Defending the Rule of Law or Reality Based Self-defense? A New Polish Chapter in the Story of Judicial Cooperation in the EU

Table of Contents: I. Introduction. – II. Theoretical framework: why national judges participate in judicial dialogue with the CJEU. – III. Judiciary reforms in Poland 2017-2018: a brief overview. – IV. Preliminary questions as reaction of Polish courts to the judiciary reforms. – V. Defending the rule of law or reality based self-defense? – VI. Conclusions.

Abstract: In the course of the last two years, the Polish courts frequently resorted to the procedure of preliminary ruling requesting the Court of Justice to qualify the Polish judiciary reforms introduced by the PIS-regime in the light of the principle of judicial independence, the rule of law and effective judicial protection. Against this backdrop, one could suggest that the issue regarding the use of the preliminary ruling mechanism by national courts and the reasons that incentivise the judges to engage in dialogue with the Court of Justice have gained a novel dimension. It is the aim of this Article to discuss the relevant preliminary questions referred by the Polish courts and place them in the context of various theoretical streams that aim at explaining the reasons and motivation behind national courts’ participation in judicial dialogue with the Luxembourg Court.

Keywords: Polish courts – constitutional crisis – judiciary reforms – preliminary ruling procedure – judicial dialogue – rule of law.

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European Papers, Vol. 5, 2020, No 2, pp. 851-869
ISSN 2499-8249 - doi: 10.15166/2499-8249/417

* Assistant Professor of EU Law, Department of International and European Law, School of Law, Utrecht University, u.jaremba@uu.nl.