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UPGRADING RULE OF LAW IN EUROPE IN POPULIST TIMES
is abundantly clear that the general move in the direction of infusing the idea
of independence with more importance is fully aligned in the Area of Freedom,
Security and Justice and EU law sensu lato, as we have seen in Banco Santander
SA. All in all, the Union is going through a deep process of rethinking the idea
of judicial independence at the national level and this rethinking does not only
concern the Member States experiencing rule of law or democratic backsliding.
Instead it emerges as a general principle applying equally throughout the EU,
without touching the EC] itself, however, which is more concerned with respecting
the Member States (not always legal) power, caring less about the perception of
own independence.”
THE COURT OF JUSTICE JOINING THE GLOBAL TREND
The Court of Justice joined the game of domestic judicial design by international
courts,” which the European Court of Human Rights has been playing for years,
especially as far as the aspects of judicial independence and self-governance go.
The Court could in fact be inspired by its Strasbourg homologue in framing the
issue — even if the Strasbourg standards of judicial independence appear to go
further than what the Court of Justice has articulated so far, and include the
emerging notion of ‘internal judicial independence’,”® including the requirements
for judges ‘to be free from directives of pressures from the fellow judges or those
who have administrative responsibilities in the court such as the president of
the court or the president of a division in a court.’ Besides the ‘fake judges’
considerations,*° EC)’s efforts to neutralize the Disciplinary Chamber of the Polish
Supreme Court as not independent and threatening the very fabric of EU (and
Polish) legal order, could be viewed as a forceful intervention in support, precisely,
of the internal judicial independence. The same applies to the requirement of
2° Butler — Kochenov, Independence and Lawful.
David Kosai — Lucas Lixinski, Domestic Judicial Design by International Human Rights
Courts’ American Journal of International Law 109 (2015), 713-760.
Joost Sillen, The Concept of “Internal Judicial Independence” in the Case Law of the
European Court of Human Rights, European Constitutional Law Review 15 (2019), 104—
133.
29 ECt.HR Parlov-Tkalcié v. Croatia Application No. 24810/06, 22 December 2009. For a
detailed analysis of allthe relevant ECt.HR case-law, see, Sillen, The Concept of “Internal
Judicial Independence”.
Laurent Pech, Dealing with “Fake Judges” under EU Law: Poland as a Case Study in Light of
the Court of Justice’s Ruling of 26 March 2020 in Simplon and HG, RECONNECT Working
Paper (2020).
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