8
Under Pressure: Building Judicial
Resistance to Political Interferences
KATARÍNA ŠIPULOVÁ1
I, INTRODUCTION
T
HE TREND OF the judicialisation and empowerment of courts after the
Second World War has become an axiom of legal scholarship.2
We have
witnessed courts becoming more visible, more powerful and, eventually,
also more political.3
As a result, courts significantly constrain executives and
function as checks against illiberal policies. The empowerment of courts has
also led to substantial changes in the scope of executives' powers, removing
certain areas from their political control.
It therefore hardly comes as a surprise that periods of judicialisation were
followed by waves of political backlash against courts and judges world-wide.4
While attacks on courts are not a new phenomenon and we can trace tendencies
to remove non-con forming judges back to previous centuries, the court-curbing
techniques employed in the last decade stand out as more frequent and more
sophisticated.5
Moreover, episodes from Central Europe demonstrate that these
attacks are not isolated to non-democratic regimes. Many populist leaders''
' T h e research leading to this chapter has received funding from the European Research
Council (KRC) under the European Union's Horizon 2020 research and innovation program (grant
no 67837.5- J U D I - A R C H - E R C - 2 0 1 5 - S T G ) .
2
G Helmkc, Judicial Manipulation in Latin America, available at www-grctchenhelmke.com/
uploads/7/0/3/2/7032yK43/judicial_iTiaiiipulation_helmkc.pdf.
i
S Roscnbaum. 'Courts as Political Players' (2019) 8 Israel Journal of Health Policy Research 32;
M M Taylor. 'Beyond judicial Reform: Courts as Political Actors in Latin America' (2006)41(2) Latin
American Research Review 269; RB Chavez. The Rule of Law in Nascent Democracies: Judicial
Politics in Argentina (Standford, C A , Stanford University Press, 2004); S Gloppen and R Gargarella
and E Skaar. Democratization and the Judiciary: The Accountability Function of Courts in
Hew Democracies (London, Frank Cass, 2004); B llugaric and iVI Tushnet, 'Court-packing, Judicial
Independence, and Populism. Why Poland and the United States Are Different' Verfa<sui:g<hio^.
11 [uly 2020, https://vcrfassiuigsblog.de/court-paijking-iudicial-iiHlependeiice-aiid-populisrn/.
+
Helmkc(n2).
J
D Kosaf and K Sipulova, ' H o w to Fight Court-packing?' (2020) 6 Constitutional Studies 133.
6
There are different types of populism. For the purposes of this chapter, I am using Bugaric's
and Mudde and Kaltwasser's definition tying populism to anti-pluralist and illiberal politics.
154 Katarina Sipulová Under Pressure: Building Judicial Resistance to Political Interferences 155
do not shy away from blatant political interferences, packing the courts with
loyal nominees, hijacking selection procedures7
or attempting to discredit and
delegitimise the courts in the eyes of the public.
Some of the most striking examples of the crusades against the courts
come from Poland, owing to the skilful use of media by the leading party, Law
and Justice (PiS). In summer 2019, the Polish news portal Onet.pl exposed the
Ministry of Justice's online campaign designed to discredit a specific group of
judges. In February 2020, PiS went even further, funding a new documentary
series on Polish state television (also fully controlled by the government) called
Kastas
{The Caste), which depicted judges as corrupt and incompetent. The goal
of the series did not leave any room for confusion. Daily episodes broadcast for
over a month picked out the most controversial judgments and episodes of judicial
conduct, labelling them as hurtful, corrupt and unjust.5
* What is even more
worrying, the programme received an enormous $2 million from the government
and featured on billboards and in television spots with black-and-white
photographs accompanied by slogans such as 'a judge stole a sausage from a
shop', or c
a drunk judge found fighting in a bar'. While some of the portrayed
stories were truthful, the majority were simply exaggerated.
The vibrant examples of political interference naturally spurred a lot of
academic interest, exploring strategies by which political leaders rig, pack and
dismantle the courts,1 0
and what formal and informal safeguards can prevent
them from doing so.1 1
Nevertheless, very little attention has been paid so far to
how courts react and what tools they have to protect themselves from imminent
political attacks. The existing evidence is mostly anecdotal.1 2
This chapter bridges this gap and steps into the field with a unique study
of judicial reactions to court-curbing attacks. Based on examples from Poland,
Hungary, Czechia and Slovakia, it offers a systemisation of judicial resistance
strategies which domestic courts have at their disposal when facing an imminent
political attack, and discusses their effectiveness.
See B Bugaric, 'The Two Faces of Populism: Between Authoritarian and Democratic Populism' (2019)
20 German Law Journal 390; C Mudde and C R Kaltwasser, 'Studying; Populism in Comparative
Perspective: Reflections on Contemporary and Future Research Agenda' (2018) .51 Comparative
Political Studies 1667; or |W Midler, What is Populism? (Philadelphia, University of Pennsylvania
Press, 2016).
7
Kosař and Sipulová (n 5).
8
The derogatory title actually comes from the unfortunate occasion when Polish judges called
themselves the upper caste of Polish population.
'See www.tvp.info/46255229/ltasta, also www.theatlantic.com/ideas/archive/2020/01/disturbingtampaign-againBt-polish-judges/605623/
and https://poiandin.com/46515871/analysis-judging-the-
judges-takes-political-ccntre-stage.
1 0
Kosař and Sipulová {n 5).
1 1
G Helmke and J Staton, ' T h e Puzzling Judicial Politics of Latin America: A Theory of
Litigation, Judicial Decisions, and Interbranch Conflict' in G Helmke and J Rios-Figueroa (eds),
Courts in Latin America {New York, Cambridge University Press, 2011).
n
For a rare exception, see Trochev and Flier, who however focus exclusively on off-bench alliances
of judges. A Trochev and R Kllert. 'Judges and Their Allies: Rethinking Judicial Autonomy through
the Prism of Off-BenCh Resistance' (2014) 2 Journal of Law and Courts 67.
The chapter proceeds as follows. Section II offers a bird's-eye view on courtcurbing
practices implemented in four Central European countries: Hungary,
Poland, Slovakia and Czechia. Section III defines judicial reactions and proposes
their categorisation, discussing various examples of individual strategies applied
around the world. Section IV concludes with a suggestion that most common
judicial reactions, involving invalidation of an interference, are effective only in
regimes that abide by the rule of law. If executives stop respecting the principles
of judicial independence, judges have to rely on more informal strategies, among
which accumulation of public trust plays a vital role.
