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On 13 July 2026, the Hungarian Parliament enacted the 17^th Amendment to the Hungarian Fundamental Law on behalf of the government. According to the explanatory memorandum, the Amendment’s primary objective is to restore the rule of law, and the measures it contains are transitional. In line with the Respect & Freedom (TISZA) Party’s election manifesto (Article 7(2)), the Amendment ends the current President of the Republic’s, Tamás Sulyok’s, term of office. This is undoubtedly an extraordinary measure. Is this a kind of “militant rule-of-law” provision, justified in this extraordinary circumstances – to paraphrase András Sajó – or is it a transgression of the rule of law that cannot be tolerated even during the restoration of the rule of law? Given the President’s apparent partiality and his failure to respond consistently to earlier illiberal constitutional developments, his credibility as the holder of an institution expected to stand above partisan politics has been seriously undermined. Against this background, I consider the exceptional and temporary constitutional change introduced by the 17th Amendment to be justified as part of the broader effort to lay the foundations of a renewed constitutional order and to restore Hungary’s commitment to the common values within the EU.

Venice Commission and Constitutional Court

In June 2026, before the 17^th Amendment was even presented as a draft, Tamás Sulyok – the seventh president since the 1989-90 Hungarian regime change – already preventively resorted to desperate measures. He called on the Hungarian Constitutional Court and the Venice Commission of the Council of Europe for help.

The President of the Republic took the unprecedented step of requesting an abstract interpretation of the Fundamental Law from the Constitutional Court (case no. X/01670/2026). This was the first time since the Fundamental Law came into force on 1 January 2012 that any President of the Republic had initiated such proceedings. Although framed as a technical question concerning the scope of Parliament’s constitution-amending power, the petition sought guidance on whether constitutional amendments could be used to terminate the terms of office of public officials.

For more than three decades now – specifically since Decision 31/1990 of the Constitutional Court – the Court itself has stated that it provides abstract constitutional interpretation only in the case of a concrete, already existing constitutional problem. Not in response to future, vague threats or out of pre-emptive fear of possible bad decisions, but only when a conflict actually arises.

Since no such amendment was then before Parliament, the request was widely regarded as premature and raised concerns that the Court was being invited to expand its constitutional review powers into the substantive review of constitutional amendments. Ultimately, the case never reached a decision on the merits since the substantive legal issue was resolved through procedural means. On 19 June 2026, seven members of the Constitutional Court had requested to recuse themselves from the case on the grounds of a conflict of interest, prompting the Court’s president to remove the subject matter from the agenda.

Additionally, Tamás Sulyok asked the Venice Commission whether removing him from office is compatible with rule-of-law standards, separation of powers, legal certainty, legitimate expectations, and the President’s freedom of expression. In his letter to Venice Commission, he claimed that Hungary’s ruling majority is trying to remove an indirectly elected, politically neutral head of state by constitutional amendment, not by the ordinary impeachment rules that require a proven intentional breach of the Fundamental Law. In his account, this is an attempt to turn the presidency into an office that can be dismissed for political disagreement, including criticism or silence on public affairs. He argued that the government’s openly stated aim is to replace him because he may use his constitutional veto and ex ante review powers, which would chill the President’s independence and weaken checks and balances. At the invitation of the Hungarian Prime Minister, Péter Magyar, a delegation of the Venice Commission visited Hungary on 2 July 2026. The delegation held meetings with the President of the Republic, the Prime Minister, the Minister of Foreign Affairs, the Minister of Justice, and the President of Parliament.

Prior to the visit, the Commission also held consultations with representatives of the Hungarian constitutional law community. The Commission’s experts will consider the case at their next regular meeting in October 2026.

Constitutional Setting

After the 12 April 2026 elections, Hungary entered a phase of constitutional overhaul under a new two-thirds parliamentary majority, with the Tisza party forming the government and announcing broader institutional reform, including a new constitution. In that environment, the President’s complaint is that the same supermajority is using its constituent power in an ad hominem way: a non-normative amendment would end his term immediately, bypass the Constitutional Court, and apply retroactively to the incumbent.

