Rule of law, national judges and the Court of Justice of the European Union: Let's keep it juridical

• Published date: 01 January 2021
• Author: Filipe Marques
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12386

KALEIDOSCOPE: ON THE INDEPENDENCE

OF THE JUDICIARY

Rule of law, national judges and the Court of

Justice of the European Union: Let's keep it

juridical

Filipe Marques*

Abstract

The debate on the rule of law in the EU is mainly taking place from an EU law point of view, stem-

ming from the analysis of CJEU judgments and its interpretation of general principles and primary

EU law. This article argues that only by comprehending the global context of rise of populism and

delegitimation of the judiciary may we realise the risks that national judges and the CJEU started to

take when they entered the stage of this discussion. An overview is made of the global trend of

delegitimation of the judiciary, referring to the example of Poland. The author then analyses how

the CJEU and national courts, while defending the rule of law, are also mutually contributing to their

own protection against external threats, and why that dialogue is essential to keep the debate

juridical, as a way of avoiding what the author identifies as the “populist trap to the judiciary”.

1|INTRODUCTION

The purpose of this article is to analyse the role of the dialogue between national judges and the Court of Justice of

the European Union (CJEU) in the current debate on the rule of law in the European Union.

This debate is mainly taking place from an EU law point of view, based on an analysis of the judgments issued by

the CJEU and its interpretation of general principles of EU law and primary EU law. I argue in this article that only by

seeing reality through a political lens will we be able not only to understand the importance of the current juridical

debate but also precisely to keep it juridical. To comprehend the global context of the rise of populism and delegiti-

mation of the judiciary is key in order to realise the risks that national judges and the CJEU took when they decided

to take part in this discussion and what they need to do to avoid those risks.

In order to frame the topic, in Section 2, I will give an overview of the global trend of delegitimation of the judi-

ciary in a context of the rise of populism and what I consider to be the populist trap for the judiciary. I will also offer

a quick analysis of the concrete example of that delegitimation unfolding in Poland.

In Section 3, I will analyse how the CJEU and national courts, while defending the rule of law, are also mutually

contributing to their own protection against external threats and why that dialogue is essential to keep the debate

juridical, as a way of avoiding the populist trap.

* Judge in Portugal, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés).

Received: 16 April 2021 Accepted: 16 April 2021

DOI: 10.1111/eulj.12386

228 © 2021 John Wiley & Sons, Ltd. Eur Law J. 2021;27:228–239.wileyonlinelibrary.com/journal/eulj