II. POLITICAL ATTACKS AND COURT-CURBING PRACTICES
Attacks on the judiciary may come from many directions, with the quality and
independence of courts being scrutinised by the media or the wider public.
Nevertheless, the most dangerous types of attack are those coming from the
executives, who can use these attacks to get rid of an important veto player,
alienate courts from citizens, dismantle courts or, at the very worst, turn courts
into a weapon against their enemies. This chapter therefore concentrates on
judicial reactions to political attacks.
Depending on their aim, political attacks against courts take various forms
(Table 8.1). One of the most common attacks, attractive to both democratic and
non-democratic executives, is court-packing.1 3
Court-packing strategies aim to
change the composition of the existing court by enlarging, emptying or swapping
its judges, leaving the executive power with a new, loyal majority on the bench.
A similar effect can be achieved by a monopolisation of judicial selection (ie absolute
control and removal of veto players involved in the selection of new judges).
Another court-rigging strategy aimed at controlling the courts is delegated
governance. This strategy allows political actors to keep up a pretence of judicial
independence by controlling a small number of judges in top managerial
positions. The low-cost technique was particularly popular in Eastern Europe
during communist rule, where it secured the communist parties a high level of
loyalty among judicial ranks.1 4
Some political attacks interfere with courts' decision-making more openly
(politicisation), exerting direct pressure on judges in order to achieve a favourable
result in high-profile cases. A n example of such a politicisation strategy is
'telephone law', ie unsolicited calls in which politicians urge judges or court presidents
to resolve a given case in a particular way.1 5
The most recent evidence of
l 3
KosaFand Sipulová (n 5).
M
D Kosař, 'Politics of judicial Independence and Judicial Accountability in Czechia: Bargaining
in the Shadow of the Law between Court Presidents and the Ministry of Justice' (2017) 13 European
Constitutional Laiv Review 96.
}S
K Hendley "Telephone Law" and the "Rule of Law": The Russian Case' (2009) 1 Hague Journal
on the Ride of Law 241. See also M Popova, Politicized Justice in Emerging Democracies: A Study of
156 Katarina Sipulová Under Pressure: Building judicial Resistance to Political Interferences 157
telephone law comes from Slovakia, which revealed a group of judges exchanging
thousands of text messages with an influential oligarch currently charged
with murder, corruption and tax offences.16
A more far-seeing invasive strategy, jurisdiction stripping, seeks completely
to incapacitate and remove the courts from the decision-making process
Executives typically opt for this step if the office-stripping, ie removal of rebellious
judges, is too costly or otherwise impossible.1 7
A n example of jurisdiction
stripping may be found in the exception of any fiscal legislation from the scope
of the constitutional review in the 2011 Hungarian constitution,1 8
or the removal
of administrative jurisdiction from the existing courts into a completely new
branch of the judiciary.l y
Finally, attacks pressuring the courts can also be implemented by other
informal means, be it limiting the career options of judges after they leave the
bench,2 0
or steering the media against the courts with the aim of denting public
confidence and trust in the courts.
Table 8.1 Types of political interference
Court-packing21
Expanding, lowering the number of judges or swapping
judges on board
Contained selection Monopolising the selection and appointment process
Delegated governance Control of courts via court presidents
Jurisdiction stripping Removal of policy arenas, restricting guidelines for review
and legal interpretation, limitation of access to courts
Politicisation Exerting pressure on the result of decisions {telephone
justice, street protests, rhetorical signalling)
Other pressure Disregarding the decision, limiting career options of
judges after leaving the bench
Source: author.
Courts in Russia and Ukraine (New York, Cambridge University Press, 2012), and A Ledeneva,
'Telephone Justice in Russia' (2008) 24 Pos; Soviet Affairs 324.
1 6
M Ovidek, 'Deep Rot in Slovakia' Verfassingsblog, 15 October 2019, https://verfassungsblog.de/
deep-rot-in-Slovakia/.
" M M Taylor, 'The Limits of Judicial Independence: A Model with Illustration from Venezuela
under Chavez' (2014) 46 Journal of Latin America Studies. Sec also L Hilbink, ' T h e Origins of
Positive Judicial Independence' (2012) 64 World Politics 587.
8
It Uitz, 'Can You Tell when an Illiberal Democracy Is in the Making? A n Appeal to Comparative
Constitutional Scholarship from Hungary' (2015) 13 International fournal of Constitutional
Law 279.
1 9
T h e Law on rhc Administrative Courts - T/3353; K Than, 'Hungary to Set Up Courts
Overseen Directly by Government' Reuters, 12 December 2018, h t t p s : / / p e t m a . c c / N T 9 M - W Z X C;
ICJ, 'Hungary: ICJ Calls for Reconsideration of the Law on the Administrative Courts'
(20 December 2018) https://perma.cc/U5SZ-WWAX.
2 0
E Ratuseyer, 'The Puzzling (In)Dcpendence of Courts. A Comparative Approach' (1994) 23
Journal of Legal Studies 721.
2 1
Kosaf and Sipulovä (n 5).
Constitutional crises in Central Europe have brought into being all the aforementioned
forms of attacks. Populist leaders such as Kaczyfiski and Orban have
insrigared crusades against the courts, striving to strip them of powets and fill
them with loyal judges, or at least to incapacitate the non-aligned ones.
Hungarian Prime Minister Victor Orban introduced his first court-curbing
proposals immediately after his overwhelming electoral win in 2010. He first
monopolised the selection of constitutional justices, removing the requirement
of a joint decision by the government and the opposition.2 2
He then increased the
number of Constitutional Court justices from eleven to fifteen, gaining a majority.
The aim of his reforms was, however, not only to have a loyal Constitutional
Court, but also to weaken it. Tire new constitution therefore stripped the
Constitutional Court of the power to review any law related to fiscal policies.2 j
His next target was the Supteme Court (Kiiria), whose former leader, Andris
Baka, was a vociferous critic of Orban. The reconstruction of the Supreme
Court, although presented as a merely formal matter, cost Baka his post as court
president, as the amending law presumed the renomination of all court functionaries,
while simultaneously altering the conditions applying to candidates
in a way that Baka, a former judge of the European Court of Human Rights,
(ECtHR) cleatly did not meet.2 4
Genetal courts were next in line. Through a
series of smaller technical laws (such as the lowering of the retirement age of
judges), he effectively packed the most senior positions with his own nominees.
