Weekend Edition Nº58 by eulawlive

Nº58

MAY 15

2021 stay alert keep smart

SPECIAL ISSUE THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY: A EUROPEAN PERSPECTIVE

INTRODUCTION ORESTE POLLICINO & DANIEL SARMIENTO

KRYSTYNA KOWALIK-BAŃCZYK

GIOVANNI PITRUZZELLA

THE RULE OF LAW AND JUDICIAL INDEPENDENCE IN EUROPE: PARALLELISM OF JURISPRUDENCE, IDENTITY OF VALUES

SOME REFLECTIONS AROUND THE RULE OF LAW AND THE CONSTITUTIONAL BALANCE

GIUSEPPE MARTINICO

RAFFAELE SABATO

THE CONSTITUTIONAL FUNCTION PERFORMED BY THE EUROPEAN CONVENTION OF HUMAN RIGHTS

THE RULE OF LAW, JUDICIAL INDEPENDENCE AND … ROBERT SPANO

POSTSCRIPT ROBERT SPANO

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Introduction Oreste Pollicino & Daniel Sarmiento

system of checks and balances. As long as courts guarantee that balance, illiberal leaders have turned independent courts into their bête noire. e pressure currently exerted over several national judiciaries is catalysing an unprecedented reaction in defence of judicial independence in Europe.

e Rule of Law in Europe is under pressure. Good proof of it is the spectacular rise of legal issues and litigation in which the Rule of Law, as a value of the EU or as an underlying principle inherent to the Convention system, is invoked by private applicants, States and EU Institutions. e reasons that justify this Rule of Law explosion are well known: illiberal tendencies expanding in several European countries have led to liberal democracies now being on the ropes. e fact that we are discussing the Rule of Law with such intensity is the result of our political systems reacting through their defensive (legal) tools.

In this online symposium, several authors with relevant judicial positions, together with the voice of legal scholars, will re ect on the development of a European principle of the Rule of Law, with the focus on the case law of the two top European courts. e discussion has as its starting point the article by Robert Spano, recently published in the European Law Journal, “ e rule of law as the lodestar of the European Convention on Human Rights”. Focusing on this contribution, the variety of standpoints from diﬀerent outposts of the European judiciary and academia provide a fascinating insight into the diverse and subtle contours that the Rule of Law is currently assuming. ere are no straight-forward answers to the challenges that Europe is now facing, but it is clear that the way in which the present tensions is resolved will shape the face of Europe’s democracies for decades.

Is the reaction to protect the Rule of Law a sign of its vitality and good shape, or a symptom of its decline? As the European Court of Human Rights and the Court of Justice of the EU start updating a new and sophisticated line of case law on the ma er, this question looms large. A speci c area in which the Rule of Law has come at the forefront of the debate is judicial independence. Illiberal pulses are focusing on the independence of the judiciary, a much-cherished icon of any liberal democracy that intends to keep power within a

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Parallelism of Jurisprudence, Identity of Values Krystyna Kowalik-Bańczyk

e article of President Spano, inspired by the reRule of Law in the EU System cent ECtHR judgment in Ástráðsson v. Iceland (application no. 26374/18) on the Rule of Law princie principle of the Rule of Law forms part of the ple as a lodestar for judges provides food for European legal order under Article 2 of the Treaty thought for the ‘European Comon European Union (TEU), munity of judges’(2). ese judnext to the democratic character Both the principle of the of the EU. It forms an element of ges should be independent in order to ful l the standards of Artitrust in the system as without Rule of Law and notion cle 6 ECHR within the countries the Rule of Law the EU would of judicial indepenbound by the European Convennot function as a space of liberty, tion on Human Rights. e Eurosecurity and justice. ere are dence should be interpean Union, with all its economic various elements of the Rule of preted in the same pragmatism, is also a Community Law principle. In the rst place, of values and one of those major there is the notion of legality, unmanner under the values is the Rule of Law princiderstood as a transparent, acECHR and within the EU countable, democratic and pluple. One can legitimately presume that both the principle of the ralistic process for enacting laws. Rule of Law and the notion of jue Rule of Law implies also that the legislative prodicial independence should be interpreted in the sacess should be transparent and democratic, both at me manner under the ECHR and within the EU. national and EU levels. So it covers legal certainty is Long Read brie y explains the position in EU and transparency of legislative process. e law law, showing clearly that many analogies can be should be transparent, accessible, created in dialodrawn between the interpretation of the ECtHR as gue with and upon the consultation of civil society. expressed in the Ástráðsson v. Iceland case and the recent case law of the Court of Justice on judicial indeFurthermore, the Rule of Law principle means that pendence. the public authorities act within the limits of the law, according to democratic values and the respect of

1. Judge at the General Court, Court of Justice of the European Union. 2. R. Spano, ‘ e Rule of Law as the lodestar of the European Convention on Human Rights: e Strasbourg Court and the independence of the judi-

ciary’, European Law Journal 2021, pp. 1-17.

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fundamental rights. eir actions are subject to review by independent courts. It has been clearly stated in the case Les Verts (294/83) that the European Community (now EU) is a community of law, which means that both the Member States and the institutions should adopt acts that can be reviewed in light of the founding Treaties (Les Verts, paragraph 23). is is accompanied by the prohibition of arbitrariness in the use of executive powers and the independence and impartiality of the courts, where eﬀective judicial review maintains the respect for fundamental rights and equality before the law. is leads to the core issue of the role of the courts in light of the Rule of Law principle. e Rule of Law is mainly exercised by the judiciary - as that is the body able to verify whether the actions undertaken by diﬀerent state organs are in accordance with legal rules. e values listed in Article 2 TEU, including the Rule of Law principle, have dual protection. First, they form part of the so-called Copenhagen criteria, veri ed for the countries that are candidates for EU membership. Respect for such values is a precondition for entry to the EU. Second, a er accession, the Member States must observe and promote EU values, as otherwise they might face the mechanism enshrined in Article 7 TEU, which lays down a procedure for sanctioning a Member State that does not uphold those values. e mechanism of Article 7 TEU is primarily political however, whereas the real protection of the Rule of Law principle takes place at the judicial level.

