Received: 25 April 2022 Accepted: 25 April 2022

DOI: 10.1111/eulj.12425

ORIGINAL ARTICLE

In courts we trust, or should we? Judicial

independence as the precondition for the
effectiveness of EU law

Petra Bárd*

Abstract
The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of
law problems in the Member States. This shows the double nature of the EU's separation of powers
problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmen-
tal powers, there is a risk of the crumbling of separation of powers at the EU level, too, where insti-
tutions fail to adequately address rule of law violations. Against the EU institution's lack of forceful
action towards rule of law backsliding, domestic courts try to protect judicial independence increas-
ingly via preliminary references. Also, they attempt preventing the proliferation of the consequences
of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This
article explores to what extent preliminary rulings can make up for the failure to use adequate EU
tools of rule of law enforcement.

1 | R U L E O F LA W D E C L I N E I N T H E E U

1.1 | Rule of law decline in the national setting is an EU matter

On the question whether there was such a thing as a ‘European tradition’, Winfried Hassemer, then vice president
of the German Federal Constitutional Court, contended that Europeanness had an autonomous meaning: it is envis-
aged as ‘a community of values (“Wertegemeinschaft”), representative of a certain tradition, which has created—

* Petra Bárd, Associate Professor, Eötvös Loránd University, Faculty of Law; Visiting Professor and Researcher, Central European University; Fernand
Braudel Fellow, European University Institute, bardp@ceu.edu. This work has been prepared under the auspices of the EU's Horizon 2020 research and
innovation programme as part of the RECONNECT project under Grant Agreement no. 770142. The author is grateful to Professor Laurent Pech and
Professor Kim Lane Scheppele for their wise suggestions on an earlier draft, as well as ELJ editor-in-chief Karine Caunes and ELJ reviewers for their
insightful comments. The usual disclaimer applies.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which
permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no
modifications or adaptations are made.
© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2022;1–26. wileyonlinelibrary.com/journal/eulj 1

2 BÁRD

though amongst pain and failures—patterns for a humane and at the same time viable world order’.1 The rule of law
has a special role for the European project, advancing a clear idea of constitutionalism taming nationalism by reduc-
ing the risk of another European war and spreading the model of liberal democracy to countries with an authoritarian
past. In the words of Will Kymlicka, ‘[f]ar from transcending liberal nationhood, the EU is universalising it, reordering
Europe in its image’.2
The rule of law is overarching, inherent in all the articles of the European Convention on Human Rights (ECHR)
and the case-law of the European Court of Human Rights (ECtHR), as Robert Spano, president of the Strasbourg
court, eloquently demonstrates.3 Since the decision in Golder v. The United Kingdom, the rule of law belongs to the
Council of Europe's common spiritual heritage.4 In the words of Koen Lenaerts, president of the Court of Justice of
the European Union (CJEU), ‘integration through the rule of law’ defines what the European Union today stands
for.5 The rule of law in the EU setting has the meaning defined for it by the ECHR6 and has been recognised by the
CJEU since the seminal Les Verts case,7 in which the Court ruled that neither EU institutions nor the Member States
are above the law.8 Together with other overarching values, such as democracy and fundamental rights, the rule of
law is embedded today in Article 2 of the Treaty on European Union (TEU). Member States freely acceding to the
EU voluntarily agreed to adhere to Article 2 TEU9 and to promote Article 2 values in line with Article 3(1) TEU.
‘European integration can only take place when both the EU institutions and the Member States respect the “rules
of the game”’,10 i.e. the EU can continue to be an entity based on the rule of law only if its constituent parts are
based on the rule of law as well. Furthermore, in line with the principle of sincere cooperation incorporated into Arti-
cle 4(3) TEU, the Member States must not hinder, but ought to assist EU institutions when promoting Article 2 TEU
values.11
Despite the above Treaty obligations, values such as democracy, the rule of law and fundamental rights that the
Member States and the European Union are supposed to share—the very same values that are prerequisites for EU
accession—are violated in several Member States. The EU even harbours countries in which systemic violations of the
rule of law are part of the system of governance.12 Unlike other types of infringements of a national constitution or
international law provisions, these systemic rule of law violations are intentionally designed to serve particularistic inter-
ests of the ruling majority and authorise arbitrary decisions with the effect of turning the rule of law into rule by law.13
To take some of the more salient examples of rule of law backsliding, when looking over a five-year period, the
World Justice Project's Rule of Law Index showed that Hungary's and Poland's respect for the rule of law has
declined more than in any other country in the region of EU/EFTA/North-America,14 whereas according to the Vari-
eties of Democracy (V-Dem), at least one EU Member State is not a democracy any longer,15 which also corresponds