Constitutional experts frame this moment as one of constitutional reconstruction rather than routine alternation in power. Von Bogdandy and Spieker stress the long transition toward European constitutionalism; Halmai describes Hungary as a post “mafia-state” system at a constitutional turning point; Scheppele argues that European law may function as an interim constitutional constraint; and Sonnevend focuses on the limits of rebuilding constitutional democracy without reproducing old pathologies. Nußberger adds that Venice Commission advice is particularly valuable in precisely such a contested transition, while Bodnar and Kosař emphasize restoring institutional trust and reforming the bench without imitation. Drinóczi’s point about removing veto players helps explain why the presidency is central here: the dispute is about whether constitutional reform can eliminate a constitutional check by targeting the officeholder. Mészáros clearly explained why the standard impeachment procedure under Hungarian constitutional law is a dead end, and how to find a way out of it.

The Story of the 17^th Amendment to the Fundamental Law

The draft of the 17^th amendment to the Fundamental Law has been posted on the kormany.hu website for public discussion in the afternoon of 22 June 2026. Prime Minister Péter Magyar presented the amendment in an expressive speech in the National Assembly, lasting nearly an hour, and as is customary in a parliamentary democracy (under restoration), this was followed by a heated parliamentary debate. The press, whose duty it is to provide reliable, accurate and timely information, was reporting on this thoroughly. In terms of the deeper constitutional implications, and regarding the institution of the President, the draft was consistent with the expectations of the public. In other words, it served to restore the democratic Rechtsstaat. Why? According to its preamble, the amendment to the Fundamental Law is purpose-bound (“for the purpose of restoring the democratic rule of law”), limited in scope and duration (“it establishes the framework for the lawful and uninterrupted functioning of the state”, specifically “until the new Constitution enters into force”).

The general explanation of the draft invokes the principle of popular sovereignty (“based on the exceptional mandate received from the electorate”) in aiming to create “the preconditions for the restoration of constitutional democracy”.

Regarding the office of President of the Republic, the amendment is both purpose-specific and limited in scope and duration. Technically, the newly inserted Section 34 into the “Final and Miscellaneous Provisions” of the Fundamental Law reads as follows:

“On the day following the entry into force of the seventeenth amendment to the Fundamental Law, the term of office of President of the Republic shall terminate. Following this, the National Assembly shall elect a President of the Republic in accordance with [the constitutional provisions in force], for a term lasting until the new Constitution enters into force but not exceeding five years.”

The amendment in this regard arguably does not constitute ad hominem legislation. The citizen currently holding the office of head of state is not barred from being nominated for the office of President of the Republic after the amendment enters into force. Moreover, the amendment does not alter the current rules governing the indirect (i.e., parliamentary) election of the head of state. (See Article 7 of the draft and the detailed explanatory memorandum attached thereto). Finally, genuine ad hominem (tailor-made) legislation always gives the appearance of being a general regulation, and it is only through experience in its application that it becomes clear who the target was. In this case, the target is clear, and the purpose of the removal is also unambiguous.

Personalised Provisions

Of course, it is a plausible argument that this is still a rather personalized, unique provision. At the same time, there are precedents for this in the text of the current Hungarian Fundamental Law. The Fundamental Law even nowadays still contains such personalized provisions, which were established by the 4^th Amendment to the Fundamental Law on March 25, 2013, with retroactive effect to January 1, 2012. These are:

• Fundamental Law, Final and Miscellaneous Provisions 14, (2): The terms of office of the President of the Supreme Court, the President of the National Council of Justice and its members shall terminate upon the entry into force of the Fundamental Law. See to this ECtHR Baka v Hungary – in this case the Court established that it was unlawful to remove the president of the Supreme Court before the end of his term of office because he had expressed critical views regarding the actions of the Hungarian government at the time concerning the judicial system and the legal status of judges.
• Fundamental Law, Final and Miscellaneous Provisions 17: The term of office of the incumbent Data Protection Commissioner shall terminate upon the entry into force of the Fundamental Law. See to this CJEU Case C‑288/12, European Commission v Hungary, which rules that EU law requires Member States to guarantee the institutional independence of data protection authorities, which includes respecting and allowing the data protection supervisor to complete their legally fixed term of office without premature dismissal for political or structural reasons.

