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The application of such a rule would undermine the principle of the primacy of EU law and the effectiveness of the preliminary-ruling mechanism

The Court of Justice is called upon to rule on the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction in particular with the principle of the primacy of EU law, in a context in which an ordinary court of a Member State has no jurisdiction, under national law, to examine the conformity with EU law of national legislation that has been held to be constitutional by the constitutional court of that Member State, and the national judges adjudicating are exposed to disciplinary proceedings and penalties if they decide to carry out such an examination.

In the present case, RS was convicted on foot of criminal proceedings in Romania. His wife then lodged a complaint concerning, inter alia, several judges in respect of offences allegedly committed during those criminal proceedings. Subsequently, RS brought an action before the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) seeking to challenge the excessive duration of the criminal proceedings instituted in response to that complaint.

In order to rule on that action, the Court of Appeal, Craiova, considers that it must assess the compatibility with EU law 1 of the national legislation establishing a specialised section of the Public Prosecutor’s Office responsible for investigations of offences committed within the judicial system, such as that commenced in the present case. However, in the light of the judgment of the Curtea Constituțională (Constitutional Court, Romania), 2 delivered after the Court’s judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others, 3 the Court of Appeal, Craiova, would not have jurisdiction, under national law, to carry out such an examination of compatibility. By its judgment, the Romanian Constitutional Court rejected as unfounded the plea of unconstitutionality raised in respect of several provisions of the abovementioned legislation, while emphasising that, when that court declares national legislation consistent with the provision of the Constitution that requires compliance with the principle of the primacy of EU law, 4 an ordinary court has no jurisdiction to examine the conformity of that national legislation with EU law.

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However, since that method has not been published in the Official Journal of the European Union, it is not binding on the public generally, for example on associations for the protection of consumers’ health

In July and August 2018, the Stichting Rookpreventie Jeugd (Youth Smoking Prevention Foundation, Netherlands) and 14 other entities (‘the applicants’) made a request for an order to the Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer Product Safety Authority). They requested that authority, first, to ensure that filter cigarettes offered for sale to consumers in the Netherlands comply, when used as intended, with the maximum emission levels for tar, nicotine and carbon monoxide prescribed by Directive 2014/40 1 and, second, to order manufacturers, importers and distributors of tobacco products to withdraw from the market filter cigarettes allegedly not complying with those emission levels.

The applicants challenged the decision rejecting that request by bringing an administrative objection before the State Secretary. After that objection was rejected, the applicants brought an action before the Rechtbank Rotterdam (District Court, Rotterdam, Netherlands). They submitted that Article 4(1) of Directive 2014/40 2 does not require recourse to a particular method of measuring emission levels and that it is clear, inter alia, from several studies that another measurement method (the ‘Canadian Intense’ method) should be applied in order to determine the precise emission levels for filter cigarettes used as intended.

The District Court, Rotterdam, made a reference to the Court of Justice for a preliminary ruling concerning, inter alia, the validity of Article 4(1) of Directive 2014/40 having regard to the principle of transparency, 3 to a number of provisions of EU law 4 and to the World Health Organisation Framework Convention on Tobacco Control. 5

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Two European arrest warrants (‘EAWs’) 1 were issued in April 2021 by Polish courts against two Polish nationals for the purposes, respectively, of executing a custodial sentence and of conducting a criminal prosecution. Since the persons concerned are in the Netherlands and did not consent to their surrender, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) received requests to execute those EAWs.

That court has doubts concerning its obligation to uphold those requests. In that respect, it notes that since 2017 there have been in Poland systemic or generalised deficiencies affecting the right to a fair trial, 2 and in particular the right to a tribunal previously established by law, resulting, inter alia, from the fact that Polish judges are appointed on application of the Krajowa Rada Sądownictwa (the Polish National Council of the Judiciary; ‘the KRS’). According to the resolution adopted in 2020 by the Sąd Najwyższy (Supreme Court, Poland), the KRS, since the entry into force of a law on judicial reform on 17 January 2018, is no longer an independent body. 3 In so far as the judges appointed on application of the KRS may have participated in the criminal proceedings that led to the conviction of one of the persons concerned or may be called upon to hear the criminal case of the other person concerned, the referring court considers that there is a real risk that those persons, if surrendered, would suffer a breach of their right to a tribunal previously established by law.

In those circumstances, that court asks the Court of Justice whether the two-step examination, 4 enshrined by the Court in the context of a surrender on the basis of the EAWs, under the guarantees of independence and impartiality inherent in the fundamental right to a fair trial, is applicable where the guarantee, also inherent in that fundamental right, of a tribunal previously established by law is at issue.

The Court, sitting as the Grand Chamber and ruling under the urgent preliminary ruling procedure, answers in the affirmative and specifies the detailed rules for applying that examination.

"Wenn du etwas beobachtest, das nicht richtig, nicht fair oder nicht gerecht ist, musst du dich äußern. Du musst etwas sagen, und du musst etwas tun." (John Lewis, Bürgerrechtsaktivist)

Das Team der Bürgerbeauftragten des Landes Baden-Württemberg trauert um Hans-Ulrich (Uli) Sckerl. Er war der geistige Vater und maßgebender politischer Wegbereiter für die Einrichtung einer Ombudsstelle als unabhängige Instanz und der Wegbegleiter des ersten Bürgerbeauftragten des Landes, Herrn Volker Schindler und dessen Nachfolgerin Bea Böhlen.

Eines seiner wichtigsten Anliegen war, Allen eine Stimme zu geben. Dies war ihm, dem Verfechter einer wehrhaften Demokratie, auch die Maxime seines Handelns.

Wir sind Uli Sckerl sehr dankbar und werden ihm ein ehrendes Andenken bewahren und sein Wirken in unseren Herzen tragen.

Unser tiefes Mitgefühl gilt seiner Familie, Freundinnen und Freunden, seinen politischen Weggefährt*innen und seinen politischen Wegbegleiter*innen.

Das Team der Bürgerbeauftragten