1
W. Hassemer, ‘Strafrecht in einem europäischen Verfassungsvertrag’, (2004) 116 Zeitschrift für die gesamte Strafrechtswissenschaft, 308.
2
W. Kymlicka, ‘Liberal Nationalism and Cosmopolitan Justice’, in S. Benhabib (ed.), Another Cosmopolitanism (Oxford University Press, 2006), 128, 134–
135.
3
R. Spano, ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the Judiciary’,
(2020) 26 European Law Journal, 48.
4
Golder v. The United Kingdom, Application no. 4451/70, 21 February 1975.
5
K. Lenaerts, ‘New Horizons for the Rule of Law within the EU’, (2020) 20 German Law Journal, 29.
6
‘Some may question whether this framework of values within the EU is different under the European Convention. The answer is emphatically no. […] it is
clear that there is a symmetry of values between the two systems. This symmetry is an important conceptual building-block common to both systems
which facilitates the necessary judicial dialogue between the two Courts.’ R. Spano, see n. 3.
7
Case C-294/83, Les Verts, EU:C:1986:166.
8
K. Lenaerts, ‘Upholding the Rule of Law within the EU’, speech delivered at the RECONNECT Annual conference, Brussels, 5 July 2019.
9
Case C-621/18, Wightman and Others, ECLI:EU:C:2018:999, § 63.
10
W. Hassemer, see n. 1, 308.
11
C. Hillion, ‘Overseeing the Rule of Law in the EU’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge
University Press, 2016), 59.
12
In such systems, ‘elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture
internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’. L. Pech and
K.L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, (2017) 19 Cambridge Yearbook of European Legal Studies, 3, 8.
13
For a different view, see J. Waldron, ‘Rule by Law: A Much Maligned Preposition’, (2019) NYU School of Law, Public Law Research Paper, 1, 20.
14
https://worldjusticeproject.org/rule-of-law-index/global/2020.
15
https://www.v-dem.net/en/.
BÁRD 3

to the finding by Freedom House that Hungary is not a free country anymore.16 In the academic literature, Hungary
is classified as a ‘competitive authoritarian regime’,17 and Poland is said to have suffered a political capture of the
judiciary and the media, opening the way for unconstrained powers by the executive.18 Member States with such
rule of law records could obviously not join the EU, were they to apply today. Now that they have joined the
European club, they endanger the European project from within.19
Rule of law problems identified in the domestic setting primarily affect citizens and residents of that country,
since, for anyone to ‘retain and nurture independence of thought, to be able to manage his or her life as he or she
wishes, to be able to strive for happiness, success and inner peace, all fundamental elements of human existence, it
must conceptually be of paramount importance that the society in which that person lives is in reality, and not only
fictitiously, governed by law. […] Moreover, law must not only apply to the people, but also, and even more crucially
to those that hold the reign of power at any given moment’.20
On the one hand, if the EU acted more forcefully and dissuasively against the internal enemies of liberal democ-
racies, such action would correspond to the expectations of citizens from backsliding states, currently mainly from
the Eastern part of the EU, who had high hopes of joining the West not only economically but also in terms of
democracy, rule of law and fundamental rights.21 On the other hand, considering the EU as a whole and
encompassing EU Member States, these same tools and procedures to protect the rule of law could be seen as
essential elements of a Europe-wide system of checks and balances,22 i.e. as an additional layer above or next to
domestic correction mechanisms, that could be activated in case the democratic system in the national setting is no
longer capable of protecting itself against domestic political challenges superseding constitutional government.23
The effects of rule of law backsliding extend way beyond the borders of the state in which rule of law decline
takes place and spill over to the European Union, too. Should elections not be fair in a Member State, all EU citizens
and residents will to some extent suffer due to the given state representatives' participation in the EU's law-making
mechanisms. Should rule of law violations remain without consequences in one country, other states will follow suit.
And most importantly for the present discussion, once the values of Article 2 TEU including the rule of law are not
respected, the essential presumptions behind the core of the Union, such as mutual trust or mutual recognition, do not
hold anymore. This is what seems to be implied by the Court of Justice in its recent decisions on the rule of law condi-
tionality mechanism when it states that ‘[t]hat premiss (that each Member State shares with all the other Member
States, and recognises that they share with it, the common values, contained in Article 2 TEU, on which the European
Union is founded) implies and justifies the existence of mutual trust between the Member States that those values will
be recognised and, therefore, that the EU law that implements them will be respected’.24 In other words, the EU can-
not remain an entity based on the rule of law if its constituent parts themselves do not respect the rule of law.
Taking all the above concerns and European implications into account, one would expect the EU to react force-
fully and dissuasively to violations of Article 2 TEU values. This would also correspond to the institutions' obligations,
as enshrined in Article 13(1) TEU, to advance EU objectives, and to serve the interests of Union citizens. Failing to
do so would prevent the EU from delivering in terms of both daily operations and grand design.25 In order to protect

16
https://freedomhouse.org/country/hungary.
17
S. Levitsky and L.A. Way, ‘The New Competitive Authoritarianism’, (2020) 31 Journal of Democracy, 51.
18
W. Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’, 18 Sydney Law School Research Paper, 1.
19
About the “Belarusisation” of the EU from within, see U. Belavusau, ‘Case C-286/12 Commission v. Hungary’, (2013) 50 Common Market Law Review,
1145.
20
R. Spano, see n. 3.
A. Nußberger, ‘From High Hopes to Scepticism? Human Rights Protection and Rule of Law in Europe in an Ever More Hostile Environment’, in
21

H. Krieger, G. Nolte and A. Zimmermann (eds.), The International Rule of Law: Rise or Decline? (Oxford University Press, 2019), 150.
22
For a full description, see K. Loewenstein, ‘Militant Democracy and Fundamental Rights’, (1937) 31 The American Political Science Review, 417. For a