Finally, in 2019, he completed his assault by stripping the existing coutts of a
part of their agenda and creating a new branch of administrative courts.2 5
In Poland, Jaroslaw Kaczynski, the leader of the PiS, approached courtcurbing
in a similar fashion. Although not enjoying a constitutional majority in
parliament (Sejm), he orchestrated a set of smaller reforms, monopolising the
selection processes, stripping some courts of their jurisdictions, and silencing
them with the threat of disciplinary proceedings.26
Kaczyiiski's arch enemy was the Constitutional Tribunal, whose jurisprudence,
in his view, imposed 'blocks on government policies aimed at creating
a fairer economy'.2 7
The animosity between Kaczyriski and the Tribunal goes
back to the PiS's first government of 2006-07, when the Ttibunal quashed all the
legislative proposals adopted under Kaczyhski's rule. In 2017, in a controvetsial
» U k z t n l « , .
" i b i d .
2 4
D Kosař and K Sipulová, ' T h e Strasbourg Court Meets Abusive Constitutionalism: Baka
v Hungary and the Rule of Law' (2018) 10 Hague fournal on the Rule of Law 8.3.
1 1
Act T/8016 resurrected the attempt to install a separate branch of administrative courts from
2018, which the government originally dropped under the pressure of international organisations.
For more, see R Uitz, ' E U Rule of Law Dialogues: Risks - in Context' (2020) Verfassungsblog,
22 January 2020, available at https://verfassungsblog.de/eu-rule-of-law-dialogues-risks-in-context/.
* F Z o l l and L Wortham, 'Judicial Independence and Accountability: Withstanding Political
Sttess in Poland' (2019) 42 Fordbam International Law fournal 875.
2 7
B Bugaric and Tushnet (n 3).
158 Katarína Sipulovä Under Pressure: Building Judicial Resistance to Political Interferences 159
and highly contested step, the PiS decided not to appoint three new constitutional
justices legitimately selected by the previous Sejm.2 8
The government
subsequently paralysed the Tribunal and rendered it harmless by a combination
of jurisdiction-stripping and court-packing.2
'
rCaczyriski's toughest stick to beat the courts with, however, was the questionable
use of accountability mechanisms. Kaczyriski's minister of justice
frequently initiated disciplinary proceedings against judges who opposed
his policies. Moreover, the government adopted a controversial 'muzzle law'
which forbade judges from reviewing the judicial independence of their newly
appointed peers.30
The Slovak and Czech judiciaries faced a different, more informal type of
court-curbing. After the division of Czechoslovakia in 1993, Slovakia fell under
the semi-authoritarian rule of Vladimír Mečiar. Non-democratic tendencies
targeted the courts as Mečiar attempted to control the judiciary through the
Ministry of Justice and to punish any rebelling judges through disciplinary
measures and financial penalties. The most flagrant example of interference
happened around the 1994 dispute in which Meciar's party attempted to annul
the election of fifteen opposition deputies (which would, if successful, have left
the government with the three-fifths ruling majority needed for the implementation
of any constitutional change). When the Constitutional Court blocked the
attempt, the government reciprocated with a set of 'saving measures', ridding
the Chief Justice of the Constitutional Court of, among others, a personal driver
and security.31
In 2003, five years after the fall of Meciar's regime, Slovakia introduced the
Judicial Council, transferring considerable powers to the judiciary.3 2
However,
the transition from a government-controlled judiciary to an independent one
was not smooth. The old elites managed to hijack the Judicial Council and use
it to capture the judiciary from the inside, staffing the most senior positions
with subservient and obedient judges. The level of corruption was revealed
only recently, during the investigation of the shocking assassination of a young
journalist, Ján Kuciak, and his fiancee, Martina Kušnirová. The investigation
pointed to an informal network between judges, high governmental functionaries
and oligarchs, securing favourable judgments in proceedings relating to their
economic interests.33
2 8
T h e decision was in part a retaliation for illegitimate and premature selecrion of two more
constitutional justices hy the previous government. Z o l l and Wortham (n 25).
2 9
W Sadurski, Poland's Constitutional Breakdown {Oxford, Oxford University Press, 2020).
3 3
T H E M I S , 'Close to the Point of N o Return' (2020) http:/ythemis-sedziowie.eu^atcrials-iii-english/
close- to-the-point-of-no-rctuni-current-sitliation-of-polish-judiciary/.
3 1
H Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago,
University of Chicago Press, 2004).
3 2
S Spáč, K Šipulová and M Urbániková, 'Capruring the Judiciary from Inside: The Story of
Judicial Self-governance in Slovakia' (2018) 19 German Law Journal.
3 3
O v á d e k ( n 16).
Czechia has so far enjoyed top scores for judicial independence, with a
relatively strong and influential Constitutional Court. There were, however,
also a couple of episodes in which political groups attempted to interfere with
courts' decision-making or to staff the apex court with aligned judges.3 4
At
the beginning of 2019, the former chief justice of the Supreme Administrative
Court, Josef Baxa, and a constitutional justice, Vojtěch Simiček, testified to
the media that they had repeatedly been approached by a political advisor to
President Miloš Zeman, attempting to influence their decisions in high-profile
cases related to the office of the president or the selection of new judges for the
Supreme Administtative Court.3 5
This mix of court-curbing techniques makes the Central European region
an excellent choice for a probing study of judicial reactions to political interferences
and tinkering with judicial independence. All four countries started off as
young transitioning democracies. They all enjoyed some level of judicial independence.
However, they also faced different forms of political attacks upon
judicial independence at different stages of their regime consolidation. The
exploration of judicial teactions to these political interferences therefore allows
us anintetesting analysis of the effectiveness of judicial resistance, depending on
the type and motive of political attack.
III. CATEGORIES OF JUDICIAL RESISTANCE
Although notoriously called 'the least dangerous branch',3 6
courts do have a set
of tools they can use to resist political attacks. For the purposes of this chapter,
I address these as 'judicial resistance', which I understand as a set of techniques,
tools and practices which courts or individual judges can use to prevent, avert,
stay or punish imminent political attacks on judicial independence.
Judicial resistance analysed in this chapter addresses only those responses
that can be instigated by courts or judges. It does not include changes to the
institutional set-up aimed at raising the level of judicial independence, or preventive
measures such as tenures Of judicial salaries which typically aim to shield
judges from corruption or patronage. Judicial resistance can be implemented
both by courts as a part of their decision-making authority, and by individual
judges acting in their personal capacity. This means that judicial resistance
includes both techniques and tools implemented Oft and off the judicial bench
(Table 8.2).
3 4
T h e most controversial example was a repeated attempt hy President Klaus to remove
Chief Justice of the Supreme Court Iva Brožová from office. Sec Kosař (n 14).
