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UPGRADING RULE OF LAW IN EUROPE IN POPULIST TIMES
confers on individuals, thereby providing them with “supranational justice” and
upholding the rule of law within the EU’. The deep change at the heart of EU’s
constitutionalism has thus brought about seemingly nothing new: allthe elements
i.e. draws upon - form the on-going dialogue between the national courts acting
in their EU-law capacity and the Court of Justice to the need to ensure that
individuals can fully draw on their ‘legal heritage’”° of rights articulated at the
supranational level — have been with us all along. It is their reshuffling, in the light
of reinterpreting the requirements of Article 19(1) TEU as well as Article 47 CFR
in order to enable EU’s direct intervention — like in Commission v. Poland (The
Independence of Supreme Court) where a complete restoration of the status quo
ante has been ordered by the Court, undoing the so-called “judicial reform” — or an
indirect intervention — like in A.K. (The Independence of the Disciplinary Chamber
of the Polish Supreme Court), the Court instructing the Polish counterpart to
apply a clear test of independence to the questionable body at issue parading
as one of the chambers of the Polish Supreme Court, based on the substantive
meaning of judicial independence drawn from the analysis of Article 47 CFR.”
This combination of the possibility of direct and indirect intervention combined
with the perception of ‘nothing new’ is precisely the appeal and the strength of
the remarkable case-law over the last two years.
PREVENTING FAST DETERIORATION, WHILE EMPOWERING
THE LOCAL COURTS: INTERIM RELIEF
Having learnt from its failures to prevent the successful completion of the attacks
against the judiciary in Hungary,” the Court of Justice and the Commission
paid significant attention to ensuring that sufficient interim measures are put
in place in order to ensure that the attacks against the rule of law not continue
successfully following the Commission’s victories in court and during the process.
As with many other cases of relevance, the starting point of the interim relief
Koen Lenaerts, Our Judicial Independence and the Quest for National, Supranational and
Transnational Justice, in Gunnar Sevik — Michael-James Clifton — Theresa Haas — Luisa
Lourengo — Kerstin Schwiesow (eds.), The Art of Judicial Reasoning: Festschrift in Honour
of Carl Baudenbacher, Berlin, Springer, 2019, 155-174, 158.
20 Case 26/62 van Gend en Loos [1963] ECR 1 (special English edition).
2 Cf. Laurent Pech, Article 47(2), in Steve Peers et al. (eds.), The EU Charter of Fundamental
Rights: A Commentary, 2™ ed., Oxford, Hart Publishing, 2021.
2 Case C-286/12, Commission v. Hungary (Judicial Retirement Age) EU:C:2012:687. Dimitry
Kochenov — Bard, Petra, The Last Soldier Standing? Courts versus Politicians and the Rule
of Law Crisis in the New Member States of the EU, European Yearbook of Constitutional
Law 1 (2019), 243-287.
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