(ed.), Militant Democracy (Eleven International Publishing, 2004); G. Capoccia, ‘Militant Democracy: The Institutional
revival of the concept, see A. Sajo
Bases of Democratic Self-Preservation’, (2013) 9 Annual Review of Law and Social Science, 207.
23
R. Spano, see n. 3.
24
Case C-156/21, Hungary v Parliament and Council, ECLI:EU:C:2022:97, § 125; Case C-157/21, Poland v Parliament and Council, ECLI:EU:C:2022:98, § 143.
25
D. Kochenov, ‘The EU and the Rule of Law: Naïveté or a Grand Design?’, in M. Adams, A. Meuwese and E.H. Ballin (eds.), Constitutionalism and the Rule
of Law: Bridging Idealism and Realism (Cambridge University Press, 2017), 419.
4 BÁRD

the European project and the EU legal structure, and in line with Article 13(2) TEU, institutions ought to engage in
sincere mutual cooperation and tackle rule of law violations in a coordinated manner. The past decade of European
history has taught us that for the EU response to be effective, there should be a regular, contextual, objective scru-
tiny, based on equal treatment of the Member States. Preferably as many sources as possible should feed into this
process, with a special regard given to civil society actors and academia. Once a problem is identified, EU institutions
must acknowledge the gravity of the issue, call it by its name, act promptly and unambiguously and focus on legal
consequences of rule of law violations or backsliding, including dissuasive sanctions and their follow-up. The war in
Ukraine has shown that the EU can unite when confronted with an external threat by an autocratic regime. It is to
be hoped that the war at the EU's doorstep will also lead to the undeniable realisation that internal threats do need
to be tackled seriously as well. In the era of “strategic autonomy”, if not “European sovereignty”, the self-proclaimed
“illiberal democracies” are a liability and weaken the EU from the inside. If, as asserted in Article 3 TEU, ‘the Union's
aim is to promote peace, its values and the well-being of its peoples’, now is the time to act before the European
Union loses its raison d'être and peace, its values and the well-being of its peoples are relegated to the pantheon of
mythical foundations.

1.2 | The dual nature of the EU's separation of powers problem

As will be shown in the next section, EU institutions, rather than making use of the tools they have available
against rule of law backsliding, tend to look away, even though the phenomenon is a threat to their very own exis-
tence.26 They act as if the “old” Europe did not mentally integrate new states from the “East” as equal members,
as if the Iron Curtain was paradoxically still an invisible yet vivid but illusory protection of the “core” against con-
tamination. Whereas time matters and response matters for the viability and integrity of EU law and the European
Union, European institutions engage in meaningless dialogues with governments that do not share the same lan-
guage of constitutional democracy. This shows the dual nature of the problem. Some nation states suffer from a
rule of law decline, lack of limitation of governmental powers and separation of powers in general, with judicial
independence being the first target of state capture. At the same time, there is a risk of the crumbling of checks
and balances at the EU level, where institutions fail to play their part and adequately step up against rule of law
violations in the multilevel constitutional arena. While in the national setting a power grab can be traced, in the EU
an opposite phenomenon can be seen: a failure to act, despite constitutional authorisation and obligation foreseen
by the Treaties.
Both power grab in the national setting and passivity at the EU level have a veneer of legality. Non-
democracies hide rule of law infringements behind abusive constitutionalism, i.e. the mechanism of constitutional
change, in order to create authoritarian or semi-authoritarian regimes. As a result, at a superficial glance, and with-
out a contextual assessment, these systems still look democratic and contain various elements that are well known
from liberal democracies.27 But an in-depth contextual analysis shows that constitutional and other legal changes
are introduced to serve the particularistic interests of the ruling majority and authorise arbitrary decisions with the
effect of turning the rule of law into rule by law. Instead of limiting government, these constitutional and legislative
changes are there to entrench governmental powers and to silence and shrink the space for criticism and civil
participation.
But also in the EU, institutions hide their inaction behind alleged constitutional concerns of vertical separation
of powers, this time in the opposite direction: they try to legitimise their overcautious approach and lack of dissua-
sive response to Member State rule of law (and ultimately Treaty) violations with a very narrow understanding of

26
T.T. Koncewicz, ‘The Existential Jurisprudence of the Court of Justice of the European Union: An Essay on the Judicial Incrementalism in Defence of
European First Principles’, in K. Szczepanowska-Kozłowska (ed.), Profesor Marek Safjan znany i nieznany. Księga jubileuszowa z okazji siedemdziesiątych
urodzin (C.H. Beck, 2020), 223; L. Pech and K.L. Scheppele, see n. 12.
27
D. Landau, ‘Abusive Constitutionalism’, (2013) 47 UC Davis Law Review, 191.
BÁRD 5

supranational competences, conferral of powers and an alleged lack of legitimacy in interfering in domestic affairs,28
thus putting into question the tenets of 70 years of European integration. Sometimes even horizontal separation of
powers is violated in order to prevent EU institutions from promptly responding to rule of law decline.29 In the face
of gross violations of the rule of law, it is especially worrying that instead of coordinated action against rule of law
backsliding, each of the institutions have promoted their own understanding of the rule of law review exercise; that
the sanctioning prong of Article 7 TEU has never been activated; that the preventive prong was halted by the Coun-
cil at the dialogue phase; that EU money still flows to governments denying Article 2 TEU values;30 and that the
Commission, supposedly the guardian of the Treaties, hides behind euphemistic expressions of concern and politi-
cises the issue instead of giving preference to the legal response prong of rule of law enforcement.31 We will not
explore the many extralegal factors behind the EU institutions' lethargy when it comes to the use of their existing
powers.32 For our analysis it is sufficient to note that the ‘European Union and the Member States seem to be doing
as little as they can to resolve this situation’.33
In face of EU institutions' passivity, normalising abusive constitutionalism, and especially the Commission's
silence, the judiciary engaged in self-help at various levels of the multilevel European legal space. In the national set-
ting, judges are putting a halt to EU legal instruments that had been adopted on the basis of the assumption that all
Member States are respecting Article 2 TEU values. In domestic proceedings and in the form of preliminary refer-
ences addressed to the CJEU, they also question whether governmental steps in some countries correspond to judi-
cial independence as understood in EU law. A new set of challenges allowed the CJEU to unfold the concept of
judicial independence as the connecting element ‘between EU law and the enforcement of Article 2 TEU values out-
side the scope of the acquis stricto sensu’.34 The CJEU laid down a number of important judgments and developed a
promising case-law in recent years to tame or prevent further proliferation of rule of law backsliding. But the rule of
law problem cuts deeper than judicial capture.35 And even in the judicial independence–related case-law, the CJEU
confirms national judicial concerns only to a certain extent and still insists on the long-rebutted claim that values are
shared.36 As a consequence, the CJEU ultimately subordinates Article 2 TEU values to so-called First Principles37
such as supremacy, direct effect, autonomy, national or constitutional identity, mutual recognition or the concept of