3 5
O Kundra and A Procházková, 'Pozor, volá Mynář' Respekt, 5 January 2019, www.respekt.C7y
tydenik/2019/2/vola-mynar.
3 6
A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis,
IN, Bobbs-Merrill, 1962),
160 Katarina Sipulová
Table 8.2 Categorisation of judicial resistance
On bench: Strategic judicial
decision-making
Off-bench: Extra-judicial
pressure
Averting Timing of decisions
important to public
Pivoting
Delaying decisions important
to government
Pushback against government
Off-bench
pressure
Organised judicial
action (JU)
High-risk individual
judicial activism
Invalidating (Constitutional) review of
legislation
embedded competence
derived competence
Petition to an international
court for a review
Allied pressure Transnational judicial
networks
Political opposition
pressure
Media pressure
Academic pressure
Public riors
Source: author.
On-bench resistance translates into strategic judicial decision-making, with
which judges attempt either to avert the imminent looming attack by raising
its costs for the political actor, or to invalidate it by legally quashing a political
decision and proclaiming it illegal or unconstitutional.
Off-bench resistance, or extra-judicial pressure, refers to a set of strategies
by which judges themselves engage in high-risk individual activism outside the
courtroom - individually acting off-bench, or by allying with public, opposition
or media.
1. Invalidation as Strategic Decision-making
The majority of judicial reactions to constitutional crises in Central Europe
have occurred on a formal level, with courts using various jurisdictional tools
to invalidate the political interferences of domestic governments. The great reliance
on formal tools is understandable. First, it is the most direct way in which
courts can make use of their decision-making competence and address assaults
upon judicial independence. Second, the common characteristic of courtcurbing
practices implemented in Central Europe was their legal character and
a pretence of constitutionality'7
The use of invalidation techniques depends to a large extent on the given
constitutional design and the competences wielded by respective courts.
All four Central European countries recognise a constitutional review of
3 7
Kosař and Šipulová <n 5).
Under Pressure: Building Judicial Resistance to Political Interferences 161
legislation vested in constitutional courts. Moreover, they all also commit to
principles of judicial independence in their domestic constitutions and in international
law. This opened two major forms of invalidation techniques for their
judges: invalidation through domestic (constitutional) legislative review and
petition to a supranational court.
An example of a judge successfully using constitutional review to protect her
function is the repeated attempt by Czech President Václav Klaus to remove the
Chief Justice of the Supreme Court, Iva Brožová, and replace her with his own
candidate, closely linked to his former conservative party.3 8
In a set of three cases
initiated by Brožová3
' the Czech Constitutional Court significantly limited the
competence of the president and minister of justice to interfere in 'court high
politics' and arbitrarily influence and change the personal composition of the
judiciary.
Courts are in more difficult situation if the executive has enough power to
pass court-rigging legislation via constitutional amendments,4 0
as their review
requires that the principle of judicial independence is formally embedded in
the constitution as an eternity clause. Nevertheless, many courts were recently
able to derive unwritten eternity clauses on their own, adopting the doctrine of
'unconstitutional constitutional amendment'4 1
even without an explicit textual
provision.4 2
For example, the Slovak Constitutional Court in 2019, amidst rising
public criticism of corruption and patronage in the judiciary, struck down the
constitutional amendment seeking to introduce security clearances for Slovak
judges, claiming that judicial independence is the main component of the
unamendable core of the Slovak Constitution.4 3
The second type of invalidation technique is available to courts in countries
which locked-in the cote principles of judicial independence via commitments
to various international human tights treaties.44
Favourable rulings of international
courts may serve as an important signal for overly creative political
leaders, impose sanctions on court-curbers and give domestic judges another
layer of legitimacy.
In the European setting, the European Convention on Human Rights
('Convention') and the E C t H R in particular have long represented an important
3 8
The attempts were motivated by a wish to select his own candidate, Bureš, into the position.
3 5
Czech Constitutional Court, judgments no II ÚS 5 3 / 0 « , PI US 17/06 and PI US 87/06.
4 0
A s was the case in Hungary; see G Lengyel and G Ilonszki, 'Simulated Democracy in
Pseudo-transformational Leadership in Hungary' (2012) 1 Historical Social Research 107, 108.
4 1
D Landau, R Dixon and Y Roznai, 'From an Unconstitutional Amendment to an Unconstitutional
Constitution? Lessons from Honduras' (2019) 8 Global Constitutionalism 40.
4 2
Y Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment
Powers (New York, Oxford University Press 2017); R Albert, 'Constitutional Amendment and
Dismemberment' (2018) 43 Yale Journal of International Law 1.
4 3
l o r more detail, see Slovak Constitutional Court, judgment no PI ÚS 21/2014 of January 30,
2019, or M Domin, 'A Part of rhe Constitution Is Unconstitutional, the Slovak Constitutional Coutt
Has Ruled' Verfassungsblog, 8 February 2019, https://verfassungsblog.de/a-part-of-theconstitutioli-
is-unconstitutional-the-slovak-constitutional-court-has-tuleoV.
^ O n explanation of the locking-in strategy, see A Moravcsik, 'The Origins of H u m a n Rights
Regimes: Democratic Delegation in Postwar Europe' (2000) 54 International Organization 217.
162 Katarina Sipulovä under Pressure: Building Judicial Resistance to Political Interferences 163
obstacle to violations of democratic standards, including attempts to capture
the courts.4 5
Individual complaints coming from domestic judges led to a string
of rulings and pilot judgments which determined clear rules on how to structure
domestic judiciaries in order to comply with the Convention.4 6
The best-known
example of judges seeking redress in the E C t H R is the case Baka v Hungary? a
petition of the aforementioned former Hungarian Chief Justice of the Supreme
Court, András Baka, who successfully argued that the premature termination
of his mandate was a retaliation for his criticism of governmental reforms. An
even more interesting example is the latest E C t H R judgment Xero Flor, which
was brought to Strasbourg by a private company arguing that one of the Polish
Constitutional Tribunal justices hearing its case has not been elected in accordance
with the domestic law.4 8
The Strasbourg court, however, played a less well-known role in the case of
Slovak judicial independence and the attempts of the Iveta Radičová government
in 2011 to break down a patronage network inside the Supreme Court. In 1997,
Prime Minister Mečiar chose Štefan Harabin, the former Chief Justice of the
Supreme Court, as his minister of justice. Not only did Harabin manage swiftly
to polarise the judiciary, but he also vastly utilised his power to appoint close
allies and friends to important positions.4 9
In 2009, Harabin managed to secure
his election as chairman of the newly established Judicial Council and as Chief
Justice of the Supreme Court. Since then, he has purposefully used his combined
functions to oversee selection processes and to threaten opposing judges.
