Who guards the goalkeepers in Europe? – Alberto Alemano

European judges are taking legal action, given the failure of EU institutions to uphold the rule of law.

Populism unmasked: the de facto Polish leader Jarosław Kaczyński has resisted all EU efforts to uphold the rule of law (Wiola Wiaderek/shutterstock)

Over the past decade, the European Union has been embroiled in a confrontation with Poland and Hungary over violations of the rule of law and other common EU values, such as democracy, justice. equality and human rights, by both countries.

While the European Commission has opened the procedure provided for by the Treaty on European Union (item 7) to hold governments accountable when their actions threaten the block’s core valuesthe Council of the EU has avoided holding a vote which could have deprived these countries of their right to vote. He did this on the assumption that Hungary and Poland would cover themselves in the European Council with their right of veto, thus blocking the adoption of such a sanction.

Descent of conditionality

In an attempt to break the political stalemate, the commission has attempted to establish alternative channels of scrutiny over rebellious member states, based on peer pressure – such as the annual rule of law report. But it didn’t help.

More recently, the EU institutions have also agreed that the disbursement of funds from the NextGenerationEU programme, established to stimulate post-pandemic recovery, would be conditional on respect for the rule of law. Yet, while the Hungarian national recovery plan as part of the package has yet to be approved, in June 2022 the commission gave a qualified green light to the Polish proposal, followed by the council.


As pointed out by some members of the committee who expressed their disagreement, this happened despite the decision of the Court of Justice of the EU to declare in July 2021 that the Polish government, dominated by the populist Law and Justice party, had breached the rule of law with its "reforms" of the system of judicial discipline. The decision, however, received political credibility thanks to Poland's generous hosting of 1.5 million Ukrainian refugees.

The commission's proposal made the disbursement of funds conditional on compliance not with the court's decision but with a set of less demanding "steps". Instead of being forced to reinstate the suspended judges, as the CJEU had insisted, Poland was now simply required to consider the possibility.

The descent was denounced by the European Parliament and the members of the legal community. Not only has the commission failed (once again) to act as guardian of the treaties. By tacitly allowing EU member state governments to delegitimize the CJEU, it has – supported by the Council – breached the very principle of the rule of law that it is supposed to uphold.

Contested decision

This unprecedented situation revealed the existence of another mechanism for monitoring respect for the fundamental values ​​of the EU. If EU institutions prove unable or unwilling to uphold the rule of law, the baton must pass to civil society. This is exactly what happened last week, when four European associations of judges disputed the decision approving Poland's recovery plan in an application to the General Court of the EU.

This is not only the first time that European judges have come together to bring a case before the Luxembourg court - against their own governments - but also the first trial aimed at preserving the EU judicial system in its together. If the immediate objective of the associations of magistrates is to express their solidarity, in particular with the Polish judges suspended and sanctioned for application of Union law, their ultimate intention is to allow the Court to recover its authority vis à vis non-compliant member states and council.

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This unprecedented case has major legal and political ramifications, which transcend the quarrel between Brussels and Warsaw. Legally, it reveals a hitherto neglected channel upholding the rule of law within the EU legal order. This appears potentially capable of filling the gaps left open by an incapable or reluctant commission and an accomplice council.

When EU institutions fail to uphold the rule of law and deviate from CJEU rulings, the European judicial system could act as the ultimate guardian of the treaties, protecting the integrity of the EU legal order. This could be done directly, as in the case of the action of the associations of European judges, or indirectly, via a referral to the CJEU by the national courts.

Powerful reminder

Politically, the case should not only play a role in assessing the "milestones" set for Poland and therefore its chances of obtaining the recovery funds before the parliamentary elections in autumn 2023. It could also impinge on the commission's assessment of the Hungarian national plan, the only one that has not yet been approved.

Regardless of its outcome, this unprecedented case has already sent a powerful reminder to all EU institutions: any deviation they may undertake from the rule of law will not go unnoticed. The EU justice system was designed to withstand the worst possible attacks, even when they come from within.

Alberto Alemanno is Jean Monnet Professor of European Union Law at HEC Paris. He provided legal advice to associations of European judges who challenged the approval of Poland's recovery plan through his non-profit organization, The Good Lobby.

Mary I. Bruner