The rule of law and judicial independence in the face of the primacy of EU law: conflicts between the CJEU and the constitutional courts

• Pages: 489-526
• Author: Ander Loyola Sergio

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THE RULE OF LAW AND JUDICIAL INDEPENDENCE IN THE

FACE OF THE PRIMACY OF EU LAW: CONFLICTS BETWEEN

THE CJEU AND THE CONSTITUTIONAL COURTS

ANDER LOYOLA SERGIO

5

Public University of Navarre (UPNA). Spain.

SUMMARY: 1. INTRODUCTION: NEW FORMULATIONS OF AN OLD JU-

RISDICTIONAL CONFLICT. 2. BRIEF HISTORICAL EXPERIENCE ON THE

CLASHES BETWEEN THE CJEU AND CONSTITUTIONAL COURTS ON

THE PRINCIPLE OF PRIMACY. 3. JUDICIAL INDEPENDENCE AS A NEW

CAUSE OF CONFLICT. 3.1. A twist in the CJEU’s case law on judicial inde-

pendence. 3.2. The CJEU’s assault to judicial reforms contrary to judicial

independence: the Polish saga. 3.3. The reaction of the TK: the disrup-

tion of the balance between primacy and sovereignty. 4. LUXEMBOURG

IN THE MIRROR OF EUROPEAN INTEGRATION: FROM "5}*5$

CONTROL TO A CLASH OF LEGITIMACY. 5. CONCLUSIONS: A CONFLICT

BEYOND THE JUDGE’S ROBE. 6. BIBLIOGRAPHY. 7. CASE–LAW.

1. INTRODUCTION: NEW FORMULATIONS OF AN OLD

JURISDICTIONAL CONFLICT.

Article 2 of the Treaty on European Union (hereinafter TEU) sets out the

fundamental values that make up the identity of the European Union (hereinafter

EU). These values are not created ex novo, but rather, as the provision itself

recognises, “are common to the member states”, i.e. they are common to their

ANDER LOYOLA SERGIO

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constitutional traditions, which implies recognising them as having a core

normative dimension and, consequently, a justiciable nature.1

Among these values, respect for the rule of law stands out, within which

the independence of the judiciary is a key element. Their relevance in terms

of the basic principles of European integration is such that they are among the

        

        2

Likewise, the right to effective judicial protection and a fair trial, enshrined in

Article 47 of the Charter of Fundamental Rights of the EU (hereinafter CFR),

includes judicial independence as a crucial component for its compliance.3

Beyond identifying the essential elements of the rule of law or the strict legal

basis of judicial independence within the EU,4 we would like to point out that,

despite this varied normative basis, the Court of Justice of the European Union

(hereinafter CJEU), has recently developed an autonomous and substantive

body to guarantee and control the independence of state courts. This recent

development, which arose in the context of (and in response to) the crisis of the

rule of law in some member states, will be examined below.

Due to its underlying alignment with the constitutional traditions from

which it originated, the independence of the judiciary was always perceived as an

unquestionable fact and had not represented any concern.5 However, it began

to be seen as one of the central challenges and concerns for the EU, prompting

high-level institutional mechanisms to safeguard it.6

1 MARTÍN Y PEREZ DE NANCLARES, José, “La Unión Europea como comunidad de valores:

a vueltas con la crisis de la democracia y del Estado de Derecho”, in Teoría y Realidad Constitucional,

no. 43, pp. 129-131.

2 The “Copenhagen criteria”, adopted by the Council held in Copenhagen under the Danish

Presidency in 1993, are the elements that any EU candidate state must fulfil in order to join the EU.

LÓPEZ AGUILAR, Juan Fernando, “El caso de Polonia en la UE: retrocesos democráticos y del estado

de derecho y “dilema de Copenague”, in Teoría y realidad constitucional, no. 38, 2016, p. 107.

3 LIÑÁN NOGUERAS, Diego J., “La internacionalización del Estado de Derecho y la Unión

Europea: una traslación categorial imperfecta”, in Estado de derecho y Unión Europea, dir. Diego J.

Liñán Nogueras and Pablo J. Martín Rodríguez. Tecnos, Madrid, 2018, pp. 39-68.

4 URBANEJA CILLÁN, Jorge, “El régimen general de condicionalidad para la protección del

presupuesto de la Unión Europea: ¿un mecanismo efectivo de garantía del Estado de Derecho en los

Estados miembros de la Unión Europea?”, in 5$0$5!6&&!, no. 78-79,

2021, pp. 144-153.

5 CORTÉS MARTÍN, José Manuel, “Sorteando los inconvenientes del artículo 7 TUE: el

advenimiento del control jurisdiccional del Estado de derecho”, in 5& 0

Europeo, no. 66, 2020, p. 478.

6 The activation by the Commission of the different policy mechanisms, such as the

preventive mechanism (Article 7(1) TEU), the sanctioning mechanism (Article 7(2) TEU), or

conditionality in access to EU budget funding, are not covered in this study.

THE RULE OF LAW AND JUDICIAL INDEPENDENCE IN THE FACE OF THE PRIMACY OF EU LAW

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This study focuses on the evolving role of the CJEU since 2018 in reviewing

state judicial reforms, particularly through the litigation initiated against

Poland.7 This lawsuit has given rise to an interesting substantive debate, which

refers not only to the characterisation of judicial independence as part of the rule

of law and the delimitation of its contents, but more directly to the justiciability

that a new formulation of effective judicial protection has received under EU law.

Specifically, the scope of the CJEU’s competences to control the impact of internal

regulations of the administration of justice, as well as the limits of its jurisdiction.

The essential question underlying this discussion has been summarised, in

simple terms, as follows: when the essential assumptions of the rule of law begin

to breakdown in one of the member states, what is the normative basis for the

jurisdictional control of these elements and how far can the CJEU go?8 The aim

of this paper is to delve into the conflict generated by the answer to this question,

depending on the perspective taken and defended by each jurisdictional body.

In fact, this embodies one of the core and recurring dilemmas in the

European integration process, namely, what is the role of the member states

within the EU integration’s framework, built as a supra-state organisation with

an eminently political character? Or, brought into the scope of our study, what

is the role and the relationship that the CJEU should fulfil with respect to the

internal judicial bodies, including the constitutional courts, especially in the

context of a blockage in the deepening of European integration, aggravated by

the so-called crisis of the rule of law, which has sparked strong clashes among the

different bodies?

While a full analysis of all the issues raised by the considerable judicial

(and political) conflicts arising from the application of the principle of judicial

independence at the European level is clearly beyond the scope of this paper, we

will focus on the interrelation of the different categories and issues contained in

its title: the origin of conflicts between the EU and some member states and the

clash between the CJEU and the constitutional courts, which necessarily leads us

to analyse their operability with the primacy of EU law.

Thus, against a backdrop of the scenario of conflict between the highest

jurisdictional spheres of the states and the EU, in this study we will first deal

with the effects derived from the convergence of the primacy clause and this

new jurisprudence on judicial independence and the rule of law, which will

lead to progress in the paradigm of EU constitutionalisation with consequences

that are as yet unfinished. For this purpose, we will address the precedents of

7 TORRECILLAS MARTÍNEZ, Ana,  &$& & 0  { $!;

caso polaco, Tirant lo Blanch, Valencia, 2023.

8 IGLESIAS SÁNCHEZ, Sara, “La independencia judicial como principio constitucional en la

UE: los límites del control por el Tribunal de Justicia de la UE”, in Teoría y Realidad Constitucional, no.

50, 2022, p. 488.