In 2011, the new government repeatedly attempted to end Harabin's rule
by the initiation of disciplinary proceedings. Nevertheless, Harabin successfully
challenged the disciplinary proceedings before the E C t H R on procedural
grounds, arguing that his guarantees of independence had been violated. Not
only did he win the case, but he also presented the government's repeated attempts
to dismiss him from the position of Chief Justice as blatant interferences with
his independence in various international fora.5 0
The government's efforts to
dismiss Harabin were, without doubt, politically motivated. Irrespective of the
moral of the story, Harabin managed to successfully use the E C t H R as a shield
to protect his mandate.
A second international forum that courts can use to counter political interference
is the preliminary ruling procedure at the Court of Justice of the European
Union (CJEU). This procedure allows national judges to ask the CJEU to interpret
the compatibility of new legislation with EU law. Compared to infringement
proceedings initiated by the European Commission, preliminary rulings also
4 5
D Kosař and L Lixinski, 'Domestic Judicial Design by International H u m a n Rights Courts'
(2015) 109 American Journal of International taw 713.
4 6
S Trechscl, Human Rights in Criminal Proceedings (Oxford, Oxford University Press, 2005).
4 7
E C t H R , G C judgment Baka v Hungary 23 June 2016.
4 1
E C t H R , Zero Flor v Poland, 4907/18, judgment of 7 May 2021.
4 5
Spáč, Šipulová and Urbániková (n31).
í 0
E C t H R , Harabin V Slovakia judgment, 20 November 2012.
have a time benefit: they allow domestic judges to stay existing proceedings
until the CJEU has decided. This advantage was demonstrated by Orban and
Kaczynski's court-packing statutes lowering the retirement age of judges.
In 2012, Orban proposed lowering the retirement age of judges from seventy
to sixty-two years, arguing that the step would make the courts more efficient,
open up positions to younger unemployed judges and cleanse the judiciary of
the communist burden.5 1
In effect, Orban got rid of 274, mostly senior, higher
court judges.52
The controversial step spurred the European Commission to
instigate infringement proceedings against the Hungarian government, in which
the CJEU found the reviewed legislation in violation of E U law.5 3
Yet, the judgment
came far too late, only after targeted judges had already had to leave their
posts.
In 2017, following the Hungarian example, Kaczyriski also announced legislation
lowering the retirement age of judges from seventy to sixty-five years.5 4
The European Commission turned to the CJEU once again; nevertheless, a case
was also brought before the CJEU by the national judges.5 5
The CJEU swiftly
issued a preliminary order5 6
staying the domestic proceedings and subsequently
found a violation of E U law,5 7
stopping the wholesale removal of at least some
of the most senior Polish judges.58
A downside to invalidation strategies is that compliance with the invalidation
ruling still lies in the hands of the relevant government. While we can
expect democratic regimes to submit to the voice of the judiciary, less can be
expected from non-democratic countries, dictatorships or even populist leaders
leaning towards semi-authoritarianism, as was recently demonstrated in
Poland. The CJEU's finding that the change in the National Council of the
Judiciary and its role in the selection of judges violates principles of judicial
independence59
provoked a rebellious answer from PiS, unheard of in the E U
setting. Not only did the government openly condemn the j udgment, but it also
immediately issued another express law explicitly forbidding the courts from
following the CJEU's ruling,6 0
and eventually started disciplining domestic
5 1
Kosa? and Sipulova (n 5); U Belavusau, ' O n Age Discrimination and Beating Dead Dogs:
Commission v Hungary' (2013) 4 C M L Rev 1145.
5
- G Halmai, 'The Early Retirement Age of the Hungarian Judges' in F Nicola and B Davies (eds),
E U Law Stories: Contextual and Critical Histories of European Jurisprudence (Cambridge,
Cambridge University Press, 2017).
5 3
C J E U , European Commission v Hungary, C-286/12, judgment of 6 November 2012.
! 4
Z o ] l and Wortham (n 25).
5 5
C J E U , European Commission i>Poland, C-619/18, judgment of 26 June 2019.
3 6
C J E U , European Commission v Poland, C-619/18 R, deeision of 17 December 2018.
5 7
C J E U (n 52) (in relation to the Supreme Court) and European Commission V Poland, C-192/18,
judgment of 5 November 2019 (in relation to lowet courts' judges).
4 H
P Bogdanowicz and M Taborowski, 'Why the E U Commission and the Polish Supreme Court
Should Not Withdraw their Cases from Luxembourg' Verfassungsblog, 3 December 2018.
5 y
C J E U , Krajowa Rada Sadownictwa, Joined cases C-585/18, C-624/18 and C-625/18, A.K., CP
and D O , judgment of 19 November 2019 and C J E U , A.B, C-824/18, judgment of 2 March 2021.
6 0
C J E U , Commission v Poland, C-791/19, order of 8 April 2020.
164 Katarina Sipulovä Under Pressure: Building Judicial Resistance to Political Interferences 165
judges for further asking the CJEU to interpret the independence of their newly
appointed peers.61
2. Averting Strategies
A second type of strategic decision-making courts can adopt is averting a
looming political attack. If a government is threatening courts with plans for
jurisdiction stripping, containing of the selection process or court-packing,
courts might seek to avert the threat by raising the costs or lowering the benefits
for the political authority, hence forcing it to backtrack. Generally speaking,
courts can achieve this either by demonstrating their loyalty (pivoting) or by
strategically timing their decisions and pusbback against the government.
While we have seen many examples of pivoting or strategic timing of decisions
in Latin America6 2
and the United States,63
Central European courts
typically opt for much less dramatic departures from their case law and instead
rely on heavy technical language,6 4
This was, for example, a common practice in
the Slovak Constitutional Court under Meciar's rule. The Constitutional Court
played an important balancing role, stopping the prime minister from taking a
number of controversial steps and concentrating too much power in the hands
of government-controlled bodies. Nevertheless, apart from a couple of instances
such as the financial cuts mentioned above, it managed to slip mostly under
Meciar's radar. One of the common interpretations is that lengthy reasonings
devoid of direct references to democracy or backsliding, paired with a highly
technical textual interpretation, helped the court to retain the image of a relatively
harmless opponent,
A different scenario played out in Czechia. Considering its power and
normative influence, the Czech Constitutional Court has remained politically
almost uncontested. The most invasive attempt of political power to contain
it took place in 2012 when the retiring president of the country, Klaus, repeatedly
refused to appoint new constitutional judges after the upper chamber of
the parliament rejected his candidates.6 5
Although the Constitutional Court
has never shied away from vociferous statements and normative evaluations,
6 1
T H E M I S <n 29); L Pech, P Wachowicc, D Mazur, '1825 Days Later: The End o f the Rule of Law
in Poland (Part I)' (2021) Verfassnngsbhg, 13 January 2021, available at https://verfassungsblog.de/
182.S-days-later-the-end-of-tfic-mie-of-law-in-poland-part-i/.
