The Perspective from Luxembourg: How Does the European Court of Justice Respond to the Rule of Law Crisis within the Member States?
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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.' 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;'
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. Universitdit Heidelberg, M1 Universite Toulouse, L.L.M Universite Paris (Pantheon-
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 Sqd Najwyzszy
[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 Niels Kirst and Dublin University Law Society](ViewImageLocal?handle=hein.journals/trinclr23&div=9&collection=&method=preview&ext=.png&size=3)
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