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)

Common Market Law Review 55, 2018, p. 1827.

32 Pages Posted: 23 Oct 2020

See all articles by Laurent Pech

Laurent Pech

Middlesex University - School of Law

Sébastien Platon

University of Bordeaux - Faculty of Law

Date Written: November 22, 2018

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

Suggested Citation

Pech, Laurent and Platon, Sébastien, 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) (November 22, 2018). Common Market Law Review 55, 2018, p. 1827., Available at SSRN: https://ssrn.com/abstract=3686481

Laurent Pech

Middlesex University - School of Law ( email )

The Burroughs
WG 11
London, NW4 4BT
United Kingdom

Sébastien Platon (Contact Author)

University of Bordeaux - Faculty of Law ( email )

351 Cours de la Libération
Talence, 33400
France

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
273
Abstract Views
841
rank
155,376
PlumX Metrics