The Perspective from Luxembourg: How Does the European Court of Justice Respond to the Rule of Law Crisis Within the Member States

AuthorNiels Kirst
PositionB.A. Universität Heidelberg, M1 Université Toulouse, L.L.M Université Paris (Panthéon-Assas), Scholar of Dublin City University
© 2020 Niels Kirst and Dublin University Law Society
The rule of law crisis in the European Union (hereinafter, “the EU”) is in
full swing.
While scholars have pointed to rule of law deficiencies in a
wide array of EU Member States, this Article will focus on the
developments regarding Poland. Recent judgments of the European Court
of Justice (hereinafter, “the CJEU” or “the Court”) have given much food
for thought for commentators.
In some of its latest judgments, the CJEU
has demonstrated a willingness to use the second subparagraph of Article
19 (1) of the Treaty on European Union (hereinafter, “TEU”), in order to
protect the independence of the judiciary in Member States. Article 19 (1)
TEU provides that Member States shall provide effective legal protection;
but these cases have led to questions as to whether judicial independence
can be enforced via the CJEU. The preliminary reference by the High Court
of Ireland in Minister for Justice and Equality v LM (hereinafter, “LM”) has
shown the importance of this question for the European legal order.
* B.A. Universität Heidelberg, M1 Université Toulouse, L.L.M Université Paris (Panthéon-
Assas), Scholar of Dublin City University. The author would like to thank Federico Fabbrini
and Patrick Leisure for their suggestions and comments, and Nora Malchow for insightful
discussions, which brought this article to life.
See Patrick Lavelle, ‘Europe’s Rule of Law Crisis: An Assessment of the EU’s Capacity to
Address Systemic Breaches of Its Foundational Values in Member States’ (2019) 22 TCLR 35.
Respectively the judgments in Case C-619/18 European Commission v Republic of Poland
[2019] OJ C-619/18; Case C-192/18 European Commission v Republic of Poland [2019] OJ C-
192/18; Joined Cases C-585/18, C-624/18 and C-625/18 AK and Others v Sąd Najwyższy
[2019] OJ C-585/18, C-624/18 and OJ C-625/18.
Consolidated Version of the Treaty on European Union [2012] OJ C326/ 001, Article 19.
The relevant second subparagraph provides: ‘Member States shall provide remedies
sufficient to ensure effective legal protection in the fields covered by Union law.’
In the LM decision, the CJEU found that in case of a European Arrest Warrant, Member
Statescourts are entitled to assess the independence of other Member States' courts in
regard to fundamental rights protections of the accused. Case C-216/18 Minister for Justice
and Equality v LM [2018] ECR 586.
2020] The Perspective from Luxembourg
The rule of law crisis has also shed light on the use and applicability
of the EU Charter of Fundamental Rights (hereinafter, “the Charter” or
CFR”). Namely, Article 47 of the Charter provides the right to an effective
remedy and a fair trial and by extension, the independence of the
judiciary in the Member States. However, the application of the Charter is
limited by Article 51 thereof.
Advocate General Tanchev (hereinafter,
“AG Tanchev”), in his opinions regarding the reform of the Polish
judiciary, has argued for a “constitutional passerelle” between the Treaty
and the Charter, based on their common source in Article 6 TEU, to allow
the Court of Justice to use the concepts of the Charter in non-Charter
The idea of a “constitutional passerelle”, which can be
translated into English as ‘overpass’ or ‘gangplank’, stems notably from
the Treaty establishing a constitution for Europe in which the concepts
proposed by the European Council circumvent national parliaments in
certain policy matters.
Section I of this article will set out the principle of effective judicial
protection in EU law, and the relevant Articles of the Treaties and the
Charter. Section II will analyse the first rule of law case at the Court
Commission v Poland (hereinafter, Commission v Poland I”) concerning the
reform of the Polish Supreme Court. Section III will analyse the subsequent
rule of law case concerning the reform of the Polish ordinary courts in
Commission v Poland (hereinafter, Commission v Poland II). Both sections
will take into account the respective Opinions written by AG Tanchev.
Section IV will then assess to what extent the Court followed the Opinions
of the AG and if the Court exercised a decisive shift regarding the scope of
application of the Charter. It will also set out which approach from
Commission v Poland II is preferable. The article will then conclude in
Section V by highlighting the challenges and prospects of the Court in the
impending rule of law cases.
Charter of Fundamental Rights of the European Union [2000] OJ C 364/01, Article 51. The
relevant paragraph provides: ‘The provisions of this Charter are addressed to the
institutions, bodies, offices and agencies of the Union with due regard for the principle of
subsidiarity and to the Member States only when they are implementing Union law.’
TEU, Article 6 (1) establishes that the EU Charter of Fundamental Rights shall have the
same legal value as the Treaties, while Article 6 (3) provides that fundamental rights, as
guaranteed by the European Convention of Human Rights, shall constitute general
principles of European Union law.
Jean-Claude Piris, The Constitution for Europe: A Legal Analysis (Cambridge University
Press 2006).

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