The ECJ’s Independence Test as an Incomplete Tool to Assess the Lawfulness of Domestic Courts Filipek, Paweł Author aut Text xx# 2020 Verfassungsblog 2020-01-23 eng

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In A.K. and others, the European Court of Justice established a detailed method for assessing the independence (or lack thereof) of courts. The judicial independence test laid down by the ECJ, however, may not be entirely fit for the purpose of assessing the lawfulness of courts and judges which are established and appointed on the basis of flawed procedures by bodies arguably violating basic judicial independence requirements as established in EU law. The ECJ appears to limit the required verification under EU law to the issue of independence only. Instead, the reviewing body should, first, check whether the challenged court (judge) is “established by law” and only then, if necessary, follow up on the examination of its independence. Today the Polish Supreme Court has the opportunity to step up and give full effect to that criterion. CC BY-NC-ND 4.0 Filipek, Paweł funded by the government CJEU ECtHR judicial independence 342 https://staging.verfassungsblog.de/only-a-court-established-by-law-can-be-an-independent-court/ 2366-7044 Max Steinbeis Verfassungsblog gGmbH 10.17176/20200123-181754-0 200123 10.17176/20200123-181754-0 Converted from MARCXML to MODS version 3.7 using MARC21slim2MODS3-7.xsl (Revision 1.140 20200717)