Judicial Independence as a Component of the Rule of Law e Rule of Law is upheld by courts. is requires that the courts are independent, according to Article 47 of the Charter on Fundamental Rights. Article 19 TEU provides that such independence is necessary for the eﬀective implementation of EU law at the national level, because the national judges are EU judges. e most seminal judgment as to the combined application of Article 2 TEU, Article 19 TEU and Article 47 of the Charter, remains the judgment in the so-called ‘Portuguese judges’ case. ere the Court of Justice explained for the rst time the relationship between the Rule of Law, Article 19 TEU and the principle of eﬀective judicial protection in national courts. Article 19 gives concrete expression to the founding value of Rule of Law by entrusting

e real protection of the Rule of Law principle takes place at the judicial level

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‘the responsibility for ensuring the judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals’ (Associação Sindical dos Juízes Portugueses, C-64/16, paragraph 32). ere is ‘an unbreakable link between compliance with the Rule of Law and the principle of effective judicial protection – one cannot exist without the other’ (3). If a court is called upon to apply EU law, its independence must be protected, as only such permanent protection can be sufficient. In order to really guarantee the Rule of Law, the independent judicial review is necessary – in the Court’s case law, a broader scrutiny of EU institutions of the compliance with the Rule of Law at national level is gradually appearing (Associação Sindical dos Juízes Portugueses; C-441/17 R Commission v Poland). ere is therefore no doubt that the effective application of EU law forms part of the Rule of Law principle (Commission v Poland, paragraph 102) and can only be exercised by an independent court.

graphs 63-67; Commission v Poland, C-619/18 R). e courts should be independent from the executive (Netherlands and van der Wal v Commission, C174/98 P and C-189/98 P, paragraph 17) or even both legislative and executive powers (A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C625/18, paragraph 124; Commission v Poland, C791/19 R, paragraph 66). Otherwise there will be no effet utile of the Rule of Law. e requirement that courts be independent is inherent in the task of adjudication and has two aspects. e rst aspect, which is external in nature, presupposes that the court concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to in uence their decisions (see, to that effect, Associação Sindical dos Juízes Portugueses, paragraph 44). In this context, guarantees against removal from office are necessary to ensure this requirement is respected in practice. e second aspect is internal in nature, and it is linked to impartiality. It seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject ma er of those proceedings. at aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the Rule of Law (Wilson, C-506/04, paragraph 52). In the Court of Justice’s eyes, those ‘guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejec-

Judicial Independence de ned in EU Jurisprudence In order to have this independent judicial review, we need to be certain of the independence of judges within the political system of the country. Eﬀective judicial review must include the possibility of deciding upon ma ers pertaining to fundamental rights. As already stated, it is enough that the national court may only potentially apply EU law in order for it to be subject to the requirements stemming from Article 19 TEU and Article 47 of the Charter. In its case law, the Court of Justice has provided a precise description of the requirements for Member State judicial independence (LM, C-216/18 PPU, para-

3. K. Lenaerts, ‘ e Role of the EU Charter in the Member States’ in M. Bobek, J. Adams-Prassl, e EU Charter of Fundamental Rights in the Mem-

ber States, (Hart, 2020) p. 24.

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First and foremost, the Court of Justice stated that the question of independence of the court is a ma er of public policy (paragraph 57). In that regard, it stated that the guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. at right means that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point. at examination is necessary for the con dence which the courts in a democratic society must inspire in those subject to their jurisdiction. In that respect, such a check is an essential procedural requirement, compliance with which is a ma er of public policy and must be veri ed of the court’s own motion (see, to that eﬀect, Chronopost and La Poste v UFEX and Others, C-341/06 P and C-342/06 P, paragraphs 46 and 48). Second, the Court of Justice held that the requirements that courts be independent and impartial form part of the essence of the right to eﬀective judicial protection and the fundamental right to a fair trial, which are of fundamental importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the Rule of Law, will be safeguarded. ose requirements require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (Simpson v Council, paragraph 71. Cf also Commission v Hungary, C286/12; or the EFTA court judgment Pascal Nobile v DAS Rechtsschutz-Versicherungs, E-21/16). As re-

tion and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In order to consider the condition regarding the independence of the body concerned as met, the case-law requires, inter alia, that the dismissal of its members should be determined by express legislative provisions’ (TDC, C-222/13, paragraph 32). e requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of it being used as a system of political control of the content of judicial decisions. Guarantees that are essential for safeguarding the independence of the judiciary include rules which de ne both conduct amounting to disciplinary oﬀences and the penalties actually applicable. ey also encompass the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions. In the recent Simpson v Council case, Article 47 of the Charter was subject to broad interpretation as regards the notion of judicial independence (C542/18 RX-II, C-543/18 RX-II). e Court of Justice was – within the scope of review under Article 256(2) TFEU – led to examine two issues: in what circumstances the appointment of a judge may form the subject ma er of an incidental review of legality and, if that irregularity concerning the appointment procedure is established, whether it can lead to an infringement of the rst sentence of the second paragraph of Article 47 of the Charter, justifying the se ing aside of the decisions taken by such a court?

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gards, in particular, the appointment decisions, it is necessary that the substantive conditions and detailed procedural rules governing the adoption of those decisions are such that they cannot give rise to reasonable doubts with respect to the judges appointed (A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), paragraphs 120, 123 and 134). e real risk of reasonable doubt implies, according to the Court of Justice, that there be no ‘unjusti ed use of powers, undermining the integrity of the outcome of the appointment process’ – so no doubts in the minds of individuals as to the independence and the impartiality of the judge could arise (Simpson v Council, paragraphs 75 and 79).

Symbiotic Relationship between Strasbourg and Luxembourg It follows from Article 52(3) of the Charter that the meaning and scope of rights that correspond to those contained in the ECHR should be the same as those laid out in that European Convention. Article 52(3) requires that rights contained in the Charter which correspond to the rights guaranteed by the ECHR are given the same meaning and scope as those laid down by the ECHR (Liga, C-426/16, paragraph 40). e level of protection guaranteed by the Charter may not disregard that guaranteed by the ECHR (K. v Staatssecretaris van Veiligheid en Justitie, C-18/16, paragraph 50; Menci, C-524/15, paragraph 62; Staatssecretaris van Veiligheid en Justitie, C180/17). In accessing the rules or requirements on judicial independence, the Court of Justice makes reference to the case law of ECHR. Since the Bosphorus judgment, there is also a presumption of equivalence of such protection (recently con rmed in Avotinš v. Latvia, application no. 17502/07, paragraph 102). e ECHR constitutes a minimum threshold of protection (TC, C-492/18 PPU, paragraph 57). Both the ECHR and EU are commi ed to protecting fundamental rights but their respective systems of protection operate in diﬀerent ways. e EU system of fundamental rights protection is an inter-

In principle, the Court of Justice also con rms that the situation of infringement of judicial independence is not only for the courts to handle. e European Commission should engage in a structural dialogue with a Member State concerned in cases where the threats to the Rule of Law are systemic in nature. ere are three criteria that should be ful lled in order to identify such a threat: (1) the measures or situations that are likely to systematically and adversely aﬀect, (2) the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms, (3) established at national level to secure the Rule of Law.

