Drawing Red Lines and Giving (Some) Bite – the CJEU’s Deficiencies Judgment on the European Rule of Law

The illiberal turn in Europe has many facets. Of particular concern are Member States in which ruling majorities uproot the independence of the judiciary. For reasons well described in the Verfassungsblog, the current focus is on Poland. Since the Polish development is emblematic for a broader trend, more is at stake than the rule of law in that Member State alone (as if that were not enough). If the Polish emblematic development is not resisted, illiberal democracies might start co-defining the European constitutional order, in particular, its rule of law-value in Article 2 TEU. Accordingly, the conventional liberal self-understanding of  Europe could easily erode, with tremendous implications.

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The CJEU Has Spoken Out, But the Show Must Go On

In a nutshell, I argue that despite several conceptual problems in CJEU’s understanding of judicial independence, it showed a healthy dose of judicial statesmanship in Celmer. As neither the preliminary reference procedure nor the fundamental right to the fair trial are good “vehicles” for addressing the Polish structural judicial reforms, there is a limit what the CJEU could do. The foundations of judicial independence are political and thus the real constitutional moment will be the combo of the next Polish parliamentary and presidential elections.

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Drawing Red Lines With No (Significant) Bite – Why an Individual Test Is Not Appropriate in the LM Case

It can be argued that the individual assessment required by the Aranyosi judgment is not the proper test in the LM case due to three reasons. Firstly, regular control reverses the logic of the mutual trust developed by the CJEU. Secondly, there is a substantial difference between fundamental rights and the independence of judiciary. Infringements of the latter require other legal mechanisms of protection. Thirdly, the Polish institutional changes affecting judicial independence may influence all 26 EU acts providing for mutual recognition of judgments. A broader perspective should be taken.

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The CJEU in the Celmer case: One Step Forward, Two Steps Back for Upholding the Rule of Law Within the EU

Surrender cases are litmus tests for the EU’s approach towards the enforcement of the rule of law in the Member States. Without judicial independence and other elements of the rule of law concept, EU law will cease to be operational, whether in the context of the single market or outside of it. Aranyosi and LM are the beginning of a long journey. In a more general sense, these cases demonstrate that ultimately – as in all incomplete constitutional systems – it is the courts which play a crucial role in carving out and applying rule of law and fundamental rights exceptions.

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Rule of Law Retail and Rule of Law Wholesale: The ECJ’s (Alarming) “Celmer” Decision

A craving for the rule of law can be satisfied in two ways.   You can invoke it legally through a case-by-case checking of its presence in any particular instance (though of course, retail assessment means you’re at the mercy of the court near you) or you can better guarantee a steady and plentiful delivery by contracting wholesale, thus providing a legal constraint on the supplier’s ability to deviate.   This week’s decision of the European Court of Justice in the “Celmer” case (Case C-216/18 PPU, Minister for Justice and Equality v LM) tells us that the rule of law is now available retail in the European Union, but it is not now – and probably can never be – available wholesale.  

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How to Assess the Independence of Member State Courts?

Immediately after it was published, the judgment in Case C‑216/18 PPU Minister for Justice and Equality v. LM generated many varied assessments in Poland.  Some commentators treated the judgment as a general vote of no confidence against the Polish judiciary whilst others (including the Minister of Justice) found it to be a defeat of the Irish court. The judgment is used as an argument in current political disputes. Leaving aside, however, the aforementioned determinants, it is to be concluded that because of its approach to certain significant issues, the judgment does not yield to an unequivocal interpretation, and its actual consequences are still hard to anticipate.

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Individuals and Judges in Defense of the Rule of Law

In many ways, this case illustrates EU constitutionalism at its best: despite not being obliged to do so, the Irish judge made a request under Article 267 TEU, bringing together concerns raised by the pending Article 7 TEU procedure and the more technical and narrow issue of fair trial under Article 47 EU Charter. While the ECJ follows the path opened in Aranyosi for assessing the ‘real risk of breach’ under Article 47 EU Charter, in interpreting that provision it manages to weave in the wider Article 7 TEU contextual concerns as well, thereby considerably strengthening the constitutional status of the right to a fair trial.

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The Deficiencies Judgment: Postponing the Constitutional Moment

Much was at stake in the LM / Deficiencies decision. The Court of Justice was called to strike a complex balance between different interests, a balance that was bound to be controversial. While the ruling was not the defining ‘constitutional moment’, this moment might be only postponed. The Court made it clear that ‘red lines’ already exist in European constitutional law, and that it is willing to operationalize them. Nonetheless, it should not be forgotten that the Court should not replace the ‘political game’ – a game that is clearly on.

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We Still Haven’t Found What We’re Looking For

The diagnosis is grim. So, the CJEU should have done something! If the political class is reluctant, the law in the hands of the CJEU must be put to play. The conventional narrative has it that this has always been the case. This was the gist of the hope laid in the anticipated LM case. The CJEU has not lived up to those high expectations. This is not a landmark ruling and neither will its impact be of seismic constitutional proportions. The reason for that is, as we shall see, not the reluctance of the CJEU to address the problem seriously, but a plain fact that the expectations have been simply too high. While this is, most likely, as good as it can judicially get, the LM decision has still not brought us what we have been looking for. Nevertheless, we might be at least an inch closer toward that goal.

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A Clever Compromise or a Tectonic Shift? The LM Jugment of the CJEU

The LM judgment is certainly not the end, rather the beginning of a development. Its teaching is not that systemic deficiencies of the judiciary do not matter. Rather, such deficiencies shall be addressed systemically. Such systemic solutions may force the respective member state to adjust without making its participation in the EU abruptly impossible.

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