28
C. Closa, ‘The Politics of Guarding the Treaties: Commission Scrutiny of Rule of Law Compliance’, (2019) 26 Journal of European Public Policy, 696; A. von
Bogdandy, ‘Principles of a Systemic Deficiencies Doctrine: How to Protect Checks and Balances in the Member States’, (2020) 53 Common Market Law
Review, 705.
29
See the saga of the Conditionality Regulation in the next section.
30
E. Krukowska and S. Bodoni, ‘Ukraine War Adds to EU Doubts over Pursuing Poland, Hungary’, (14 March 2022) Bloomberg, https://www.bloomberg.
com/news/articles/2022-03-14/eu-to-hold-back-on-rule-of-law-budget-fight-amid-war-in-ukraine; L. Bayer, ‘War in Ukraine Envelops EU Rule-of-Law
Fight at Home’, (17 March 2022) Politico, https://www.politico.eu/article/war-risks-pushing-aside-eu-rule-of-law-concerns/. Cf. E. Łętowska, ‘The Rule of
Law in a Time of Emotions’, (4 March 2022) VerfBlog, https://verfassungsblog.de/rule-of-law-in-a-time-of-emotions/.
31
K.L. Scheppele and L. Pech, ‘Compromising the Rule of Law While Compromising on the Rule of Law’, (13 December 2020) VerfBlog, https://
verfassungsblog.de/compromising-the-rule-of-law-while-compromising-on-the-rule-of-law/; L. Pech, ‘Doing More Harm than Good? A Critical Assessment
of the European Commission's First Rule of Law Report’, (9 December 2020) RECONNECT blog, https://reconnect-europe.eu/blog/doing-more-harm-than-
good-a-critical-assessment-of-the-european-commissions-first-rule-of-law-report/.
32
For insightful analyses see C. Emmons and T. Pavone, ‘The Rhetoric of Inaction: Failing to Fail Forward in the EU's Rule of Law Crisis’, (2021) 28 Journal
of European Public Policy, 1611; R.D. Kelemen, ‘The European Union's Authoritarian Equilibrium’, (2020) 27 Journal of European Public Policy, 481; E. Bakke
and N. Sitter, ‘The EU's Enfants Terribles: Democratic Backsliding in Central Europe since 2010’, (2020) Perspectives on Politics, 1; C. Closa, ‘The Politics of
Guarding the Treaties: Commission Scrutiny of Rule of Law Compliance’, (2019) 26 Journal of European Public Policy, 696.
33
D. Kochenov, ‘Busting the Myths Nuclear: A Commentary on Article 7 TEU’, (2017) EUI Law Working Papers, 1, 9.
34
D. Kochenov and P. Bárd, ‘The Last Soldier Standing? Courts versus Politicians and the Rule of Law Crisis in the New Member States of the EU’, in
E. Ballin Hirsch, G. van der Schyff and M. Stremler (eds.), European Yearbook of Constitutional Law 2019: Judicial Power: Safeguards and Limits in a Democratic
Society (TMC Asser Press, 2019), 243. For an excellent and exhaustive overview of the case-law see L. Pech and D. Kochenov, ‘Respect for the Rule of Law
in the Case Law of the European Court of Justice. A Casebook Overview of Key Judgments since the Portuguese Judges Case’, (2021) 3 SIEPS, 1, https://
www.sieps.se/globalassets/publikationer/2021/sieps-2021_3-eng-web.pdf.
35
P. Blokker, ‘EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections’, in C. Closa and D. Kochenov (eds.),
Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016), 249; P. Blokker, ‘Populist Constitutionalism and Meaningful
Popular Engagement, The Foundation for Law’, (2018) Justice and Society Policy Brief, Centre for Socio-Legal Studies and Wolfson College, University of Oxford, 1.
36
See the press release in relation to Cases C-156/21, Hungary v Parliament and Council, ECLI:EU:C:2022:97, and C-157/21, Poland v Parliament and
Council, ECLI:EU:C:2022:98: ‘common values which are also recognised and applied by the Member States in their own legal systems and that they stem
from a concept of “the rule of law” which the Member States share and to which they adhere, as a value common to their constitutional traditions’.
37
The term was coined by D. A. O. Edward in his manuscript ‘An Appeal to First Principles’, quoted by T.T. Koncewicz, see n. 26.
6 BÁRD

judicial dialogue. It seems that the CJEU is unwilling to respond to rule of law backsliding and other gross violations
of Article 2 TEU to the fullest extent, in the face of other institutions being unable or unwilling to play their parts in
solving the delicate and complex issue of value crisis.

