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

• Author: Niels Kirst
• Position: B.A. Universität Heidelberg, M1 Université Toulouse, L.L.M Université Paris (Panthéon-Assas), Scholar of Dublin City University
• Pages: 108-128

© 2020 Niels Kirst and Dublin University Law Society

THE PERSPECTIVE FROM LUXEMBOURG: HOW

DOES THE EUROPEAN COURT OF JUSTICE RESPOND TO

THE RULE OF LAW CRISIS WITHIN THE MEMBER

STATES?

NIELS KIRST*

Introduction

The rule of law crisis in the European Union (hereinafter, “the EU”) is in

full swing.

1

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.

2

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;

3

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.

4

* 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.

1

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.

2

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.

3

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.’

4

In the LM decision, the CJEU found that in case of a European Arrest Warrant, Member

States’ courts 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

109

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.

5

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

situations.

6

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.

7

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.

5

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.’

6

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.

7

Jean-Claude Piris, The Constitution for Europe: A Legal Analysis (Cambridge University

Press 2006).