The present situation in Hungary contrasts with the past, when the above provisions undermined the rule of law. During a transition, personnel changes could be legitimate as part of a process of democratic “front-sliding”. The head of state, who is still in office, clearly symbolises the former Orbán regime.

The Hungarian Head of State’s Attitude: Inaction and Action

It is noteworthy that the President of the Republic, who remained silent on the 15^th Amendment to the Fundamental Law, attempted to stir up a constitutional crisis before the draft of 17^th Amendment was even published.

The 15^th Amendment to the FL (14 April 2025) allowed for the “suspension” of Hungarian citizenship for dual citizens based on a ministerial decision, with no legal remedy. It further stipulated that “a person is either male or female,” which, according to the preamble to the amendment, was intended to enable the state to “prevent efforts that suggest the possibility of changing one’s sex at birth.” It was quite clearly a transphobic regulation. Furthermore, the amendment placed the best interests of the child above all other fundamental rights, except the right to life. Through this provision, the governing majority sought to establish a constitutional basis for a legislative amendment that would ban Budapest Pride and similar events. The text of the 15^th Amendment to the Fundamental Law also stated that, in Hungary, “the production, use, distribution and promotion of narcotics are prohibited”. The bill submitted in connection with this amendment tightened the Criminal Code and procedural rules in numerous respects, serving as yet another example of ill-conceived, populist criminal policy.

In spring 2025, the President of the Republic signed and promulgated all these new constitutional rules without comment. Against this background, the President’s attempt to prevent the enactment of the 17th Amendment can hardly be understood as a principled defence of the rule of law or the independence of constitutional institutions. Having remained silent in the face of earlier constitutional changes that were subsequently found by international courts to be incompatible with rule-of-law standards, his intervention appears instead to be directed primarily at protecting his own term of office. This inconsistency calls into question the impartiality and institutional character of his intervention.

Conclusions

Effectively, by enacting the 17th Amendment on 13 July 2026, the parliamentary majority held the head of state accountable. Up to now, the President of the Republic has never spoken out publicly, even when it was clear that the previous legislator has obviously violated the fundamental values of the EU and liberal character of the Hungarian Fundamental Law. The new Hungarian constitutional majority, however, is laying the foundations for a new republic, committed to EU fundamental values. Accordingly, the swift removal of the head of state is, exceptionally, acceptable.

The post The New Constitutional Amendment and the Removal of the President appeared first on Verfassungsblog.

In May 2026, Scottish voters once again returned the Scottish National Party (SNP) to power for the fifth successive Scottish Parliamentary election. The pro-independence SNP will bring up twenty years in government at Edinburgh next year, a remarkable achievement both for an administration that is so long in the tooth, and for one that has been rocked by major scandals in recent times. With the SNP promising another independence referendum but not having a legal mechanism to provide one, and polling on that issue still sat at about 50-50, the Scottish political Groundhog Day looks set to continue.

Beneath the stasis, however, there is movement in Scottish constitutional politics. This short post argues that there is more taking place than meets the eye, and that potentially significant changes are emerging under the twin continuities of SNP success and the never-ending independence question.

Changes in the Constitutional Parameters

The first changes are in the parameters of constitutional politics since the last Scottish election in 2021. The Scottish Parliament, established in 1999, is a devolved parliament within the broader British Constitution, which is premised on British parliamentary sovereignty. Since the establishment of the Scottish Parliament, there has been ambiguity over whether legislation to hold an independence referendum would be within its legal competences. The 2014 referendum took place through a Section 30 Order, following success of the SNP in the 2011 Scottish election and the agreement of the British Government. This effectively granted the Scottish Parliament the authority to legislate for the referendum temporarily, leaving the question of the Scottish Parliament’s own powers open. Due to the 2022 UK Supreme Court ruling, it has now been clarified that holding an independence referendum is outwith the competences of the Scottish Parliament, and that any Scottish Parliamentary legislation to that effect without a Section 30 Order would be void. This was reflected in the 2026 manifesto of the SNP, who stated that a vote for the SNP is a vote for a referendum “on the 2011 precedent’’. The legal reality that the Scottish Parliament cannot unilaterally hold a vote and, in order for there to be any referendum, the British Government must be persuaded.

