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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). 27 28 30 * 393 +
