-sex marriage contracted abroad, despite the lack of another form of legal recognition and protection for the relationship. The Court held that Poland has overstepped its margin of appreciation and has failed to comply with its positive obligations to ensure a legal framework that recognizes and protects the same-sex union of the applicant. Furthermore, it emphasized that the public interests invoked by the Polish government do not prevail over the interest of the applicant to have his relationship recognized and protected by law. 

Rule of Law Update – January 2025 

Posted on by commissie_meijers in Rule of Law Update

NEWS FROM THE COURTS   

CJEU judgments   

Judgment of the Court (Grand Chamber) of 4 October 2024, Case C-633/22 (Real Madrid Club de Fútbol and AE v EE and Société Éditrice du Monde SA), ECLI:EU:C:2024:843 

Balance between mutual recognition of judgments and freedom of expression  

Real Madrid sought enforcement in France of a Spanish judgment ordering Le Monde and its journalist to pay damages for defamation. The French Court of Appeal refused, citing public policy concerns and arguing that excessive damages could chill press freedom. The case was appealed to the French Court of Cassation, which asked the CJEU to clarify the balance between enforcing foreign judgments and protecting freedom of expression under Article 11 of the Charter.  

The CJEU ruled that enforcement of a judgment must be refused if it would result in a manifest breach of press freedom, constituting a violation of public policy. Courts assessing enforcement must consider whether the damages awarded are disproportionate and risk deterring journalistic activity. However, they may not reassess the merits of the original judgment. This decision reinforces the importance of protecting press freedom while ensuring mutual recognition of judgments within the EU. 

Judgment of the Court (Grand Chamber) of 15 October 2024, Case C-144/23 (Kubera), ECLI:EU:C:2024:881 

Clarifications on national courts’ referral obligations 

Kubera, a Slovenian company, challenged a decision by the Slovenian Supreme Court refusing leave to appeal on a point of law regarding the detention of imported goods under EU customs regulations. Kubera argued that the court failed to consider its request for a preliminary ruling from the CJEU on the interpretation of Regulation No 608/2013 and that the decision lacked proper reasoning, violating Article 47 of the Charter of Fundamental Rights. The case raised questions about the obligation of national courts to refer matters to the CJEU under Article 267 TFEU.  

The CJEU ruled that a national supreme court, against whose decisions there is no further judicial remedy, cannot reject an application for leave to appeal without first assessing whether a preliminary ruling is necessary. If the court decides not to refer, it must provide adequate reasoning, demonstrating that the question is irrelevant, already settled, or so clear that no doubt exists. The judgment reinforces the obligation of national courts to ensure the uniform interpretation of EU law and upholds procedural fairness. Consequently, the Slovenian Supreme Court must comply with these requirements when handling similar cases. 

Judgment of the Court (Fifth Chamber) of 7 November 2024, Case C-326/23 (C.W. S.A. and Others v Prezes Urzędu Ochrony Konkurencji i Konsumentów), ECLI:EU:C:2024:940 

Judicial appointments affecting the rule of law  

A Polish company challenged a competition law ruling before the Supreme Court of Poland, arguing that a judge lacked independence due to flaws in the appointment process. A single judge, whose own appointment was contested, referred the case to the CJEU, asking whether EU law allows challenges based solely on appointment irregularities without proof of bias or external influence. 

The CJEU ruled the request inadmissible, holding that the referring judge did not constitute a “court or tribunal” under Article 267 TFEU due to systemic flaws in their appointment. It reaffirmed that judicial independence requires a lawful appointment process and that doubts about a judge’s legitimacy can undermine public confidence in the judiciary. This decision strengthens EU oversight of judicial appointments affecting the rule of law. 

Judgment of the Court (Fourth Chamber) of 14 November 2024, Case C-197/23 (S. S.A. v C. sp. z o.o), ECLI:EU:C:2024:956.  

Judicial independence in Poland 

A Polish company challenged a first-instance judgment, arguing that the judge who decided the case had been improperly assigned in violation of national rules on case allocation. However, Polish law prevented the appellate court from reviewing such irregularities, raising concerns about judicial independence and effective legal protection under EU law. The Polish Court of Appeal referred the matter to the CJEU, questioning whether this restriction was compatible with the EU’s fundamental principles.  