2 | T H E TO O L S A R S E N A L O F T H E E U F O R A D D R E S S I N G R U L E O F L A W
BACKSLIDING

The Copenhagen dilemma38 described in the previous section exists despite the fact that the EU has been a rule of
law actor for quite some time already. It counts on an increasing framework of institutions, tools and procedures that
help the EU engage in discussions, dialogues, monitoring, assessment, evaluation, benchmarking, supervision and
enforcement of values enshrined in Article 2 TEU.
In what follows, we will focus exclusively on enforcement, in order to make the point that the EU is not a paper
tiger when it comes to the enforcement of its own values.39 Institutions and procedures designed for monitoring the
state of the rule of law are important but only indirectly relevant for our discussion, so they will therefore not be
addressed.40 Neither will academic41 and political proposals of enforcement tools be discussed, although it is worth
pointing out that there are some promising ones in the pipeline.42
Several authors argue that the appetite for new tools of enforcement, monitoring and discussion platforms gives
only the (false) semblance that the EU is taking steps against rule of law backsliding, and in fact they only veil
European inaction.43 A worrying trend is the mushrooming of new procedures premised on debate and
deliberation,44 missing any dissuasive and effective legal consequences attached to a determination of systemic rule
of law problems. Even though instruments of enforcement described below could be enhanced via Treaty changes,
they could be used much more efficiently even as they stand today.
One of the “hard laws” foreseen for enforcement with a treaty basis is the corrective arm of Article 7 TEU
designed for determining a serious and persistent breach of values enshrined in Article 2 TEU (Article 7(2)) and

38
European Parliament, Plenary debate on the political situation in Romania, statement by Viviane Reding (12 September 2012). See also Viviane Reding,
‘The EU and the Rule of Law: What Next?’, (4 September 2013) speech delivered at the Center for European Policy Studies.
39
For previous attempts at taking stock of enforcement tools, see A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values (Oxford
University Press, 2016); L. Pech and D. Kochenov, ‘Strengthening the Rule of Law within the European Union: Diagnoses, Recommendations, and What to
Avoid’, (2019) RECONNECT Policy Brief, 14, https://reconnect-europe.eu/wp-content/uploads/2019/06/RECONNECT-policy-brief-Pech-Kochenov-
2019June-publish.pdf.
40
Article 7(1) TEU, the Commission's EU Justice Scoreboard, the Commission's Rule of Law Framework, the Council's dialogues on the Rule of Law, the
European Semester, the Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG) of the European Parliament's Committee on Civil
Liberties, Justice and Home Affairs (LIBE) and the Cooperation and Verification Mechanism (CVM) are therefore not discussed here.
41
Such as scrapping the Charter of Fundamental Rights from its Article 51 making it a “union standard” ‘irrespective of the subject-matter at issue, that is
to say irrespective of whether it falls within federal or State competence’. K. Lenaerts, ‘Respect for Fundamental Rights as a Constitutional Principle of the
European Union’, (2000) 6 Columbia Journal of European Law, 18, 21; A.D.L. Knook, ‘The Court, the Charter, and the Vertical Division of Powers in the
European Union’, (2005) 42 Common Market Law Review, 367; or the reform of the Authority of European Political Parties and European Political
Foundations to ensure EU political parties' adherence to Article 2 TEU values by suspending funding for the whole European party as foreseen by
Regulation 1141/2014. On the limitations and potentials of Regulation 1141/2014 in this context, see J. Morijn, ‘Responding to “Populist” Politics at EU
Level: Regulation 1141/2014 and Beyond’, (2019) 17 International Journal of Constitutional Law, 617.
42
See, for example, the European Parliament's Rule of Law, democracy, and fundamental rights (DRF) mechanism: European Parliament resolution of
25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental
rights (2015/2254(INL)), P8_TA-PROV(2016)0409; European Parliament resolution of 7 October 2020 on the establishment of an EU Mechanism on
Democracy, the Rule of Law and Fundamental Rights (2020/2072(INI)), Rapporteur: MEP Michal Šimečka.
Tool creation, however, seems to be unjustified: ‘rather than acting decisively using existing tools in a mutually reinforcing and forceful way, there seems
43

to always be a persistent temptation to blame the instruments available to either justify their non-inactivation, or their timid use’. L. Pech and A. W

ojcik,
‘“A Bad Workman Always Blames His Tools”: An Interview with Laurent Pech’, (28 May 2018) VerfBlog, https://verfassungsblog.de/a-bad-workman-
always-blames-his-tools-an-interview-with-laurent-pech/. R. Daniel Kelemen also makes this point rather forcefully, when he compares the EU to ‘a home
repair DIYer who constantly goes to the hardware store to buy new tools, rather than actually getting started on projects with the tools he has’. He sees
this phenomenon as not only unnecessary but also a cheap excuse for inaction. See ‘Curing the Virus of Autocracy in Europe: Q + A with Daniel Kelemen’,
(7 December 2020) UCL Europe Blog, https://ucleuropeblog.com/2020/12/07/curing-the-virus-of-autocracy-in-europe-qa-with-daniel-kelemen/.
44
E.g., the Commission's Rule of Law Framework, or the Council's dialogues on the Rule of Law.
BÁRD 7