Other constitutional movements since the last election have exposed the fragility of devolution to Scotland. This has included UKSC rulings that took a broad reading on the limits of the Scottish Parliament’s legislative competences in late 2021, and the ongoing effects of British Parliamentary legislation which cuts across devolved powers, producing a chilling effect on the ability of the Scottish Parliament to make different policy choices from London in practice. Around this, the Sewel Convention, which is meant to regulate the British Parliament’s supremacy and afford protection to areas of devolved power, broke down during and beyond the Brexit years. Paradoxically, the fragility of devolution sits alongside the fact that the Scottish Parliament’s powers are now broader than ever, as new powers have come online since 2021. However, the foundation of the settlement has been exposed as weak and unentrenched, and must sit alongside the ultimate, unrestricted sovereignty of the British Parliament. The SNP manifesto, unsurprisingly, reflected this by repeatedly highlighting the “strictures” of devolution.

Next, since the last election, there is a new British Government in power in London. The post-Brexit period was characterised by the deeply fractious relationship between Edinburgh and London, leading to many of the disputes that have resettled the constitution back towards British parliamentary sovereignty. The Labour Party replaced the Conservatives following 2024 UK General Election on a promise to “reset” relations with devolved governments and to strengthen the Sewel Convention. In the years since, however, the picture on this has been somewhat mixed, and thaw in relations between the governments has not been particularly noticeable. Keir Starmer was also revealed to have said that he did not want to be ‘‘overly deferential” to devolved governments in a press leak earlier this year. Strikingly, the 2026 Scottish Labour election materials did not feature Starmer at all, and made little attempt to capitalise on their position as the party in power in London.

Pushed to the Extreme Options

A second point of transition at this election was the discourse on Scotland’s constitutional position. The raison d’etre of the SNP is Scottish independence and that was unchanged, but discussion towards the future of Scottish devolution within the UK shifted. Going into the election, the rise of the anti-immigration Reform party was the headline issues. Reform are unionist and hostile towards devolution, with their manifesto promising to trim the number of Members of the Scottish Parliament and to review the parliament’s powers every five years. This marks the return of anti-devolution sentiment to the Scottish political landscape. The Conservatives had opposed devolution prior to 1999, but began switching course as the Scottish Parliament was founded. Reform’s 17 seats in Holyrood, therefore, means that the small but persistent minority of Scots who are anti-devolution are firmly back in the conversation.

Beyond the return of devolution-scepticism, the issue of further devolution to Scotland receded at this election. For example, Scottish Labour promised borrowing powers and employment rights in 2021. In 2026, this is not mentioned, and their manifesto was instead about making existing powers “work’’ as opposed to seeking any new powers. This is actually the position that the Conservates have transition to since 1999, and, as the pro-federal Scottish Liberal Democrats also made no commitments to further devolution, meant that new powers are now entirely off the agenda from the mainstream unionist parties. This focus on domestic issues over constitutional ones was likely an attempt to capitalise on the SNP Government’s various scandals over recent times. Only promoting the status quo is still striking, however, and means that the only proposals for changes to the Scottish Parliament’s powers came from the parties at the extreme positions: reduced devolution, or full independence. Compounding this, the only parties to make a tangible reference to devolving more powers within the UK were the SNP, who called for the still un-devolved area of employment law to come under Edinburgh’s control, and the Scottish Green Party, who are also pro-independence.

Local Devolution and a Regional Breakthrough

The third major shift in this election was the new focus on Scotland’s internal power structures. While the mainstream unionist parties were silent on further devolution to Scotland, there was a notable attention paid to devolution within Scotland in their manifestos. Scottish Labour, for example, promised to “push power out of Holyrood”. This is actually a view shared with Reform, the Conservatives, the Liberal Democrats and the Scottish Greens, who similarly railed against the centralisation of powers in Edinburgh. The SNP were most muted on the issue, making more general commitments towards community empowerment rather than the clear devolution of power within Scotland.