The CJEU ruled that national laws preventing appellate courts from reviewing irregular case assignments violate the requirement for an independent and impartial tribunal under Article 19(1) TEU, read in light of Article 2 TEU and Article 47 of the Charter. It emphasized that courts must be able to assess whether case allocations comply with the law to ensure judicial independence and the rule of law. Consequently, Poland must allow judicial review of such procedural irregularities. 

Judgment of the Court (Fourth Chamber) of 19 December 2024, Case C-369/23 (Vivacom Bulgaria), ECLI:EU:C:2024:1043 

Judicial impartiality safeguards 

Vivacom Bulgaria sought compensation for damages from a Supreme Administrative Court ruling that misapplied EU VAT law. As the court was both defendant and final adjudicator, concerns arose over judicial impartiality. The Bulgarian Supreme Administrative Court asked the CJEU whether this complied with EU rules on independent and impartial tribunals under Article 19(1) TEU and Article 47 of the Charter.  

The CJEU ruled that a national court can adjudicate a case where it is a defendant, provided sufficient safeguards exist to ensure impartiality. The ruling emphasized that judges deciding the case must not have participated in the earlier proceedings, and budgetary rules must prevent financial dependence on case outcomes. The judgment affirms that judicial independence must be protected to maintain public trust in the legal system. 

Advocate General Opinions  

AG Medina opinion of 30 January 2025 in Case C‑529/23 P (European Parliament v TC), ECLI:EU:C:2025:48 

Limits on the right to information in MEP expenses cases.  

The European Parliament appealed a ruling annulling its decision to recover unduly paid parliamentary assistance expenses from an MEP. The General Court found that the Parliament wrongly withheld key documents, affecting the MEP’s defense. The Parliament argued the ruling misinterpreted the burden of proof and expanded the right to be heard under Article 41(2) of the Charter. 

Advocate General Medina recommended setting aside the General Court’s ruling, concluding that the Parliament was not obliged to disclose broad categories of documents without a specific justification from the MEP. The opinion emphasized that MEPs bear the burden of proving the legitimacy of expenses and that the Parliament’s refusal to disclose certain documents was justified under EU data protection rules. This reinforces the limits of procedural rights in financial recovery cases. 

ECtHR judgments  

ECtHR judgement of 24 October 2024, Case of Eckert v. France (Application no. 56270/21) 

Proportionality of fine for participation in ‘Yellow Vests’ Protest” 

The Court, in this case, ruled that a fine imposed on the applicant for participating in a banned demonstration during the “yellow vests” protests did not violate Article 11 (freedom of assembly). The court found the ban was justified due to prior incidents of violence and the lack of prior notification from organizers. Additionally, the police response was measured, involving only an identity check rather than arrests. The legal framework was deemed accessible and foreseeable, with sufficient safeguards against arbitrariness. The enforcement measures against the applicant were considered proportionate, leading to a unanimous conclusion of no violation of rights. 

ECtHR judgment of 14 November 2024, Case of Zakrzewski v. Poland (Application no. 63277/19) 

Reopening of case and fair trial rights  

The Court here found a violation of Article 6 § 1 (right to a fair trial). Despite serving half of his two-year sentence and being released on parole, the applicant’s prison term was increased after a cassation appeal by the Prosecutor General. According to the ECtHR, the Polish Supreme Court failed to address significant flaws in the original proceedings and neglected the applicant’s circumstances, leading to an unfair re-examination of his case. This case highlights the conflict between individual legal certainty and state prosecutorial power, with the arbitrary reopening of proceedings undermining fairness and public trust in the judicial system. 

ECtHR judgment of 19 November 2024, Case of Tsiolis v. Greece (Application no. 51774/17) 

Access to case-law inherent in the right to fair trial  

The case concerns the applicant’s claim for compensation due to property deprivation and its subsequent dismissal by the Greek Supreme Administrative Court. The ECtHR found a violation of Article 6 § 1 (Right to Fair Trial) due to the excessively formalistic approach of the Greek court, which dismissed the applicant’s appeal for failing to cite relevant case-law or prove its absence. The ECtHR noted that this requirement placed an unreasonable burden on the applicant, especially given the lack of an accessible case-law database. The court emphasized that procedural rules must not be applied so rigidly that they prevent meaningful access to justice, concluding that the Greek court’s approach impaired the very essence of the applicant’s right to a fair trial. 