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nal component of the Rule of Law within the EU, based on principles of primacy and direct eﬀect (4); XC and Others, C-234/17, paragraph 36). erefore, the EU looks at Strasbourg in all cases where a human rights dimension is present and quite naturally this leads to a mutually inspiring discussion also on the issue of the de nition of Rule of Law and judicial independence.

Conclusions To conclude, it needs to be underlined that there is a similar, if not identical, set of criteria to assess if the Rule of Law is observed when calling judges to oﬃce, exercising their mandates in an impartial manner and ending their mandates. ere is certainly mutual consideration on both sides – the Court of Justice cites the ECtHR and vice versa. is might be described as an axiological convergence in the de nition of the notions of Rule of Law and judicial independence. is axiological convergence and mutual inspiration is necessary if we consider that we are assessing the conditions in which national judges exercise their functions as EU judges, bound both by the ECHR and by EU law. e ECtHR’s judgment in Ástráðsson v. Iceland will certainly be a source of important inspiration and guidance on the notion of judicial independence for EU judges.

ere is certainly mutual consideration - the Court of Justice cites the European Court of Human Rights and vice versa

4. S. O’Leary, ‘

e EU Charter Ten Years On: A View from Strasbourg’, in

M. Bobek, J. Adams-Prassl, op.cit, p. 34.

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Some reﬂections around the Rule of Law and the constitutional balance 1

Giovanni Pitruzzella

President Spano, that the European pluralistic constitutional order rejects the ‘thin’ theory of the Rule of Law. e concept is wider than the idea for which State power must be exercised in accordance with promulgated, non-retrospective law made according to established procedures. is ‘thin’ theory dominated the liberal constitutionalism of the 19th century. But the weak meaning of the Rule of Law became unsatisfactory for the liberal-democracy of the 20th century.

President Robert Spano’s article on the Rule of Law is a source of fruitful thoughts and inspirations since the inception, when he adopts the metaphor of the ‘lodestar’ of the European Convention of Human Rights. As a star which is used to guide the course of a ship, the Rule of Law is used to guide the judicial interpretation of all the articles of the Convention and to frame the relationship between the Court of Strasbourg and the Court of Luxembourg.

e meaning of the Rule of Law is strikingly elusive and there is no overall consensus on it

Our democracies cannot accept this ‘thin’ version. e cornerstone of contemporary constitutionalism in Europe is the guarantee of human dignity which is the prominent foundation of a very large set of fundamental rights. e main corollaries of this set of rights are pluralism and an open society. is common inspiration of the Constitutions of many European States is re ected in the European Convention of Human Rights and in the Charter of Fundamental Rights of the European Union.

e Rule of Law was once not very much more than an expression used by academics, prominent in AV Dicey’s seminal work, e Law of the Constitution, rst published in 1885. Since then the literature on the topic has become as vast as the ocean. Nevertheless, the meaning of the Rule of Law is strikingly elusive; there is no consensus, at least no overall consensus, on the subject. But if we leave the philosophical and doctrinal approach and we follow a legal approach based on the judicial interpretation of the Convention and the Treaties of the EU, our understanding becomes easier. From this perspective we can say, according to the jurisprudence quoted by

is cultural, political and juridical context brings the European Courts to link the Rule of Law with democracy and fundamental rights. e Rule of Law demands more than legal certainty (which, however, is still important). e Court of Strasbourg stated that the Rule of Law is one of the ‘foundations of an eﬀective and meaningful democracy’, and furt-

1. Advocate General at the Court of Justice of the European Union. e text expresses the personal opinion of the author and in no way commits

the institution to which he belongs.

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Democracy is at risk or almost impossible without the Rule of Law, but they do not overlap - the tension between them must be accommodated

hermore it has identi ed a direct connection between the Rule of Law, democracy and freedom of expression.

ween the two principles and reach the proper balance, we should de ne their precise scope. us, how should the Rule of Law be properly understood?

e Rule of Law is linked to democracy in the wording of the Article 2 of the Treaty on European Union, and it is a necessary condition, according to the jurisprudence of the two Courts, to guarantee fundamental rights and avoid tyranny. Without the Rule of Law, democracy is at risk or almost impossible. Democracy and the Rule of Law together pursue the ght against tyranny.

Firstly, it must include the ‘thin’ theory. As President Spano points out, ‘the foundational moral idea behind the Rule of Law, which lies at the core of Convention protection, is the respect for personal autonomy and the exclusion of the arbitrary use of governmental power. For a person to realistically able to retain and nurture independence of thought, to be able to manage his or her life as he or she wishes, to be able to strive for happiness, success and inner peace, all fundamental elements of human existence, it must conceptually be of paramount importance that the society in which that person lives is in reality, and not only factiously, governed by law. e law must be transparent, stable, foreseeable and allow for mechanisms of dispute resolution that are independent and impartial”.

But the Rule of Law does not overlap with democracy. Democracy’s ag is the authority of the people’s will, while the ag of the Rule of Law is the principle according to which society is governed by the law. Government by the people and for the people is diﬀerent to government by law. Hence the tension between the two principles. ere is a structural and unavoidable tension between the two sources of legitimacy and they need to be accommodated.

But the ‘thin’ version restrains political power only by insisting on proper procedures for the making and application of the law. is could be – as I said before – unsatisfactory. In eﬀect our constitutional systems require something else: the protection of fundamental rights and judicial supervision of State action. But, unless the judges are independent and

An accommodation between the claims of the Rule of Law and the claims of people’s sovereignty must be found in order to create – to use the title of a very recent book of John Laws – a “Constitutional balance”. In order to understand the source of tension bet-

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e more the legal text is the product of political compromise, the more its meaning is ambiguous and uncertain impartial, there is no point in having them; since if they are not, their decisions have no more value than if they were made by the reviewed body itself. e version of the Rule of Law developed by the European Courts involves the right to an eﬀective judicial remedy and the independence of the judiciary, which has a very broad meaning. According to the Court of Justice, this requirement of judicial independence, which is inherent in the task of judging, falls within the essential content of the right to eﬀective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantor of the protection of all the rights that individuals derive from EU law and of the preservation of the values common to the Member States set out in Article 2 TEU, in particular the value of the Rule of Law (Commission v Poland, C-192/18, paragraph 106 and the case law cited; A.B., C.D, E.F., G.H., I.J, v Krajowa Rada Sadownictwa, C-824/18, paragraphs 116 and 117 and the case law cited).

