Non-Regression: Opening the Door to Solving the ‘Copenhagen Dilemma’? All the Eyes on Case C-896/19 Repubblika v Il-Prim Ministru

Abstract

The Repubblika judgment of the Court of Justice introduced the new principle of ‘non-regression’ into the system of EU law. This principle is bound to play an important part in shaping the future of the Union. The Court was asked to assess whether the Maltese system for the appointment of judges was in conformity with the principle of judicial independence, as enshrined in Article 19(1) TEU and Article 47 of the Charter. Whereas the Court confirmed and developed its recent case law on the appointment of judges, we argue that the judgment will be remembered mostly for the new principle, which was not even indispensable for solving the case. In a novel approach, the Grand Chamber read Articles 49 TEU and 2 TEU as obliging the Member States to ensure the antional non-regression in the field of EU values. According to the Court, the Union is composed of states that have freely and voluntarily acceded to the Union, which requires them to ensure that any regression of the protection of the founding values is prevented. The new principle may broaden the reach of EU rule of law obligations at the national level beyond the vital aspects of judicial independence activated via Article 19(1) TEU in Portuguese Judges and provide a seminal new approach to tackling the so-called ‘Copenhagen dilemma’: the Union’s inability to enforce the founding values after the accession. ‘Non-regression’ is thus a sign of massive rethinking of the potential limits of EU competence. As such, the Repubblika judgment goes to the heart of the protection of EU values and marks a fundamental leap forward in this regard.

Keywords: Repubblika, Rule of Law, CJEU, non-regression, judicial independence, conferral, Copenhagen dilemma, Malta, Hungary, Poland, Romania