Year: 2021

Author: Laurent Pech, Nikolay Staykov, Núria González Campañá, Pola Cebulak

ISSN: 2736-5816

DOI: 10.53121/ELFPP9

In a recent and unusually blunt speech, the President of the Court of Justice of the European Union (CJEU) gave a stark and unprecedented warning: ‘I believe it is no exaggeration to say that its foundations as a Union based on the rule of law are under threat and that the very survival of the European project in its current form is at stake’.1 President Lenaerts explicitly referred in this context to the increasing number of challenges directed at the authority of the Court of Justice and the primacy of EU law, in particular, EU requirements relating to judicial independence, originating not only from politicians and the press but also from some national courts, including ‘certain constitutional courts’.2 A few months prior to this speech, in a case concerning Polish rules relating to the secondment of judges, EU Advocate General Bobek warned about the potential emergence of legal back holes within the EU itself: In a system such as that of the European Union, where the law is the main vehicle for achieving integration, the existence of an independent judicial system (both centrally and nationally), capable of ensuring the correct application of that law, is of paramount importance. Quite simply, without an independent judiciary, there would no longer be a genuine legal system. If there is no ‘law’, there can hardly be more integration. The aspiration of creating ‘an ever closer union among the peoples of Europe’ is destined to collapse if legal black holes begin to appear on the judicial map of Europe.3These stark warnings are, unfortunately, entirely warranted. While the EU is formally founded on a number of foundational values such as the rule of law, the fundamental premise on which the EU legal order is based – that each Member State shares with all the other Member States, and recognises that those Member States share with it, the common values referred to in Article 2 TEU4 – is becoming increasingly disconnected from the (autocratic) reality on the ground following many years of democratic and/or rule of law backsliding in particular in the two countries currently subject to the exceptional monitoring procedure laid down in Article 7(1) TEU.

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