A similar line of reasoning is adopted by the Strasbourg Court in its seminal rulings in the cases Oleksander Volkov v. Ukraine, Baka v. Hungary, Denisov v Ukraine, AgroKomplex v Ukraine, and Astråōsson v Iceland. Particular a ention is paid to the requirement of de facto judicial independence, like in the important judgment in the case Kinsky v. the Czech Republic and more recently in Rinau v. Lithuania, in which public statements by politicians and measures taken by the executive to monitor ongoing judicial proceedings were considered to have had an impact on the fairness of pending proceedings before national courts. It is noteworthy to add another aspect. e meaning of any given law is very o en uncertain. is is true for domestic law, but also for the European laws, for the Treaties of the EU and for the European Convention of Human Rights. e more the legal text is the product of a political compromise, the more its meaning is ambiguous and uncertain. As a consequence, there are two circuits of law-making. e political mechanism, based on the people’s vote, the Parliament and the political will expressed in the statutes or in the European laws, and the judiciary mechanism, whose output is legal interpretation. Judicial interpretation is a part of the law-making process and judicial interpretation is a creative activity. e statute’s meaning must be independently deci-

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ded, to satisfy the Rule of Law and protect ourselves against the caprice and the arbitrary rule of rulers. However, can citizens be protected against another form of arbitrariness, the one of the judges (le gouvernement des juges), that hinders the constitutional balance? As Aharon Barak wrote in his book on a judge’s discretion, ‘the fundamental question is not whether discretion should exist, but: where a democratic society that is governed by law should set appropriate limits on discretion’.

Judges should implement objective standards and jurisprudential tools to limit the arbitrary use of power

no points out, the Rule of Law has diﬀerent dimensions. e Rule of Law is identi ed in a set of specic rules – which I mentioned above – but it is also the principle which provides a methodological point of departure in the interpretation of any legal provisions in order to pay due respect for the rational autonomy and dignity of human beings and to preclude the arbitrary use of governmental power. If judges, interpreting the law, dismiss these objective standards and follow their subjective preferences and political choices, they go beyond the boundaries that in a democratic society limit their role. If politicians threaten, using the law or other political means, the independence of the judiciary, they violate the obligation they bear in a system based on the Rule of Law and break the constitutional balance.

I think that the answer is that judges should implement, when they interpret the law, some objective standards, which are mainly the constitutional principles underpinning the legal system in which they operate, together with some tools elaborated by the jurisprudence with the aim to limit the arbitrary use of power, such as proportionality. ese standards limit and guide their discretion. e law thus made will give eﬀect to standards that are not merely the creatures of the rules who made the laws or of the individual judge who interprets it. ese standards can also guarantee the coherence of the whole legal system – which is an aspect of legal certainty – and an evolution of the jurisprudence capable of combining the necessity of exibility and adaptability to changing circumstances with the predictability of judicial decisions. Among these general objective standards there is also the Rule of Law. As President Spa-

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The Constitutional Function Performed by the European Convention of Human Rights Giuseppe Martinico

For example, in some countries, the ECHR has As President Spano argued in his article, the Rule of been treated as a shadow constitution (Austria) and Law is the lodestar of the European Convention for used by domestic constitutional courts to enrich the Protection of Human Rights and Fundamental the national yardstick employed to review domestic Freedoms (ECHR). In this Long Read, I shall try to laws. In other countries (the Netstretch the argument a bit furtherlands) where there is no proher by noting that the European per judicial review of legislation, Cour t of Human R ights One could say that the national courts have bene ted (ECtHR) also participates in the from constitutional openness, function historically performed ECHR gives added value and used international treaties, inby constitutionalism, namely to domestic constitutiocluding the ECHR, to remedy that of limiting and shaping polithis situation. Comparative retical power, in particular State po- nalism and fundamental search shows that in other counwer. In doing so the ECtHR has rights protection tries the ECHR has acquired at been successful and because of least a super-legislative status. that its activity has become the target of national resistance, espeis super-legislative status of cially in populist times. the ECHR has produced reactions at the national level and this is inevitably the price of the success that In order to develop this point, it is rst necessary to this international instrument has had over the years clarify the relationship between the Rule of Law and and consequently of its invasiveness in domestic constitutionalism. As the Canadian Supreme Court boundaries. As Justice Gallo, former President of argued in its famous Reference Re Secession of Quethe Italian Constitutional Court wrote in a text prebec (paragraph 70), constitutionalism and the Rule pared for a meeting in Brussels held on 24 May of Law present similarities, but they are not identi2012, recently, the exchange of views between the cal, in the sense that constitutionalism brings the Italian Constitutional Court and the Strasbourg claims of the Rule of Law to a further level, linking Court has become more and more frequent. In printhese claims to the necessary compliance with a higciple, the ECHR gives added value to the protection her law. In this respect, one could say that the ECHR of fundamental rights in Europe. However, as Justigives added value to domestic constitutionalism. ce Gallo pointed out: ‘the work of transposition of

1. Full Professor of Comparative Public law at the Scuola Superiore

Sant'Anna, Pisa.

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the case-law of the ECtHR into the national legal order has not been easy’. One could see the Italian case as particular in light of the uncertain position accorded to the ECHR (super-legislative but also subconstitutional) but even in other jurisdictions the situation is pre y similar. Even in legal orders lacking a fully- edged constitutional text, like the UK, judges have limited the openness granted to the ECHR, which cases such as Horncastle con rm. Over recent years the ECtHR has been under a ack and forms of judicial and political resistance have emerged. ere might be diﬀerent explanations for that: some of them are long-standing issues that have already been explored in depth by scholars. In other cases, instead, they are also due to the recent waves of populism and sovereignism that have spread around Europe. In some cases, even the international commitments stipulated by national states have been subject to referendums, and this explains why not only national but also supranational courts have been targets of populist a acks. e recent ‘Swiss law rst’ initiative is a good example of this, in a

system where the ECHR and the ECtHR play a fundamental role in giving national judges the possibility of carrying out judicial review of federal legislation, compensating in this way the immunity of federal laws from the judicial control of compatibility with the local Constitution. Finally, there are also episodes of non-execution and judicial disobedience that seem to have more speci c reasons due to the circumstances or the factual background of the case. ere are also cases of judicial disagreements that can perform a systemic function by inducing the Strasbourg Court to adjust its case law. is is the case in my view, of the Hutchinson saga, in which the ECtHR came back to its Vinter decision, producing what was called a ‘counter-revolution’: ”In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has speci cally addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law (paragraph 25, emphasis added). Even more clearly, the Grand Chamber in the

Over recent years the ECtHR has been under a ack and forms of judicial and political resistance have emerged

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2017 Hutchison case stated: “In the McLoughlin decision the Court of Appeal responded explicitly to the Vinter critique. It aﬃrmed the statutory duty of the Secretary of State to exercise the power of release compatibly with Article 3 of the Convention […] e Court considers that the Court of Appeal has brought clarity as to the content of the relevant domestic law, resolving the discrepancy identi ed in the Vinter judgment” (paragraph 39).

declare the impossibility to enforce the decisions of the ECtHR if they breach the national Constitution. Scholars have commented upon the follow up of the Russian Constitutional Court to the Yukos decision, describing the Russian case as an example of ‘hostile criticism’ or ‘unprincipled disobedience’.

