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

RECONNECT Working Paper (Leuven) No. 15, 2021

20 Pages Posted: 8 Jul 2021

See all articles by Mathieu Leloup

Mathieu Leloup

University of Antwerp - Faculty of Law

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Aleksejs Dimitrovs

European Parliament

Date Written: June 28, 2021

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

Suggested Citation

Leloup, Mathieu and Kochenov, Dimitry and Kochenov, Dimitry and Dimitrovs, Aleksejs, Non-Regression: Opening the Door to Solving the ‘Copenhagen Dilemma’? All the Eyes on Case C-896/19 Repubblika v Il-Prim Ministru (June 28, 2021). RECONNECT Working Paper (Leuven) No. 15, 2021, Available at SSRN: https://ssrn.com/abstract=3875749

Mathieu Leloup

University of Antwerp - Faculty of Law ( email )

Prinsstraat 13
Antwerp
Belgium

HOME PAGE: http://https://www.uantwerpen.be/en/staff/mathieu-leloup/

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Aleksejs Dimitrovs

European Parliament ( email )

Bât. Altiero Spinelli
60 rue Wiertz / Wiertzstraat 60
Brussels, B-1047
Belgium

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