ECtHR judgment of 21 November 2024, Case of Justine v France (Application no. 78664/17)  

Proportionality in procedural sanctions  

In this case, the court found that the rejection of the applicant’s appeal due to the late submission of a judgment violated Article 6 § 1 of the Convention. The Court found that the applicant’s lawyer’s error in document transmission did not cause any delay in the appeal process, and the strict application of procedural rules was unnecessary. The ruling emphasized the need for proportionality in procedural sanctions, advocating for a balance between legal security and avoiding excessive formalism. It also highlighted the importance of access to justice, suggesting that procedural errors should not prevent the resolution of disputes on their merits, and called for more flexible interpretations of procedural requirements, especially when the errors are minimal and do not affect the proceedings. 

ECtHR judgment of 28 November 2024, Case of Klaudia Csikós v. Hungary (Application no. 31091/16)  

Procedural safeguards for  journalist challenging alleged secret surveillance  

In this case, the ECtHR ruled in favor of journalist Klaudia Csikós, finding that Hungary violated her rights under Article 8 (Right to Private Life) and Article 10 (Freedom of Expression). Csikós alleged that her phone was tapped to identify her sources while reporting on a high-profile murder case. The Court found that Hungarian law lacked adequate safeguards against secret surveillance and failed to provide effective remedies for challenging such measures. The surveillance violated press freedom, exposed confidential sources, and had a chilling effect on journalism. The authorities did not justify the necessity or proportionality of the surveillance.  

ECtHR judgment of 5 December 2024, Case of Giesbert and Others v. France (No 2) (Application no. 835/20) 

Balancing free speech and protection against defamation  

In this case, the ECtHR addressed the defamation conviction of the director and journalists of “Le Point” for an article implicating Jean-François Copé in financial misconduct related to the 2012 presidential campaign. The Court upheld the conviction, emphasizing the gravity of the accusations and the lack of sufficient factual basis to justify the claims made. It noted that while the article addressed a matter of public interest, the applicants failed to demonstrate good faith or prudence in their reporting. Ultimately, the Court found no violation of Article 10 of the Convention, as such upholding defamation convictions while ensuring the penalties remained proportionate and not excessively restrictive of expression rights. 

ECtHR judgment of 19 December 2024, Case of Episcopo and Bassani v. Italy (Applications nos. 47284/16 and 84604/17)  

Presumption of innocence and legal certainty  

This case concerned the confiscation of the applicants’ assets, deemed to be the proceeds of crime, despite the criminal proceedings being discontinued due to the statute of limitations. The European Court of Human Rights examined whether this violated legal certainty, the presumption of innocence, and property rights. The Court ruled that there was no violation of the principle of legal certainty under Article 6 § 1, as the mechanism to resolve diverging case law in Italy had ultimately been effective. However, it found a violation of the presumption of innocence under Article 6 § 2, as the domestic courts had explicitly stated that the first applicant was criminally liable despite the discontinuance of the proceedings. 

ECtHR judgment of 21 January 2025, Case of Panayotopoulos and Others v. Greece (Application no. 44758/20) 

Ineffective investigation into ill-treatment allegations  

In this instance, the case concerned alleged police brutality against three Roma applicants and the authorities’ failure to investigate. The applicants also claimed racial motivation. The Court found a procedural violation of Article 3 (prohibition of inhuman or degrading treatment) due to the ineffective investigation into the allegations of ill-treatment. It also found a substantive violation of Article 3 for excessive use of force against two of the applicants. However, regarding the second applicant, the Court ruled that his minor abrasions did not meet the Article 3 threshold. Additionally, while the authorities failed to investigate possible racial discrimination (Article 14 in conjunction with Article 3), the Court did not find sufficient evidence to establish that racism played a role in the applicants’ ill-treatment.