However, all the forms of disobedience are a direct consequence of the success of the ECHR and of the progressive involvement of national judges in the life and enforcement of this instrument (the idea of subsidiarity which has been codi ed in Protocol 15 to the ECHR), and are in a way the price of the success of the Protocol No. 16 could ECHR, which is more and more help in explaining that o en conceived of as a pressing and important source of obligathe ECHR enriches tions even by the domestic actors and institutions.

For the sake of clarity, my main point is not to do with the consistency of this line of cases from a substantive point of view or with the destiny of the ‘right to hope’ a er Hutchinson. As scholars immediately pointed out, the protection of consthere are ambiguities both in the National courts may play a fundatitutional rights and decision of the Court of Appeal mental function in enabling do(for instance, it appears diﬃcult that the Strasbourg mestic constitutionalism to be ento deny the uncertainty surrounriched by the ECHR, and indeed ding the term ‘exceptional cirCourt is not a threat the ECtHR needs allies. In this cumstances’) and in the decito sovereignty respect, a potential turning point sions of the ECtHR. Neverthemight be represented by Protocol less, Hutchinson is interesting No. 16. Protocol No. 16 could from the methodology of dialohelp the European Court in explaining that the gue, being a good example of how national and EuroECHR enriches the protection of constitutional pean courts may exchange arguments, even correcrights and that the ECtHR is not a threat to soveting the interlocutor if the decision of the ECtHR is reignty. Diri i Comparati has contributed to the Itabased on what is perceived as a questionable unlian debate about the advantages oﬀered by Protoderstanding of what national law says. By expressing col No. 16. Unfortunately, in Italy, the nondisagreement, national judges may in uence the rati cation thesis has also been supported by soveevolution of the case law of the Strasbourg Court. reignist arguments. However, there are also cases in which the disagreement stemming from national courts cannot be In some countries, in order to face populist a acks, read in such a benign manner. Famous examples coconstitutional courts have been trying to be er exme from Russia, where the local Parliament adopplain their mission to citizens, to reach out to peoted a new law allowing the Constitutional Court to

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movements and their lack of commitment to the European culture of human rights. In recent years the resentment against the Court has reached a new, alarming pitch, stoking sectarian rage against the Convention system itself. e rhetoric of the Convention as a “villain’s charter”, which protects the terrorists, the paedophiles and all sorts of criminals against the innocent majority, or the abusive, lazy migrants against the hard-working Mr Smith, or the privileged minorities against the underprivileged, common man on the street, echoes the whipped-up fear of the outsider – of that which is foreign or diﬀerent.’

ple, so to speak, by investing heavily in a communication strategy (members of Constitutional courts record podcasts, they give interviews to newspapers, they participate in cultural (non-academic) events). is has triggered a huge debate about the pros and cons of this choice. Are courts equipped to do that? Is this useful? e risk of trespassing is always present, but perhaps it is be er for courts (especially top courts) to explain their role rather than le ing the courts - and their counter-majoritarian function necessary to preserve democracies - be exploited by the populist narrative. Some years ago, in one of his famous separate opinions, Judge Paulo Pinto de Albuquerque referred to a ‘spirit of the age’, an age that experiences ‘strong headwinds against the Court’ particularly following the emergence of new populist movements and extremist parties: ‘One major commonality among these parties and movements is their unprecedented barrage of bellicose verbiage against the Court, based on awed, inaccurate and easily debunked misinformation. Such abject a itude speaks volumes about the social and political values of these parties and

e article wri en by President Spano oﬀers an outstanding contribution to the debate about the role and the impact of the Strasbourg Court on civil society and helps in clarifying why its mission enriches the protection of fundamental rights. In this, the ECtHR is a powerful antidote to the new wave of populism (either authoritarian or not) and a fundamental piece in the supranational constitutional mosaic as it helps in oﬀering a further instrument of rationalisation of political power in a phase in which ‘the intrinsically counter-majoritarian nature of human rights is forgo en by legislators, courts and other domestic public authorities’.

e ECtHR is a powerful antidote to the new wave of populism

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The Rule of Law, Judicial Independence and … Robert Spano Raﬀaele Sabato

independent role within the Interlaken process while he was a judge. As its President he led the ECtHR to the closure of the process in the Council of Europe’s ministerial session of 4 November 2020, on the ECHR’s 70th birthday. His background in rm and constant pleading for the ECtHR’s and national judges’ independence in this and in several other, o en diﬃcult, Robert Spano’s article, while proRobert Spano's article contexts is a sort of watermark posing a very interesting approvides a toolkit for we should not lose sight of as proach to the conceptual framewe comment on a paper by work of the Rule of Law, also pro- actors to deal with issues him; the view of subsidiarity as vides, in my view, a relevant – alconcerning the role of a support to the judicial role he beit perhaps implicit - toolkit for has voiced in the past, coupled actors at the European and najudges as Rule of with his vision of a European tional level to deal with issues Law guarantors dynamic community of judges, concerning the role of judges as are now - a er Protocol No. 15 Rule of Law guarantors. will enter into force in a few months - enshrined in the preamble to the ConI am not a theorist. Consequently, in this Long Read vention. erefore, his article does not come as a I will only shortly argue from a mere practitioner’s surprise. point of view that this toolkit exists. I hope that the reader may also conclude that such a toolkit may · e vision of a three-dimensional status of the turn out to be useful in the near future; but I will not Rule of Law is of course the main feature of the artibe able to dwell on this la er aspect. cle (in its section 3). However, especially from my point of view as a ‘worried’ practitioner, of no less Before presenting my thoughts, let me say that: importance is the fact that the author develops the concept (in section 4) that independence of the ju· Robert Spano, a person who remarkably combidiciary is the most prominent example of a nes assets from theoretical and judicial experien‘hybrid’ dimension in which the Rule of Law opeces, was the paladin for the ECtHR developing an Having served for a long time as a judge in the courts of my country before landing in Strasbourg to serve as a judge at the European Court of Human Rights (ECtHR), I consider that present threats to judicial independence and impartiality in Europe are not only a professional, but also a personal concern.