One result from the election stands out and suggests that the appetite for decentralisation does exist. Hannah Mary Goodlad convincingly won the Shetland constituency to become the islands’ first SNP representative. While she ran an outstanding local campaign, the result is still striking in the context of Shetland history and identity. The far-north archipelago has been continuously represented by the Liberal Democrats in the Scottish Parliament since 1999 (and since 1950 in the British Parliament). Moreover, Shetland has its own autonomy question and a traditional discomfort with Scottish identity. Goodlad is herself the daughter of the former candidate of the Orkney and Shetland Movement, who ran in 1987 UK General Election on a platform of Shetland autonomy.

Crucially, Goodlad published her own local manifesto, which included commitments for increased local power along with proposals such as recognising the local dialect, Shaetlan, as an official language at the next census, and noted that “Shetland is different to the rest of Scotland, geographically, culturally, heritage, everything”. Here, the SNP was able to break new ground in the most hostile of areas, but had to be accommodating of diverse identity and subsidiarity against their centralising instinct. In addition, Goodlad’s local manifesto sidestepped the issue of independence entirely.

Conclusion

In the immediate aftermath of the election, the reconvened Scottish Parliament passed a motion to seek a Section 30 Order. On the back of this, returned First Minister John Swinney pledged to meet with Keir Starmer to discuss the issue of a second referendum. In the weeks since, however, a war of words broke out over whether this will actually be discussed at the meeting, with UK Government sources reaffirming their opposition to a second referendum. Former Prime Minister Theresa May’s 2017 response of “now is not the time” seems set to continue as the UK Government’s approach towards the entire issue of Scottish independence.

The argument made in this post is not that 2026 is a transformational period for the Scottish constitution. Rather, the argument is that subtle alterations are taking place, which may have long-term bearings for the conversation on Scotland’s constitutional future. With Starmer on the way out, his successor has placed devolution at the centre of his pitch for power. However, it is a model of devolution that is centred on regions and not nations, downplaying the role of the Scottish Government and Parliament. A second Scottish independence referendum has also been decisively ruled out. How this tangles with a returned SNP administration, and the strands of Scottish constitutional politics identified in this post, remains to be seen.

The post Beyond Constitutional Groundhog Day appeared first on Verfassungsblog.

On 29 June 2026, the European Parliament’s Constitutional Affairs (AFCO) rapporteur Charlie Weimers (ECR) published a draft report, to be presented at a public hearing on July 15, on “The Institutional Framework of the European Union and its Interaction with National Authorities in the Application of Union Law, with Particular Reference to Article 19 TEU”.

At first glance, the document reads as a technical set of déjà-vu recommendations on how the Court of Justice and national courts could better interact through improved transparency. Most of its individual proposals have long been subjects of academic discussion, from how to improve the Court’s procedural transparency (e.g. case-allocation criteria, rapporteur choice, judicial formation) to the formulation of substantive concerns (e.g. greater clarity on interpretative methods, the absence of dissenting opinions, more frequent reliance on Advocates General). Yet behind calls for a “more transparent and objective Court of Justice” lies a long list of direct, including ad personam, sometimes random, critiques of how the EU interprets, organises and exercises its mandate (down to French as the exclusive language for internal deliberation). More consequentially, the report’s political preferences reach beyond the Court’s daily operation into its constitutional role in guaranteeing national judicial independence, making this, set against the current political climate, the Parliament’s most comprehensive attempt in recent years to redefine the constitutional conditions of the Court’s judicial function.

This post argues that, taken together, these proposals would upset the constitutional balance governing judicial independence by compromising the Court’s ability to review and sanction instances of illegally appointed judges or captured courts, while promoting, beneath the vocabulary of transparency and accountability, a specific model of constitutional adjudication, that of a single national constitutional court: Germany’s Bundesverfassungsgericht.

