20 December 2023
Between Return and Protection
Last month, the ECJ responded to a preliminary reference of the Regional Court in Brno concerning Czechia’s so-called return procedure. The ECJ ruled that a third country national cannot be subject to a return decision if they applied for international protection and a first-instance decision on that application has not yet been delivered. Curiously, the ECJ thereby answered a question it had not actually been asked, while contradicting the conclusion of the Grand Chamber of the Czech Supreme Administrative Court (“SAC”), rendered shortly before. While the ECJ’s ruling will nonetheless improve some of the problems that have inhered within Czechia’s approach to international protection and return procedures, its failure to answer the referred question constitutes a missed opportunity to facilitate a productive dialogue with referring courts in an area of law where preliminary references have been exceedingly rare. Continue reading >>
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07 December 2023
Protecting the Fairness of European Parliament Elections via Preliminary Ruling
Supreme or constitutional courts regularly step in to protect the democratic process by deciding election disputes. It is remarkable that the Court of Justice of the European Union (CJEU) has so far barely been engaged concerning the European Parliament (EP) elections. Using Hungary as an example, I will argue in the following that the CJEU is institutionally well-positioned to help protect the integrity of the 2024 EP elections via preliminary ruling procedures. Hungarian democracy has been in decline, according to the EP, the Commission and various democracy indices. The problems include the lack of a level playing field, targeted action by authorities against opposition parties, overlaps between the activities of the government and the governing party, state funding of campaigning and party financing in general, lack of media pluralism, and the different means of voting for citizens living abroad (postal vote for some and not for others). I argue that the CJEU could and should be engaged to protect the fairness of the EP elections in Hungary. Continue reading >>
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30 March 2023
Number Crunching EU Law and the Irish Legal Order
In this short piece, I will outline a few of the extremes of the Irish relationship with Europe that I have personally studied or encountered and its impact in my view. Many years ago, I wrote a dissertation on the relationship between EU law and the Irish legal order, on the unravelling dynamic since accession, focussing upon the preliminary reference data. I felt it was a deserving topic precisely because there was so little interest as to the relationship between EU law and Ireland. Ireland was uniformly always excluded from major US and EU political science studies that have been iconic in shaping views on EU integration. Continue reading >>
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01 November 2022
The Swedish Change of Government
With the current turbulences of British politics, Sweden may come across as a quiet Nordic country where not much is happening. Surprisingly little has been written about the Swedish elections from a legal perspective. On September 11, 2022, Swedes voted for a center-rightwing coalition with support from the far right. The purpose of this blog post is to discuss whether the Swedish election is as dangerous as it has been portrayed or if it (simultaneously) represents a mainstreaming of Swedish laws with some of the EU legal framework and is perhaps likely to activate Swedish courts to refer to EU courts more often. Continue reading >>
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26 November 2021
The Sanctity of Preliminary References
A national supreme court must not declare a request for a preliminary ruling by a lower court unlawful on the ground that the referred questions are irrelevant and unnecessary for the original case. This has been held by the Court of Justice of the EU (CJEU) in its important decision C-564/19 IS. In addition, the CJEU held that EU law also precludes disciplinary proceedings from being brought against national judges on the ground that they made a reference for a preliminary ruling. The case also raises important questions to what extent preliminary rulings can be effective against rule-of-law decline and make up for political EU institutions’ failure to use adequate EU tools of supervision and enforcement. Continue reading >>12 November 2021
Plaumann and the Rule of Law
Most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU. One possible response may be to modify the Plaumann-test insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’. Continue reading >>
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12 October 2021
In the Courts the CJEU does not Trust?
In last week’s long-awaited judgment, the CJEU had the opportunity to revisit its case law concerning the national courts’ obligation to refer preliminary questions. The Court largely maintained its strict approach and thereby, at first sight, admits of little trust in the national courts’ handling of EU law. Upon closer inspection, however, an alternative reading of the judgment seems possible. Continue reading >>28 July 2021
How Not to Deal with Poland’s Fake Judges’ Requests for a Preliminary Ruling
In his Opinion of 8 July 2021 in Case C-132/20 Getin Noble Bank, AG Bobek advised the Court of Justice to find admissible a national request for a preliminary ruling originating from an individual who was appointed to Poland’s Supreme Court on the back of manifest and grave irregularities. In this specific case, contrary to the position of AG Bobek, we submit that the ECJ must find the request inadmissible as the referring individual cannot be considered a tribunal established by law. Continue reading >>20 April 2021
Jeopardizing Judicial Dialogue is Contrary to EU Law
On 15 April 2021, AG Pikamäe delivered his opinion in the IS case, originating from a Hungarian criminal proceeding against a Swedish national. The national judge referred three questions for preliminary reference to the CJEU, one regarding the suspect’s right to translation and two regarding the general status of judicial independence in Hungary. As a reaction, the Hungarian Prosecutor General initiated a so-called “appeal in the interests of the law” and the Hungarian Supreme Court held the reference to be unlawful. Continue reading >>
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