1. Judge at the European Court of Human Rights.

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A rst tool lies in the idea that the Rule of Law hybrid dimension may become relevant in any kind of court litigation rates under the ECHR, at the same time, as a principle and as a set of speci c rules, which the community of judges itself has to enforce. Last but not least, in such a community along with national judges, Spano includes two European Courts, the relationship between the Luxembourg and the Strasbourg courts being a ‘symbiotic one’ when referred to the Rule of Law (and this is the content of a very stimulating subsection 4.4). Let us now come to the toolkit that the article, in my opinion, provides to the judicial community. A rst tool most likely lies in the idea, implicitly supported by Spano consistently not only with the ECtHR Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson v. Iceland, but also with the ‘symbiotic’ case law of the Luxembourg

Court (subsection 4.4), that the Rule of Law hybrid dimension may become relevant in any kind of court litigation. It cannot be my task to discuss the conceptual framework that the author provides for this idea; I may just mention that both the parties and – probably – the judges of any case aﬀected by any breach of this dimension of the Rule of Law may consequently be entitled to legal standing to challenge it at the European level. If the Icelandic case expands the right to a tribunal established by law under Article 6 ECHR to include a prerequisite of an appointment of judges complying with the Rule of Law’s hybrid dimension, other expansions could become visible in the wake of the ECtHR’s and the ‘symbiotic’ Luxembourg Court’s case laws (for example let us imagine what can be built on Oleksandr Volkov v. Ukraine, Baka v. Hungary, and Denisov v. Ukraine concerning the issue of irremovability and/or procedures to dismiss judges from their functions). Another powerful tool that the article indirectly points out to concerns, in my view, domestic judges and the systems governing their status. e ideas that the Rule of Law has a dimension directly spelling

Another powerful tool concerns domestic judges and the systems governing their status

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out xed-content rules, and that the la er include those rules which protect judicial appointments and careers from undue interference, imply that these types of violations of the Rule of Law are crucial and relevant for European supervision. Along these lines, a European community of judges can exist only if transparent, democratic, and non-partypartisan mechanisms are in force to guarantee their appointments and professional status, preferably through self-government of the judiciary in order to preserve separation of powers. But, as case law shows, even formally independent bodies, such as councils for the judiciary, can be established or function in defective ways, possibly not compliant with Article 6 (these days, allegations of this kind concern many countries). In such cases, possible expansions of protection may even address the functioning of such bodies, in view of transparency and rewalls against outside interferences. Spano calls our a ention to the need to pierce the veil of the ‘façade’ of merely formal judicial independence.

Last, but not least, a third tool that the article provides concerns the relationship between the violation of the Rule of Law in the area of judicial independence and underlying domestic proceedings. is is more a tool for digging in search of the buried jewel in our treasure hunt, than the jewel itself. In fact, the article does not clarify if, and under which circumstances, violations in the area of judicial independence may be deemed so serious as to entail that domestic decisions stemmed a non judice or coram non iudice. is, too, is not a surprise, since the judgment in Guðmundur Andri Ástráðsson also only alluded to the issue. Here, it is inevitable to take note of the several domestic solutions to the problem of reopening proceedings, and the customary maxim that it is not for the ECtHR to solve it. But, in my view, the article contains one or two concepts, built on strong foundations of both case law and legal scholarship, that may ‘lead’ to developments. I will not comment further: a ‘lodestar’, as the etymology of this word tells us, is a star that ‘leads’ the way.

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The Rule of Law and Judicial Independence in Europe - Postscript Robert Spano

I begin by thanking Diri i Comparati and EU Law Live, as well as Professors Pollicino and Sarmiento for hosting this Special Issue on the occasion of the publication of my article in the European Law Journal (2). It has been a great honour and a pleasure to review the many thoughtful and inspiring contributions from my distinguished colleagues, both on the bench and in academia.

Each contribution looks in its own way at the role to be played by national or European courts in upholding the rule of law through the prism of judicial independence.

1. President of the European Court of Human Rights. 2. R. Spano, ‘ e rule of law as the lodestar of the European Convention on Human Rights: e Strasbourg Court and the independence of the judi-

ciary’, Eur Law J. 2021;1-17.

Judge Krystyna Kowalik-Bańczyk’s impressive contribution examines judicial dialogue at the European level. She makes a powerful case for an ‘axiological convergence’ in the de nitions of the Rule of Law and judiProfessors Daniel Sarmiento It has been a great honour cial independence by the Strasand Oreste Pollicino set the scene by highlighting the contemand a pleasure to review bourg and the Luxembourg Courts, a parallelism of jurispruporary political context for this the many thoughtful and dence and values. is follows discussion. ey underline the important role that the Rule of inspiring contributions necessarily from Article 52(3) of the EU Charter of Fundamental Law will play in shaping our defrom my distinguished Rights and from the presumption mocracies in the future. e diof equivalence of protection as rect relationship between the Rucolleagues rst set out in the Strasbourg le of Law, democracy and freeCourt’s Bosphorus judgment and dom of expression is also refesubsequently recon rmed and re ned in the case of rred to in Advocate General Giovanni Pitruzzella’s Avotiņš v Latvia. I certainly agree with Judge Kowacontribution to which I will return below. e relik-Bańczyk that ‘the principle of the Rule of Law cent litigation at the European level on judicial indeand the notion of judicial independence should be pendence is indicative of growing tensions in cerinterpreted in the same manner under the ECHR tain parts of Europe. e stakes are high, which is and within the EU’. why the current challenges to the Rule of Law should be taken seriously.

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wever, as he eloquently makes clear in an inspiring contribution, ‘[without] the Rule of Law, democracy is at risk or almost impossible. Democracy and the Rule of Law together pursue the ght against tyranny’. Demonstrating the close doctrinal connection between the Rule of Law and judicial independence, he goes on to make crystal clear that ‘unless ... judges are independent and impartial, there is no point in having them; since if they are not, their decisions have no more value than if they were made by the reviewed body itself ’.