The Court is not without responsibility here: its longstanding resistance to internal transparency reforms, documented elsewhere over the past decade, has furnished the opening this report now exploits. The Court’s failure to institutionalise greater openness in its judicial governance and the more recent embrace of an interpretation style hinting to longer, more argumentative reasoning (most lately e.g. here and here), left it exposed to a broader political project seeking to redefine the constitutional limits of judicial independence within the Union.

What the Report Says (And How)

The European Parliament has traditionally positioned itself as a champion of the Court’s role in upholding the rule of law and safeguarding judicial independence within the Union. It triggered the Article 7(1) TEU procedure against Hungary in 2018, and, as co-defendant alongside the Council, successfully defended the rule-of-law conditionality mechanism in Luxembourg against Hungary and Poland’s annulment actions. It even sued the Commission itself for failing to apply that mechanism against Hungary (later withdrawn once the Commission acted), while its Civil Liberties (LIBE) Committee kept sustained pressure on the Commission through recurring reports and resolutions on judicial independence in Poland and Hungary. The Parliament even endorsed the CJEU’s most ambitious reform – doubling the number of its members at the General Court – as demanded by the Court despite limited evidence justifying it. When measured against that track record, this draft report marks an abrupt reversal of that sympathetic and supportive stance.

The casus belli for the report’s unusual challenge to the Court is provided by its own case law on judicial independence. Built on Article 19 TEU, this jurisprudence has led the Court to declare itself competent to assess the independence of national judges and courts applying and interpreting EU law, thereby subjecting them to “common standards” of independence. While Recital M concedes that this case law “has contributed to the protection of judicial independence and the rule of law in certain Member States”, it immediately notes that “it has at the same time raised important questions concerning the relationship between Union and Member State competences”. This – according to the report – required “national courts to disregard decisions of constitutional courts” and “questioned the ability of certain national judicial bodies to participate in the preliminary ruling procedure and developed the principle of non-regression…” (Recital N). No matter that the Court itself found in its Grand Chamber judgment of 18 December 2025 that Poland’s Constitutional Tribunal no longer meets the requirements of an independent and impartial tribunal established by law, owing to serious irregularities in the appointment of three of its members and its President in 2015 and 2016.

To confine or bar further development of this case law, the report argues that a Court “exercis[ing] functions of such significance” must meet “particularly high standards of transparency, methodological consistency, procedural legitimacy and institutional accountability” (Recital Q), with “precise doctrinal limits and full respect for the constitutional responsibilities of the Member States” (Recital 9).

Behind that seemingly innocuous call for a “more transparent and objective Court” lies a staunch line of attack built around three points. The first targets internal governance, that is how cases are assigned, judges designated, and formations composed. The report treats the absence of “objective, predetermined and transparent rules” for case allocation (Recital U) as an affront to the “lawful judge” guarantee under Article 47 CFR and Article 6 ECHR, and calls for “a review of the concentration of procedural and organisational powers within the office of the President” (para. 14). The latter is framed as due process, but in fact an unprecedented challenge to the presidency’s authority. Yet the alternative to case-by-case attribution is automaticity, which Article 47 nowhere requires, and which would strip the President’s office of its essential prerogative: weighing cases against criteria like a member’s specialisation, and efficiency considerations. Chamber allocation, moreover, is made not by the President alone but collectively, by the weekly Réunion Générale.

The second point shifts attention from judicial governance (how the Court operates) to judicial reasoning (how it reasons). The report criticises “broad teleological reasoning” (Recital V) and the absence of a “clearly articulated hierarchy of interpretative methods” then advances three demands: dissenting and concurring opinions with published voting results (paras 19-20); an end to dispensing with Advocates General’s opinions in sensitive cases (para. 21); and scrutiny of the Court’s “exclusive use of French” which risks “privileging…particular modes of legal reasoning” (Recital Y, para. 22). Taken together, these risk stripping the Court of the interpretive discretion its authority rests on: exposing every step of its reasoning to politicisation would produce not a more legitimate Court but a weaker one. Ultimately, this reveals the true aim pursued by this report: not greater judicial transparency, but a different Court altogether, closer to the one Member State tribunal – the German Federal Constitutional Court – than to any other national court.