attaching legal consequences to it (Article 7(3)). Compared with other tools, it has the clear advantage that its scope
is not limited to Member States' actions when they implement EU law, but it also covers breaches in areas in which
states act autonomously. But Article 7(2)–(3) TEU is not a regular, periodic scrutiny mechanism, Member States are
not treated equally and practice shows that Article 7(1) is seen as a (necessary) preliminary procedure of Article 7(2)
while it is not. One could immediately invoke Article 7(2) TEU, if need be, i.e. once constitutional capture had already
happened, instead of using an Article 7(1) procedure designed to flag a risk. The sanctioning prong of Article 7 would
have potentials for imposing dissuasive sanctions, but it is never triggered, and certainly not in due time, as a conse-
quence of the high threshold triggering the procedure which makes institutions hesitant to even have recourse to
the whole Article 7. Even if it was activated, it would be hard to bring the process to an end, due to both the high
thresholds and the lack of deadlines.
Article 7(2)–(3) TEU has never been used in practice due to the obstacle that any Member State—but the one
under scrutiny45—may veto the determination of a breach. But apart from political willingness to trigger the mecha-
nism or not, a problem may arise with regard to multiple Member States simultaneously subject to various Article
7 TEU procedures. They might shield each other and veto an Article 7(2) procedure against one another. Against this
background, in order to guarantee the effet utile of Article 7, it has been suggested that Article 7 TEU should not
allow the participation of a Member State already subjected to an Article 7(1) procedure, or to start Article 7(2) TEU
procedures against several Member States in one bundle, so that both or all of them are excluded from the voting.46
These proposals have not yet been tested, even though they could contribute to the effet utile of the provision, even
without a Treaty change.
Moving to the next set of tools, several studies point to the power of the purse vis-à-vis rulers that engage in
rule of law backsliding. In line with Article 142(1)(A) of the Regulation (EU) No. 1303/2013 (Common Provisions Reg-
ulation, hereinafter CPR), the Commission could suspend European Structural and Investment Funds for a Member
State that does not uphold the rule of law.47 The CPR is not a regular exercise and might thereby trigger criticism
about double standards, but a more extensive use of it may dispel such a claim. Instead of making better use of this
tool, however,48 European institutions came up with a general rule of law conditionality mechanism.49 One could
wonder whether this choice is not related to the institution(s) in charge or “discharged” in one case compared with
another, raising some puzzling questions pertaining to the separation of powers at the EU level and a possible imbal-
ance in favour of the Member States and their representative institutions. On 3 May 2018 the Commission put for-
ward the proposal for a regulation on the protection of the Union's budget (hereinafter Conditionality Regulation) in
case of generalised rule of law deficiencies in the Member States,50 which may lead to suspended or reduced pay-
ments to that country from the EU budget and may prohibit them from entering into new legal commitments. The
fate of the proposal itself illustrates both the cautious approach towards EU action mentioned in the introduction
and the vital issue of separation of powers at the Union level.

45
Article 354 TFEU provides that the Member State subjected to the Article 7 TEU procedure is excluded from voting.
46
K.L. Scheppele and R.D. Kelemen, ‘Defending Democracy in EU Member States: Beyond Article 7 TEU’, in F. Bignami (ed.), EU Law in Populist Times:
Crises and Prospects (Cambridge University Press, 2020), 413, 428.
47
I. Butler, Two Proposals to Promote and Protect European Values through the Multiannual Financial Framework: Conditionality of EU Funds and a Financial
Instrument to Support NGOs, (Civil Liberties Union for Europe, 2018), (https://drive.google.com/file/d/1UG4PIg7tObjUoK9tBKq3IdqCT-eB5iM9/view).
R.D. Kelemen and K.L. Scheppele, ‘How to Stop Funding Autocracy in the EU’, (10 September 2018) VerfBlog, https://verfassungsblog.de/how-to-stop-
funding-autocracy-in-the-eu/.
48
With regard to the ‘promotion of economically and environmentally sustainable investments for the waste sector, especially through the elaboration of
waste management plans in accordance with Directive 2008/98/EC on waste and the waste hierarchy’, the European Commission notified the need to
apply Regulation (EU) No. 1303/2013 and the suspension of Cohesion Funds. See Government of Romania, Fiscal and Budgetary Strategy for the Period of
2019–2021, 146, https://www.mfinante.gov.ro/documents/35673/150233/SFB2019-2021en_05062019.pdf. See also the European Parliament
resolution of 19 June 2020 on the reopening of the investigation against the Prime Minister of the Czech Republic on the misuse of EU funds and potential
conflicts of interest (2019/2987(RSP)).
49
The new law foresees a possible revival of the CPR, since Article 6(1) of the Regulation 2020/2092 of 16 December 2020 on a general regime of
conditionality for the protection of the Union budget provides that the Commission should first consider ‘other procedures set out in Union legislation’
that would allow for the protection of the Union budget more effectively, once it found that breaches of the rule of law in a Member State affect or
seriously risk the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way.
50
Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union's budget in case of generalised deficiencies as
regards the rule of law in the Member States COM/2018/324 final—2018/0136 (COD).
8 BÁRD