Professor Giuseppe Martinico’s contribution analyses the nature of the relationship between the European Court of Human Rights and national constitutional or supreme courts. It is clear that the Strasbourg Court is called upon in some cases to examine complaints in a manner which is similar to national constitutional courts. Indeed, the Court has sometimes been considered to be a quasiconstitutional court for Europe in the eld of human rights. Yet at the same time, one of the most important features of the Convention system is its subsidiary character, as I explained elsewhere. While it may invade domestic boundaries as Professor Martinico suggests, this should be seen in a positive rather than negative light. e European Convention, as interpreted and applied by the Court, permeates most branches of domestic law in the States Parties. e Convention is perhaps the only international instrument which impacts domestic law to such an extent. Hence, the importance of two-way judicial dialogue with domestic courts. Judicial dialogue through judgments is, by de nition, a process which takes time and any one snapshot is not necessarily re ective of the quality or eﬀectiveness of that dialogue. Generally, diﬀerences of approach with domestic superior courts resolve themselves over time through follow-up judgments. So today’s judicial disagreement might become tomorrow’s judicial accord. In sum, enhancing such dialogue with national courts is a crucial aspect of the work of the Court and is a top priority of my mandate as President of the Court. Since national judges are our key partners in the Convention system it goes without saying that their independence has primordial importance, not just for the Rule of Law in the country in question, but also for the European Convention system itself.

My good friend, Judge Raﬀaele Sabato, focuses on elements which might make up a possible Rule of Law ‘toolkit’ for the judicial community, as he terms it. He joins me in the call for coherence within the ‘symbiotic’ case law of the Strasbourg and Luxembourg Courts. He hints at the possibilities for developing a judge’s subjective right to independence in the Strasbourg Court’s case law, a view already espoused by my predecessor, President LinosAlexandre Sicilianos, in his much discussed concurring opinion in Baka v. Hungary. Judge Sabato’s judicial experience is vast and I know from working closely with him since his election to the Court that his wisdom and strong sense of justice, albeit coupled with inherent pragmatism, require that one carefully examines his views on judicial independence. Drawing on my extrapolation of the threedimensional nature of the rule of law under the Convention, he concludes quite aptly by stating that ‘a European community of judges can exist only if transparent, democratic and non-party-partisan mechanisms are in force to guarantee their appointments and professional status, preferably through self-government of the judiciary in order to preserve separation of powers’.

Advocate General Pitruzzella highlights that the principle of the Rule of Law is ‘strikingly elusive’. Ho-

e principle of the Rule of Law is one of the core structural pillars of a constitutional democracy, in-

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deed, within the Convention system, a ‘fundamental component of European public order’, as explained by the Strasbourg Court. It is exactly within this context that the importance of judicial independence must be understood. It is an existential issue, it is foundational for Europe.

It is our solemn duty, the duty of every member of the European Community of Judges, national as well as international, to preserve our independence, to decide every case impartially and in accordance with the law and nothing else, and never succumb to external pressures of any kind So I conclude with this: It is our solemn duty, the duty of every member of the European Community of Judges, national as well as international, to preserve our independence, to decide every case impartially and in accordance with the law and nothing else, and never succumb to external pressures of any kind. Only in this manner, performing our assigned roles under a system of the separation of powers, with a calm mind and a brave heart, can we serve the peoples of Europe and deliver justice.

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News Highlights Week 10 to 14 May 2021

Conference on the Future of Europe oﬃcially inaugurated

Council approves conclusions on EU security and defence agenda

Monday 10 May

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e European Parliament hosted an inaugural event of the Conference on the Future of Europe on Europe Day, kickstarting a one-year high-level dialogue involving the main EU institutions, Member States, citizens and other stakeholders on the future of European integration.

e Council of the EU approved conclusions conveying its intention to move forward in the implementation of the EU’s security and defence agenda. It calls for a more strategic course of action and for an increase of the EU’s capacity to act with autonomy.

French Constitutional Court declares French law implementing EU Framework Decision 2008/909/JHA unconstitutional

Council adopts Regulation providing new framework for trade of dual-use items

Monday 10 May

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e French Constitutional Court delivered a decision declaring unconstitutional several provisions of the French criminal procedure code implementing provisions of Council Framework Decision 2008/909/JHA.

ECtHR: announcement on pending cases concerning alleged lack of judicial independence in Poland Tuesday 11 May

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e European Court of Human Rights noti ed the Polish Government of cases on judicial system reform: Brodowiak v. Poland (applications nos. 28122/20 & 48599/20), Biliński v. Poland (no. 13278/20), Pionka v. Poland (no. 26004/20) and Juszczyszyn v. Poland (no. 35599/20).

Monday 10 May

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e Council of the EU adopted a Regulation se ing up a new EU regime for the control of exports, brokering, technical assistance, transit and transfer or dual-use items. is follows an agreement with the European Parliament to strengthen EU export rules on dual-use items.

Lack of possibility to judicially review termination of xed-term contracts under EU law: request for preliminary ruling published Tuesday 11 May

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e action in KL v X sp. z o.o. (C-715/20), with preliminary questions posed to the Court of Justice by the District Court for Kraków-Nowa Huta on the interpretation of EU law where xed-term contracts are terminated, was published.

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ECtHR: ning whistleblower for disclosure of tax documents in Luxembourg did not breach freedom of expression

Commission adopts Recommendation for Council Decision authorising negotiations for EU-UK Competition Cooperation Agreement

Tuesday 11 May

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e ECtHR ruled in Halet v. Luxembourg (application no. 21884/18) that Luxembourgish courts did not breach the freedom of expression in Article 10 ECHR when they convicted a whistleblower who disclosed tax documents concerning some of his employer’s clients.

e European Commission adopted a Recommendation for a Council Decision that would authorise the start of negotiations for an EU-UK Competition Cooperation Agreement.

Council Regulation implementing measures for EU own resources system oﬃcially published

Court of Justice to rule on ancillary tax obligations for information society services

Tuesday 11 May

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Oﬃcial publication was made of Council Regulation 2021/768 laying down implementing measures for the system of own resources of the EU and repealing Regulation 608/2014.

Oﬃcial publication was made of a request for a preliminary ruling by the Italian Council of State in Airbnb Ireland UC, Airbnb Payments UK Ltd v Agenzia delle Entrate (C-83/21), concerning the compatibility of EU law with ancillary tax obligations for information society services.

Council adopts acts on Horizon Europe legislative framework

General Court annuls Commission decision refusing to register citizens’ initiative for failure to reason it being out of the scope of CCP

Tuesday 11 May

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e Council of the EU adopted four legislative acts that aim to further develop the Horizon Europe legal framework, the EU’s programme for research and innovation for the period 2021 to 2027.

Wednesday 12 May

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In Tom Moerenhout and Others v Commission (T-789/19), the General Court annulled a Commission Decision refusing to register a citizens’ initiative for failure to state reasons, breaching Article 296 TFEU and Article 4(3) of the ECI Regulation (2019/788).