The third point is by far the most consequential as it reaches the Court’s relationship with national judicial authorities. The report builds its case by citing a list of national pushbacks, from Denmark’s Ajos, Germany’s PSPP, France’s Cohn-Bendit, to Czechia’s Holubec, to which it adds Poland’s K 3/21 (para. 3). Yet the equivalence does not hold: whatever one thinks of their reasoning, the first four were courts, as they met the requirements of an independent and impartial tribunal established by law; the same could not be said of the body behind K 3/21. As anticipated, the ECtHR had already found the Polish Tribunal’s post-2015 composition irregular in Xero Flor v. Poland, and the Grand Chamber has since ruled the body which issued K 3/21 is no court within the meaning of EU law at all. Against this selective reconstruction, the report proposes a “reciprocal constitutional dialogue mechanism” letting national courts submit observations before rulings on constitutional identity or EU competence (para. 23), subordinating the Court’s independence to the prior acquiescence of the very actors it is meant to constrain.

The Court’s Own Hand In This

None of this exonerates the Court. The first line of criticism carries force because it identifies a genuine, self-inflicted deficiency. As I have shown elsewhere, the Court remains subject to institutional openness like any other EU institution: Article 1 TEU requires decisions be taken “as openly as possible” and Article 15(1) TFEU extends that duty to all institutions. Article 15(3) TFEU shields the Court’s proceedings only from the general right of document access, a narrow exemption, not an escape from the broader obligation. A combined reading of Articles 1 and 15 suggests that the Court’s discretion over, inter alia, case allocation, the designation of reporting judges, the constitution of chambers and the practice of dispensing with Advocates General’s opinions can no longer be treated as “cuisine interne” immune from legal scrutiny. The Court could have operationalised this duty through its own Rules of Procedure, publishing objective allocation criteria, and clarifying the line between administrative and judicial functions. It failed to. Had it acted, as required by the post-Lisbon openness obligations, the grievances behind the first line of attack would largely not have arisen; instead they remained open questions, available for a hostile rapporteur to recast as evidence of an unaccountable judiciary.

What’s at Stake

Even as a non-binding resolution, this report would shape the next revision of the Court’s Statute, normalising the idea that Article 19 TEU enforcement against captured judiciaries is “overreach” rather than a legitimate exercise of the Court’s constitutional role. The consequences are threefold: a weakened Article 19 doctrine affords less protection the next time a government threatens the independence of its own judiciary; a reciprocal dialogue mechanism gives courts whose independence is itself disputed a voice that functions as a chilling effect at best, a de facto veto at worst; and it puts in question the ordinary citizen’s guarantee that an independent Court of Justice remains the court of last resort against national violations of EU-conferred rights.

Conclusion

This draft report confirms what I have long feared. The Court’s historic reluctance to open up its own governance, notwithstanding what the post-Lisbon constitutional arrangement requires of it, has left it exposed to an unprecedented political critique of how it delivers justice within the EU. Any of the grey areas of discretion enjoyed by the Court, and/or by its President – from case allocation to the constitution of judicial formations – ought to have been rendered objective and intelligible to external scrutiny long before the Weimers report weaponised that discretion into a “political liability”.

On 15 July, a report that has so far attracted little public attention will gain institutional visibility at a public hearing whose composition deserves scrutiny in its own right. In a debate concerning the legitimacy of the Court’s constitutional authority, in its relation with national courts, AFCO has assembled a panel representing sharply divergent views on Article 19 TEU and the limits of judicial integration. Such plurality may be valuable, but it also raises questions about how Parliament selects experts who have not merely studied this issue but actively steered it.

Given the stakes, both this report and the process accompanying its adoption warrant closer scrutiny from legal academia, civil society, and public opinion alike. AFCO and JURI members committed to an independent judiciary have until the November committee vote to mobilise a counter-resolution (without the need to amend – but directly replace – the Weimers report under Art. 188 RoP). Civil society, legal academia, and the profession should not await that vote to make their position known.

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