6 2
H e l m k e (n 2).
6 3
T h e most famous being the reaction of rhe US Supreme Court to F D Roosevelt's 1937 courtpacking
plan. See G A Caldeira, 'Public Opinon and the US Supreme Court: FDR's Court-Packing
Plan' (1987) SI American Political Science Review 1139.
M
N o t e that this practice occurred also outside of Central Europe; see, for example, the famous
remark of Shapiro, who called British courts a marvellously impenetrable lump: .M Shapiro, Courts:
A Comparative and Political Analysis (Chicago, University of Chicago Press 2013); Taylor (n 17)
and J Staton, Judicial Power and Strategic Communication in Mexico (Cambridge, Cambridge
University Press, 2010),
6 5
D Kosaf and L Vyhnanek, T h e Constitutional Court of Czechia' (2019) The Max Planck
Handbooks in European Public Law, vol 111; Constitutional Adjudication; Institutions.
a careful comparison of its case law with that of other European constitutional
courts also suggests that it only rarely significantly constrained the legislator in
its choices of how to amend disputed legal norms. In other words, it mostly left
the discretion to create new rules to parliament.6 6
It would be worth exploring
whether this version of the self-contained approach helped the Constitutional
Court to dodge the populist rhetoric of majoritarian difficulty.
3. Off-bench Pressure
Judicial resistance can also be used by judges in their individual capacity, without
relying on their formal decision-making competence.
Organised judicial action^ most often carried out through judicial unions, can
often be an effective voice in advocating judicial independence. Judicial unions
typically enjoy some level of official competence. They also have an access to
important political networks, which allow them to issue statements and communicate
more easily with the media or political opposition.6 7
Examples of judicial
unions actively protecting judicial independence have been seen in all Central
European countries. The most striking example, however, comes from Poland.
In January 2020, in a March of Thousand Robes, judges took to the streets,
supported by colleagues who travelled to Warsaw from France, Norway and the
Czech Republic, to protest against the PiS's policies dismantling Polish judicial
independence.68
Similarly, when the CJEU held a hearing in one of the latest
ongoing cases against Poland, that hearing was attended by Dutch, Belgian and
Turkish judges as a gesture of support for their Polish colleagues.69
Judicial activism can also take individual form. Judges can act on their own,
depending on the practices in a given country, issuing public statements, communicating
with other political actors or even marching in the streets. Public or
political statements are often exerted by court presidents, as they, given their
authority, have better channels for reaching the media and often enjoy a specific
competence to comment officially on new legislation targeting the judiciary. This
was the case with the former Hungarian Supreme Court Chief Justice Andras
Baka, who was removed from office in retaliation for his parliamentary speeches
criticising reforms proposed by Orb An.7 0
Similar professional assertiveness outside the courtroom is of particular
importance in cases where political actors have limited formal avenues for
S 6
K Sipulova, 'The Czech Constitutional Court' in K I'ocza (ed), Constitutional Politics and the
Judiciary (Abingdon, Routlcdge, 2019).
6 7
D Beers, 'A Tale of Two Transitions: Exploring the Origins of Post-Communist Judicial
Culture in Romania and the Czech Republic' (2010) 18 Demokrcitizatsiyalfl.
6 S
C Davics, 'Judges Join Silent Rally to Defend Polish Justice' The Guardian, 12 January 2020,
www.theguardian.com/world/2020/jan/l2/poland-march-judges-t;urope-protestdawyers.
&
} Morijn, 'Commission v Poland: What Happened, What it Means, and What it Will Take'
Verfassungsblog, 18 March 2020, https://verfassungsblog.de/commission-v-poland-what-happencd-
what-it-means-what-it-will-take/.
7 0
Koftaf and Sipulova (n 24); Baka v Hungary {n 45).
166 Katarina Sipulová Under Pressure: Building judicial Resistance to Political Interferences 167
asserting their authority over the judges. Nevertheless, as suggested in the case of
Chief Justice Baka, off-bench pressure rather often leads to a political backlash
especially in regimes backsliding from democracy. The Polish PiS, for example,
reacted to protests organised and held by unions of judges with a specific provision
in the 'muzzle law' requiring judges to disclose their membership of any
association, their functions in the N G O sector and their membership of any
political parties before they became judges.
Similarly, the government retaliated against individual judges. A Janus-faced
symbol of governmental harassment and defiance of Polish judges is the case of
judge Waldemar Zurek (former spokesperson of the previous National Council
of the Judiciary). While still in office at the Council, he was subjected to an
eighteen-month investigation by the Central Anti-Corruption Bureau (on a
fraud charge), received numerous telephone and email threats, and became a
target of public harassment, which included the PiS-controlled press publishing
headlines about his personal life and divorce. Professionally, Zurek was transferred
against his will to a different division at the court as a punishment for
alleged failures to execute his duties promptly. His appeal to the Supreme Court
languished for several months until it was picked up and swiftly dismissed by a
new Extraordinary Control Chamber.7 1
4. Allied Resistance
Finally, allied resistance comprises a set of practices and resistance techniques
which can only be implemented by an alliance of the courts with their peers or
other political or civil actors.
Recent court-curbing attacks in Poland and Hungary prompted large-scale
activity in transnational judicial networks?1
Many of the CJEU preliminary
rulings targeting judicial independence in Poland and Hungary actually arrived
from the courts of other Member States. The Network of Presidents of Supreme
Courts of the European Union played a particularly important role. In 2012,
the Network initiated a questionnaire among its members, inquiring whether
it was possible to use the principle of mutual trust as a vehicle for stopping the
free movement of judgments and exerting pressure on the rebelling Hungarian
government. The infamous Irish preliminary question7 3
was also first discussed
in this forum during die Irish presidency of the Network. The Network also
actively sought the help of Viviane Reding, the European Commissioner for
7 1
E Siedlecka, 'To Shoot D o w n a Judge' Verfassungsblog, 8 June 2020, https://verfassungsblog.de/
to-shoot-down-a-judgc/.