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Ne bis in idem principle may preclude Interpol Notice-arrests of EU citizens according to Court of Justice Wednesday 12 May

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e Grand Chamber of the Court of Justice ruled in Bundesrepublik Deutschland (Interpol Notice) how the principle of ne bis in idem applies under the Schengen Agreement, Charter, and TFEU, when an Interpol Notice has been issued.

General Court nds existence of tax advantage in Luxembourg’s Engie group tax rulings Wednesday 12 May

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e General Court ruled in Luxembourg v Commission (T516/18) and Engie, Engie Global LNG Holding Sàrl and Engie Invest International SA v Commission (T-525/18) that the European Commission was right to determine that Luxembourg tax authorities conferred a selective advantage to the Engie group.

AG Richard de la Tour: EU law precludes automatic recognition of refugee status of minors in order to ensure family reuni cation Wednesday 12 May

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Advocate General Richard de la Tour delivered his Opinion in Grand Chamber case C-91/20, Bundesrepublik Deutschland on the compatibility with Directive 2011/95 of national provisions granting refugee status to minors of a recognised refugee in order to ensure family uni cation.

AG Hogan: EU blocking statute may be invoked against EU operator’s compliance with sanctions even when it hasn’t been compelled to do so by third State Wednesday 12 May

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Advocate General Hogan advises the Court of Justice in Grand Chamber case Bank Melli Iran (C-124/20) to rule that Iranian undertakings may invoke the EU blocking statute (Regulation 2271/96) before national courts to block the application of foreign extraterritorial sanctions.

Public consultation on ‘EU’s digital principles’ Wednesday 12 May

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e European Commission launched a public consultation to establish ‘EU digital principles’, with the bene t of feedback from citizens, NGOs, civil society organisations, businesses, and more.

General Court annuls Commission State aid Decision on Luxembourg’s tax rulings in respect of Amazon Wednesday 12 May

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e General Court, in Luxembourg v Commission (T-816/17) and Amazon EU Sàrl and Amazon.com, Inc. v Commission (T318/18), annulled the European Commission’s Decision that Luxembourg tax authorities had conferred a selective advantage to the Amazon group in breach of Article 107 TFEU.

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European Ombudsman closes inquiry on transparency of advance purchase agreements for Covid-19 vaccines but the Commission to reinforce transparency in this area ursday 13 May

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e European Ombudsman issued a decision in joint cases 85/2021/MIG and 86/2021/MIG, not to make further inquiries in view of the Commission’s eﬀorts towards greater transparency around the negotiation of advance purchase agreements for COVID-19 vaccines and the publication of redacted versions thus far.

EBA publishes Report on convergence of supervisory practices in 2020 ursday 13 May

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e European Banking Authority published its Report on convergence of supervisory practices in 2020, se ing out the EBA’s observations on the extent of convergence of prudential supervisory practices undertaken last year, as well as the conclusions of the EBA college monitoring activity.

Vice-President Vestager’s statement following General Court’s tax rulings concerning Luxembourg ursday 13 May

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European Commission Vice-President Margarethe Vestager, in charge of Competition and State aid policy, delivered a statement concerning the General Court judgments on the compatibility with EU State aid rules of Luxembourg’s tax treatment of the Engie and the Amazon groups.

Council of Europe issues annual report on the state of democracy, human rights and the rule of law Friday 14 May

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e Secretary General of the Council of Europe presented her latest annual report on the state of democracy, human rights and the rule of law, which shows a ‘clear and worrying degree of democratic backsliding’ across the continent.

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Insights, Analyses & Op-Eds e EU Arti cial Intelligence Act and Access to Justice by Melanie Fink

Of auctoritas and potestas in the Banking Union: e ECB, the SRB, failing credit institutions and judicial review

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Op-Ed arguing that the use of AI systems by the public administration raises speci c challenges that should be addressed in the Commission’s proposal for an EU Arti cial Intelligence Regulation, such as more clarity on the benchmarks for decision-making and additional redress mechanisms.

by Barbora Budinská

From boars to courts – the landmark ECtHR case Xero Flor v. Poland

e Precautionary Principle Defeats all Challengers: e Court of Justice’s ruling in the Bayer case

by Jakub Jaraczewski

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Op-Ed on the Court of Justice’s judgment in ABLV Bank v ECB and Bernis and Others v ECB (C-551/19 P and C552/19 P), on if the European Central Bank’s assessments of whether a credit institution is ‘failing or likely to fail’ are mere preparatory measures in a complex procedure allowing a resolution scheme to be adopted for the concerned institution.

READ ON EU LAW LIVE

by Elijah Granet

Op-Ed on the ECtHR’s case Xero Flor w Polsce sp. z o.o. v Poland (application no. 4907/18), a historic case elaborating the status of a judge of a constitutional court; where a judge’s appointment and involvement in case violates Article 6(1) ECHR; and the rst major ruling of the ECtHR in a case directly related to the backsliding of the rule of law in Poland.

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Analysis of the Court of Justice’s dismissal of the appeal in C499/18, examining a disastrously weak appeal that shines light onto just how strong the precautionary principle is in interpreting the Plant Protection Product Regulation 1107/2009.

A new perspective on the protection of whistleblowers under the ECHR: Halet v. Luxembourg

Challenging Interpol Red Notices in the EU: the EU judgment in Bundesrepublik Deutschland (Notice rouge d’Interpol) on ne bis in idem and data protection

by Dimitrios Ka eranis

by Francesco Rossi

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Analysis of the ECtHR’s judgment in Halet v. Luxembourg (application no. 44166/15) on the criteria that qualify an individual as a whistleblower, speci cally in the context of the LuxLeaks, which provides more analysis of the underexplored concept of damage and sanctions, and highlights the dissenting opinions raising concerns of a chilling eﬀect on whistleblowers.

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Op-Ed on the Court of Justice’s Grand Chamber judgment Bundesrepublik Deutschland (Notice rouge d’Interpol) (C505/19), providing guidance about the scope and boundaries of the principle of ne bis in idem, as well as the consequent applicable standards of data protection in criminal ma ers for law enforcement goals: a ruling of paramount signi cance for the protection of fundamental rights in a multilevel legal se ing.

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Library - Book Review

By Edwin Alblas READ ON EU LAW LIVE

Mar Campins Eritja (Ed.)

e European Union and Global Environmental Protection: Transforming In uence into Action Review of a book that does ‘an excellent job in gathering scholars with diﬀerent strengths, expertise and perspectives as a way of gaining new insights on an overarching theme that increases in urgency on a daily basis’.