#RuleofLaw breakdown in #Poland: Just finished reading this meticulous, compelling and unprecedented ruling by the Amsterdam District Court whose potential ramifications for the functioning of EU legal order could be extremely significant. Thread ⬇️
1/ Historical significance: 1st time in legal history of EU (TBOMK) that a national court of EUMS has found judicial system of another EUMS as a whole to have been structurally disabled = judicial independence structurally gone in Poland = we have black hole in EU’s Area of FSJ
2/ 🇳🇱 Court’s (correct) diagnosis: no independent/effective Const Tribunal left; ENCJ-suspended NCJ not impartial/independent; Disciplinary Ch not a court; independence of SC & ordinary courts no longer guaranteed with disciplinary proceedings possible for applying ECJ case law
3/ Key factors underlying 🇳🇱 Court’s diagnosis: adoption of #MuzzleLaw + violation of several Polish and EU rulings by PL authorities, in particular ECJ order of 8 April 2020 as evidenced by Tuleya’s sham hearing (Dutch court only missed violation of SC Resolution of 23/01/2020)
4/ Timing all the more striking considering this week we learned @vonderleyen Comm has seemingly decided not to decide next step re Muzzle Law and violation of ECJ order of 8 April 2020. I mean we’re only talking about irreparable damage to EU legal order
5/ Broader perspective: 🇳🇱 ruling is terrible indictment of EU/MS’s failure over past 5 years to promptly act with resolve to stop destruction of PL judiciary with key actors oscillating btw dereliction of duties, façade of action, procrastination, too little/too late actions
6/ Strangest aspect: 🇳🇱 court's diagnosis is essentially the same as the Commission’s diagnosis (see 2019 European semester report for Poland) is essentially same as Dutch Court’s diagnosis: ec.europa.eu/info/sites/inf… 
7/ Problem: Commission has refused to draw logical consequences from its own (correct) diagnosis has repeatedly acted with infuriating slowness and failed to act against other crucial bodies which have been actively gangrening the Polish judicial system verfassungsblog.de/when-will-the-…
8/ Problem: Similarly ECJ in Celmer failed to accept reality and saved mutual trust by ignoring impossibility of having a fair trial in individual cases when system is structurally compromised as a whole with top courts captured & fake judges multiplying: reconnect-europe.eu/blog/dealing-w…
9/ NB: Issue is not that the vast majority of PL judges are not independent. 95% of them fulfil their duties professionally/bravely but they're faced with Soviet-style repression, incl criminal activities by PL’s MoJ (see secret troll farm) if they apply EU rule of law standards
10/ Consequence: Faced with EU’s failure to tackle #ruleoflaw backsliding we're seeing bottom up resistance emerging. Possible future: there may be point where nat couts will pull a 🇩🇪 FCC exception to prevent their legal orders from being contaminated by authoritarian gangrene
11/ Short term: 🇳🇱 court (see para 30) is doing EU Commission’s job re Disciplinary Chamber by giving opportunity to ECJ to look into violation of its order of 08/04/20 in absence of Commission acting promptly/with resolve. More details here on ECJ order: verfassungsblog.de/protecting-pol…
12/ What ECJ should do? IMO, it should agree with 🇳🇱 court’s analysis and move away from its Celmer test which is totally disconnected from (sad) reality of a *structurally* compromised judicial system as @PatrykWachowiec & yours truly explained here: verfassungsblog.de/1095-days-late…
13/ Risk of not accepting reality: EU legal order could come under threat of crumbling down in situation where puppet courts (eg PL/HU’s const “courts”) but also most reputable courts set aside EU law for opposing reasons: undermine EU rule of law or defend EU rule of law
14/ Regardless, in the short term, one may expect precedent-setting of this Dutch ruling to be significant and lead other national courts to at the very least refuse to extradite suspects under the EAW pending the ruling from the ECJ
15/ Medium-term: Potential huge ramifications as consequences will go beyond EAW to affect mutual recognition of judgments in civil/family/commercial matters (indeed how can you recognise/enforce judgments of courts lacking independence as it makes them no court tout court)
16/ Potential financial consequences: 🇳🇱 ruling gives all the reasoning/findings Comm would need to suspend EU funding to 🇵🇱 assuming new generalised deficiency conditionality regime is adopted and QM (or reverse QM) in Council is reached
(end/August twitter break starts now)
(end/August twitter break starts now)
