Judicial Independence Under Threat: The Court of Justice to the Rescue

Abstract

The ruling in Associação Sindical dos Juízes Portugueses, often informally referred to as “the Portuguese case”, may be viewed as the Court’s first significant albeit indirect answer to the worrying and ongoing process of ‘rule of law backsliding’ first witnessed in Hungary and now under way in Poland. Indeed, this judgment essentially establishes a general obligation for Member States to guarantee and respect the independence of their national courts and tribunals. What is particularly noteworthy is that the Court has done this solely based on Article 19(1) TEU read in light of Articles 2 and 4(3) TEU.

For those who take Article 2 TEU seriously, Associação Sindical dos Juízes Portugueses offers a silver lining. The Court’s operationalisation of Article 19(1) TEU, while compelling and welcome, is not however bullet-proof. By making inter alia the specific targeting of judges part of its test to decide when one may directly raise a violation of the EU principle of judicial independence via Article 19(1) TEU, the Court leaves however open one possible option for autocratic governments to annihilate judicial independence without activating Article 19(1): the option to act against all checks and balances simultaneously, for instance, by cutting their budgets all at once so that the judiciary is not singled out. The explicit and powerful recognition of the national judiciary as the institution that guarantees the enforcement EU law in all but a few atypical cases, and so that its general health and independence must be a matter of EU concern and not impossible to challenge directly on the basis of EU law, is however to be praised.

Keywords: Rule of Law, Judicial Independence, European Union