7 1
E Holmoyvik, 'For Norway it's Official: The Rule of Law Is No More in Poland' Vcrfassungsbhg,
29 February 2020, https://verfassungsblog.de/for-norway-its-official-the-rule-oMaw-is-no-more-in-
poland/.
7 5
C J E U , C-216/18 PPU, Calmer, judgment of 25 July 2018.
Justice, Fundamental Rights and Citizenship from 2010 to 2014, adding to the
pressure on the European Commission to act against Hungary.7 4
Similarly, in the aftermath of the controversial Polish 'muzzle law', the
German District Court of Appeal in Karlsruhe refused to extradite a person
sought by the Polish authorities. The District Court reasoned that Polish courts
could no longer be considered independent, as Polish judges could at any point
be subjected to arbitrary disciplinary proceedings and sanctions.7 5
Apart from their international judicial peers, judges can also ally with political
opposition, supranational institutions, NGOs, media or the public. On the
supranational level, the European Commission in particular is an important
ally of domestic judges, having the competence to initiate both infringement
proceedings before the CJEU and (together with the European Parliament) the
sanctioning process under Article 7 T E U . The infringement proceedings allow
the CJEU to review the compatibility of domestic legislation with existing
EU law obligations. The European Commission initiated three infringement
proceedings against Hungary and four against Poland. The latest development,
however, raises many doubts related to the effectiveness of infringement
proceedings. The Polish government seems no longer to bother to comply with
CJEU rulings, adopting instead a very nationalistic rhetoric. It therefore seems
that while the CJEU can give domestic judges new ammunition, it can no longer
on its own exert its dominance over rebelling populist governments.
Another important ally of judges is the media. They can report on court cases
with their own independent agenda or on behalf of other actors. The investigation
into the murder of Ján Kuciak in February 201S stirred up Slovak society
and eventually helped to uncover a convoluted corruption network including the
mafia, entrepreneurs, politicians and very senior judges.
Coincidentally, in that very same year the Constitutional Courr faced a largescale
personnel change, with nine out of thirteen justices coming to the end
of their terms. The government -fearful it would lose the next parliamentary
election - first tried to use the opportunity to pack the court with loyal people
and secure some posts for its own party members. Public pressure and frequent
media coverage, however, prevented it from doing so. In an unprecedented move,
a local N G O organised a thtee-day-long live streaming of candidate interviews
by a selection committee in Kosice's main square.7 6
Independent media also played their role in the alleged attempts by the Czech
president and his advisors to influence apex courts. The decision of former
Chief Justice Baxa and constitutional justice Simicek to publicise the pressure
exerted by a presidential advisor gained high coverage and provoked much public
7 4
Network of Presidents of Supreme Courts of the European Union, Newsletter 26/2014.
7 S
T Wahl, 'Refusal of European Arrest watrants Due to Fair Trial Infringemenrs' {2020) 4
EUCRIM - The European Criminal Law Association's Forum 321.
7 6
M Steuer, 'The First Live-Broadcast Hearings of Candidates for Constitutional Judges in
Slovakia: Five Lessons' Verfassimgsblog, 5 February 2019, hrtps://verfassungsblog.de/the-first-livebroadcast-hearings-of-candidatcs-for-eonstitutional-iudges-in-slovakia
five-lessons/.
168 Katarína Sipulová Under Pressure: Building judicial Resistance to Political Interferences 169
interest, making it very difficult for political actors to continue their activities
without ramifications.7 7
As much as politicians may use public protests to pressurise the courts 7 8
high public confidence may also protect judges against political interference
with their independence. Frontal assaults on courts often trigger antipathy to
executive power.7 9
Public riots therefore increase the costs of political interference
and may force the executive to reconsider its plan.8 0
Nevertheless, the
readiness of the public to riot in the streets depends to a large extent on social
legitimacy, public confidence and trust in courts. This was clearly demonstrated
by the Polish case, where the government benefited from overall low prestige and
public antipathies towards judges for the crucial months in which it managed to
sufficiently weaken the courts. Riots in the streets followed only once the PiS had
interfered with tule-of-law principles in a very obvious way.
IV CONCLUSION: CAN COURTS PREVENT POLITICAL INTERFERENCE?
This chapter has been built on an understanding that courts can prevent, avert
or punish political interference by raising the costs and lowering the benefits of
attacks for the executive. However, examples from Central European countties
have demonstrated that they have done so with different levels of success. The
study of four cases is certainly not enough to aspire to a general theory about
the effectiveness of judicial resistance. It is limited to the experience of posttransitional
democratic regimes partly backsliding from democracy, with at
least some level of judicial independence. It also reports on the European legal
and cultural setting, where supranational commitments play a much stronger
role than in the rest of the world.
Nevertheless, certain patterns appearing in Poland, Hungary, Czechia and
Slovakia force us to think more broadly about the potential link between forms
of political interference and effective retaliation of domestic judges, which
would allow the courts to move from simple incidental reactions to forming
systemic judicial resistance strategies.
We have seen that neither populist nor democratic politicians shy away from
court-curbing practices. However, judicial reactions and their effectiveness differ
with the intensity of interference and aims followed by executives.
The Czech case, involving a democratic regime with fully independent courts,
demonstrated examples of both formal and informal political attacks. These
attacks did not aim to incapacitate the courts, nor did they aim to make the
judiciary dependent. Instead, political actors occasionally tried to influence the
" S u p r a (n34).
'"Taylor (n 17).
^ i b i d .
B 0
G Vanberg, 'Establishing Judicial Independence in West Germany' (2000) 32 Comparative
Politics 333.
result of pattieular high-profile cases (via pressure exerted by President Zeman),
award their loyal allies with prestigious positions at apex courts (via attempts
to remove Chief Justice Brožová) or to slightly shift the ideological stance of the
court (via attempts to influence the composition of the Supreme Administrative
Court). So far, Czech courts have been able to protect their independence, either
quashing problematic proposals in a constitutional review, or using the media to
stir the public debate and push the executive power into a corner. In other words,
judicial reactions followed the character of a political attack: formal legislative
interferences met with an invalidating strategy before the Constitutional Court,
while informal attempts at politicisation were countered by informal individual
activity on the part judges and the media [allied strategy).