The proposal was considerably watered down on the way. According to the text adopted, rule of law breaches
will be sanctioned if they affect or seriously risk affecting the budget in a sufficiently direct way.51 Instead of the
original plans of a reverse qualified majority to block the Commission, in the revised version a qualified majority in
the Council must support the Commission's decision. But even the current version would contribute to attaching
effective sanctions to some forms of rule of law violations. Little wonder that Hungary and Poland, the most likely
candidates to be affected by the new rules, in a move that is often described as blackmail,52 threatened to block the
approval of the EU's seven-year budget, the Multiannual Financial Framework (MFF) and the Next Generation EU
COVID-19 recovery fund (NGEU), for which unanimity is required, in the event that the conditionality regulation
entered into force.53 The NGEU could have been re-created under enhanced cooperation or by going outside EU
law—even if with great difficulties54—but there is no mechanism for circumventing the unanimity requirement for
the MFF. As a compromise, the final text of the Conditionality Regulation55 was agreed to be accompanied by some
much debated guidelines on the way the Commission should apply the regulation. The European Council agreed to
finalise these guidelines once an action for annulment under Article 263 TFEU—which Hungary and Poland promised
to initiate—was decided upon by the CJEU.56 The European Parliament in a resolution,57 forcefully objected against
this power grab by the European Council. It held the European Council conclusions on the Conditionality Regulation
to be superfluous and recalled that the European Council must not exercise legislative functions. What is more, a
political compromise has been made not to trigger the mechanism until the CJEU decides the case—initiated by
Hungary and Poland, the two most likely candidates to be subjected to the sanctioning regime of the conditionality
mechanism—on the legality of the instrument. But a regulation is binding and effective as it stands irrespective of
any further interpretative measures. It is sufficient to invoke Article 278 TFEU, according to which actions before
the CJEU do not have suspensory effect. Nevertheless, the Commission kept its promise made in violation of the rule
of law and waited for the CJEU to pass its judgment. Finally, on 16 February 2022, the CJEU dismissed the Hungar-
ian and Polish claims on all accounts.58 In the meantime, the European Parliament emphasised that it is the duty of
the Commission to ensure the application of the Treaties and other pieces of EU laws and that the Commission must
‘abide by law, dura lex sed lex’.59 This means that the Conditionality Regulation should have been enforced as of
1 January 2021, irrespective of any potential annulment actions and guidelines.60 The European Parliament even
commenced an action for annulment in line with Article 263 TFEU claiming that the Commission failed to fulfil its
Treaty obligations.61 The Commission ascertained the European Parliament to apply the law,62 but for a long time it
did not happen, despite the CJEU judgment having been delivered and the guidelines formulated.63 Although the

51
Special meeting of the European Council (17, 18, 19, 20 and 21 July 2020)—Conclusions, Brussels, EUCO 10/20, 21 July 2020.
52
This step was referenced as hostage taking by K.L. Scheppele and L. Pech, see n. 31.
53
J. Valero, ‘Hungary and Poland Veto Stimulus against Pandemic’, (16 November 2020) EURACTIV, https://www.euractiv.com/section/economy-jobs/
news/hungary-and-poland-veto-stimulus-against-pandemic/; D.M. Herszenhorn and L. Bayer, ‘EU in Crisis over Hungary and Poland's €1.8 T Hold-up’,
(16 November 2020) Politico, https://www.politico.eu/article/eu-in-crisis-over-hungary-poland-budget-hold-up/.
54
On the legal concerns that may arise in relation to enhanced cooperation, see M. Nettesheim, ‘Keine Verstärkte Zusammenarbeit zu Lasten aller: Oder
wie “Next Generation Europe” nicht realisiert werden kann’, (20 November 2020) VerfBlog, https://verfassungsblog.de/keine-verstarkte-zusammenarbeit-
zu-lasten-aller/.
55
Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
56
Case C-156/21, Hungary v Parliament and Council, ECLI:EU:C:2022:97; Case C-157/21, Poland v Parliament and Council, ECLI:EU:C:2022:98.
57
European Parliament resolution of 17 December 2020 on the Multiannual Financial Framework 2021–2027, the Interinstitutional Agreement, the EU
Recovery Instrument and the Rule of Law Regulation (2020/2923(RSP)).
58
Case C-156/21, Hungary v Parliament and Council, EU:C:2022:97 and Case C-157/21, Poland v Parliament and Council, EU:C:2022:98.
59
Ibid., point 6.
60
Ibid., point 9. Cf. Article 278 TFEU, according to which actions before the CJEU do not have suspensory effect.
61
Ibid., point 8.
62
See actions for annulment according to Article 263 TFEU. A. Rogal, ‘Commission President von der Leyen Rejected Any Criticism by the European
Parliament’, (26 August 2021) The Parliament Magazine, https://www.theparliamentmagazine.eu/news/article/european-commission-rejects-meps-
demand-to-take-legal-action-on-ruleoflaw-violations. For an academic account of the reasons for which the Conditionality Regulation could be triggered,
see K.L. Scheppele, R.D. Kelemen and J. Morijn, ‘The EU Commission Has to Cut Funding to Hungary: The Legal Case. Report, Greens/EFA Group,
European Parliament’, (7 July 2021) Daniel Freund website, https://danielfreund.eu/wp-content/uploads/2021/07/220707_RoLCR_Report_digital.pdf.
63
Communication from the Commission, Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality
for the protection of the Union budget, 2 March 2022, C(2022) 1382 final.
BÁRD 9

