Judicial Independence Under threat:The Court of Justice to the Rescue in the ASJP Case (Case C-64/16, Associação Sindical dos Juízes Portugueses, Judgment of the Court of Justice (Grand Chamber) of 27 February 2018, EU:C:2018:117)

Abstract

The ECJ’s ruling in Associação Sindical dos Juízes Portugueses is nothing short of ground-breaking. First, it is arguably the most important judgment since Les Verts as regards the meaning and scope of the principle of the rule of law in the EU legal system. Second, it comes close to being the EU equivalent of the US Supreme Court case of Gitlow as regards the principle of effective judicial protection. The ruling in Associação Sindical dos Juízes Portugueses, known as ASJP, and 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. This comment examines how the “Portuguese case” may prove a potentially decisive shot across the Polish bows, and, more generally, the extent to which and when the EU principle of judicial independence may be directly relied upon to challenge national authorities which are seeking to fundamentally undermine the principle of separation of powers. This case note’s main submission is that the ECJ’s approach, which merely requires the existence of a hypothetical link between relevant national measures targeting courts and EU law in order for applicants to bring a challenge on the sole basis of Article 19(1) TEU, is both innovative and compelling.

Note: “Reprinted from Common Market Law Review 55: 1827–1854, 2018, with permission of Kluwer Law International.”

Keywords: European Union, European Union Law, European Constitutional Law, Rule of Law, Justice, Judicial Independence, Poland, Fundamental Rights

JEL Classification: K1, K10, K19, K4, K40, K49