A case worthy of particular attention is the Slovak struggle ro remove rhe
former Chief Justice Harabin from his posirion and break down his informal
network. Harabin managed to twist the principle of judicial independence and
use the E C t H R as a shield against accountability. Yet, the government, aware
that reform of the judiciary was conditional on Harabin's removal, backrracked
after the E C t H R ruling, making his invalidation strategy successful. This case
suggests that a democratic regime committed to rule-of-law principles can be
willing to comply with international pressure even if convinced rhat its courtpacking
is for a legitimate end,
The Polish and Hungarian cases, on the contrary, show that invalidation
strategies have little effect in countries which lack sincere commitments to the
principles of judicial independence and the rule of law. Resistance in backsliding
or non-democratic regimes can be costly for judges and lead ro a backlash.
Just think of Orbán reorganising the Supreme Court to strip his Chief Justice
and biggest critic, András Baka, of his function. Or the case of Polish judge
Waldemar Žurek; or scholar "Wojciech Sadurski, who is being prosecuted for
tweets in which he described the PiS as 'an organised criminal group'.8 1
Even supranational courts, including E C t H R and CJEU, can do little against
rebelling governments. The CJEU is limited in addressing questions of judicial
independence by its jurisdiction related to the application of E U law. This lack
of jurisdiction has already resulted in procedural refusals of several preliminary
questions of Polish judges.8 2
The CJEU, however, did hire in a couple of
infringement proceedings, invalidating Hungarian and Polish court-packing
early-retirement laws and ordering the suspension of the new Polish Disciplinary
Chamber.8 3
While blatant disobedience was for decades a topic of only academic
interest among European legal scholars, Kaczynski's attitude shows that times
are changing and populist politicians, especially those who built their popularity
around nationalism and the ditect democracy narrative, do not feel threatened
8 1
J Morijn and B Grabowska-Moroz, 'Supporting Wojciech Sadurski in a Warsaw Courtroom'
Verfassimgsblog, 28 November 2019, https://verfassungsbloii.de/supporting-wojciecli-sadurski-in-a-
warsaw-courtronm/.
8 2
F o r more on this complex problem, see C I E U cases C-558/18 and C-563/18.
8 3
C J E U , case C-79/19.
170 Katarína Šipulová
by possible exclusion from the E U club - all the more so now that the United
Kingdom has voluntarily left the EU.
The E C t H R is technically better equipped to hear and decide cases of judges
whose independence has been violated by executive power. O n the other hand,
the decision-making process in Strasbourg is notoriously slow and lacks enforcement
powers - even more so than the CJEU, which can, to an extent, rely on the
European Commission. The question therefore is whether it can do more than
to hinder partial court-curbing steps and delay the capture of the judiciary.
Despite this gloomy picture, it is important to note that both supranational
courts are not completely toothless. The informal pressure which the E C t H R and
the CJEU can exert on governments by organising hearings and publicly debating
the problems and their repercussions should not be underestimated. More
generally speaking, this suggests that invalidation strategies can be effective even
in regimes that do not abide by the rule of law when paired with allied strategies,
and leverage courts can find help from various judicial and non-judicial
actors. Allied strategies typically have an informal character and function as
an auxiliary measure to formal judicial resistance. A promising example is the
financial pressure successfully applied to Orban in 2012, when the International
Monetary Fund made loans for Hungary conditional on its compliance with
CJEU and European Commission demands, as well as the February 2020 decision
of Norway's Administrative Court to withdraw from cooperation under the
EEA Grants and to stop funding any justice-related issues in Poland.8 4
The examples discussed above therefore suggest that two factors are essential
for the efficiency of judicial resistance. First, timely reaction of the court is
absolutely crucial. Any preventive and averting strategies require vigilant courts
to act before governments can actually take their steps - or at least, before they
completely dismantle the rule of law. Second, alliances are vital for effective judicial
retaliation, as courts cannot execute their own rulings and, if silenced by
court-curbing legislation, need other actors to pressurise the government. Allied
strategies are mostly of informal character and function as auxiliary measures
to more formal invalidation techniques.
Nevertheless, alliances between judges and the media or public depend to a
large extent on the ability of courts to garner sufficient public trust and prestige.
This finding also suggests the importance of preventive strategies that courts
should implement to build their relationship with the public. Although not
omnipotent, public confidence can significantly raise the stakes for politicians
seeking to dismantle principles of judicial independence. It could therefore be
argued that long-term preventive strategies, aimed at increasing public confidence
and public trust, should be considered a part of judicial resistance,
allowing the courts to shift from incidental reactions to curbing political interferences,
to meticulously planned judicial resistance strategies.
" H o l m p y v i k [n 68).
9
Transparency in the 'Fairyland
Duchy of Luxembourg
C A T H E R I N E B A R N A R D *
I. INTRODUCTION
I
T IS A truth universally acknowledged among Brexiters that the Court of
Justice, even if in possession of a good reputation, should have no jurisdiction
over the United Kingdom. As Mark Francois M P put it in his letter to
Michel Barnier on 26 June 2020:
In the spirit of honesty between friends, and for the avoidance of doubt, there can be
no way that the European Court of Justice (ECJ) can be allowed to have a role in UK
national life after the end of this year.
The question, then, is why is it that a court which expounds fundamental
Western values - democracy,1
the rule of law2
and the protection of fundamental
rights3
- should have become such an object of loathing for the Brexiters. I think
thete are three explanations.4
The first concerns control by an external (unelected) body. This feeds into
the broader 'take back control' mantra so powerfully advocated by the Leave
campaign.5
Returning to Francois's letter: '[A]U I and my colleagues in the E R G 6
have ever really wanted is to live in a free country which elects its own government
and makes its own laws and then lives under them in peace.' For them
»1 am grateful to Hugh H u b for his m e a n * assistance in the preparation of this chapter
and Dennis Galligan and Eleanor Sharpston fortheir very helpful comments.
1
See eg Case 294/83 Parti iaologiste "Les Verts" v European I t e i t e m m B E U i & W S f c K S .
2
See eg Case C-619/18 Commission!/Poland (retitcment age of judges) EU:C:2019:531.
'See eg Opinion 1113 EU:C:2014:2454.
"See also www.politico.cu/arTicWbrexit-eq-eiitopean-court-of-justice-9-reasons-why-50me-brits-
bate-europes-highest-court/.
* R K a discussion as to what this might mean, see M Elliott, 'The U K - E U Brexit Agreements and
"Sovereignty": Having One's Cake and Eating It?', https://publiclawioreveryone.com/2020/12/31/
the-ulc-eu-brexit-agreements-and-sovcreignty-having-ones-cake-and-eating-it/.
6
European Research Group, the Leave 'party' within the Conservative Party