Effects of the Rule-of-Law Crisis in the EU: Towards Centralization of the EU System of Judicial Protection
This article examines the shift in the European Union (EU) system of judicial protection under Art. 19(1)(2) of the Treaty on European Union (TEU), as reflected by the European Court of Justice (ECJ) judgments Associação Sindical dos Juízes Portugueses (ASJP) and Minister for Justice and Equality (LM). Prior to the emergence of the rule of law crisis in Poland and Hungary, judicial independence served as one of the many requirements for a court seeking a preliminary ruling under Art. 267 of the Treaty on the Functioning of the European Union (TFEU). In ASJP and LM, the question of independence is seen as essential in determining whether a Member State respects its duty to guarantee effective judicial protection under Art. 19(1)(2) TEU, which gives expression to the rule of law under Art. 2 TEU. With those, the ECJ intervenes into the rule of law crisis, as its role under Art. 7 TEU is limited. I argue that the Court’s reasoning in ASJP places the entire national court organization under the scope of EU law, even in cases without a material link to EU law. I further claim that the expansive reading of Art. 19(1)(2) TEU moves the horizontal, decentralized system of judicial protection under EU law towards a more vertical, centralized relationship between the EU and national courts. The duty of the Member States to guarantee that their system of court organization meets the requirements of Art. 19(1)(2) TEU strengthens the idea that national law exists not parallel to but within the confines of EU law. However, the external boundaries of this Treaty provision remain unclear.