Commission was initially planning to delay the mechanism in light of the war in Ukraine,64 it seems as if it finally
decided to act upon it regarding Hungary, just days after the 2022 general elections in the country, which saw Prime
Minister Viktor Orbán secure a fourth consecutive mandate, leaving little hope of a change in the current course of
rule of law backsliding.65 As for Poland, Commission President Ursula von der Leyen stated that the country does
not yet fulfil the rule of law conditions required to receive EU pandemic recovery funds.66
Even though the new instrument is promising, the saga surrounding its adoption shows a willingness to succumb
to rule of law violators, and fosters lingering doubts regarding the willingness of at least some institutions to make
prompt use of a new instrument that was allegedly more needed than ever. At the time of writing, it is only to be
hoped that recent news regarding the activation of the mechanism regarding Hungary and Poland will be followed
by concrete actions.
As for Articles 258 and 260 TFEU, they provide for Commission-initiated infringement procedures. These are
currently underused in the enforcement of the rule of law.67 When invoked, they are triggered too late, when the
irreparable harm has already been done. The procedures are too slow, so they cannot halt further backsliding. They
do not reflect the reality of systemic state capture, and the sanctions are not sufficiently followed up. As we have
argued elsewhere,68 for Article 258 infringement procedures to be truly effective, the European Commission ought
to frame rule of law problems as such. It should not waste time and postpone its legal actions during the first phase
of the process, while a Member State openly violates the rule of law. Interim measures should be used to put an
immediate halt to rule of law infringements that can culminate in serious and irreversible harm; and the CJEU should
automatically prioritise and accelerate infringement cases with a rule of law element. Also, the Commission could
bundle cases and point to the systemic nature of various problems.69 Finally, in line with Article 260, if the CJEU
finds a violation of Article 2 TEU, the Commission should closely scrutinise and carefully assess whether the Member
State in question took the necessary measures to comply with the judgment, and if not, it should bring the case
before the Court, specifying the amount of the lump sum or penalty payment to be paid by the Member State.
As the above analysis shows, the EU has many tools available to address rule of law violations in its Member
States: ‘the EU's toolbox of measures […] is already sufficiently comprehensive and sophisticated [to] contain rule of
law backsliding if the full set of current instruments is used promptly, forcefully and in a coordinated manner’.70 There-
fore, the fact that the EU came to harbour countries that are not considered to be democracies anymore cannot be
attributed to the EU's helplessness due to a lack of available tools. On the one hand, illiberal democracies have tried
to disguise their strong political will, pernicious strategies and fake narratives under the letter of the law, while on
the other hand, the EU executive and legislative branches have hidden their political impassiveness, if not weakness,
behind a plethora of soft and allegedly hard law tools. Both have nevertheless revealed the failures of national and
European separation of powers. However, in a somehow surprising twist, the counter-majoritarian institutions that
are national and European judiciaries have united in their role in trying to uphold a multilevel separation of powers
and rule of law.

64
E. Krukowska and S. Bodoni, see n. 30.
65
‘EU Budget Commissioner Johannes Hahn has informed the Hungarian authorities about the Commission's plans to “move on to the next step” and
formally “launch the rule of law conditionality mechanism”’. ‘Question Time with Commission President Ursula von der Leyen’, (5 April 2022) Europäisches
Parlament https://www.europarl.europa.eu/news/de/press-room/20220401IPR26529/question-time-with-commission-president-ursula-von-der-leyen.
66
C. Gijs, ‘Poland “Not There Yet” in Backtracking on Judicial Reforms to Get EU Cash’, (5 April 2022) Politico, https://www.politico.eu/article/poland-not-
there-yet-reform-receive-eu-recovery-funds-vdl/; V. Makszimov, ‘Commission to Trigger Mechanism That Could See Hungary Lose EU Funds’, (5 April
2022) EURACTIV,
https://www.euractiv.com/section/politics/news/commission-to-trigger-mechanism-that-could-see-hungary-lose-eu-funds/.
67
L. Pech, ‘Written Submission in Response to the Rule of Law Call by the Joint Committee on European Union Affairs of the Houses of the Oireachtas’,
(2021) RECONNECT Policy Brief, 8–11, https://reconnect-europe.eu/wp-content/uploads/2021/01/Policy-brief-LP-written-submission-in-response-to-
the-call-22JAN21_update.pdf.
68

ska-Simon, ‘Rule of Law Infringement Procedures: A Proposal to Extend the EU's Rule of Law Toolbox’, (2019) 9 CEPS Papers in
P. Bárd and A. Śledzin
Liberty and Security in Europe, 1.
69
K.L. Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule
of Law Oversight in the European Union (Cambridge University Press, 2016), 105.
70
L. Pech and D. Kochenov, see n. 39 (emphasis in original).
10 BÁRD

3 | COURTS FIGHTING FOR JUDICIAL INDEPENDENCE

Judicial independence is the sine qua non of separation of powers. Lacking the power of the purse or the sword,71 it
is their independence that ensures their legitimacy and authority.72
Judicial independence has an additional special role in the EU legal system. It is not only important from the indi-
vidual's perspective, with regard to his or her right to judicial remedy and a fair trial, but at the same time, it is
domestic courts together with the CJEU, i.e. ‘the European Community of judges’, which ensure that the EU and
national authorities respect the ‘rule of the game’ in a community based on the rule of law.73 But there is a shift in
focus: as Koen Lenaerts observes, making sure that national courts are providing effective remedies used to be suffi-
cient to secure the primacy, unity and effectiveness of EU law whereas, in the past decade, the emphasis has shifted
to protecting the independence of the domestic courts providing those remedies.74 Because—as explained in sec-
tion 2—other avenues against rule of law violations were not exploited, the CJEU and national courts were forced to
address violations of the rule of law and judicial independence.75 In this regard, two main intertwined paths or strate-
gies can be identified: the recourse to European judicial procedures in relation to judicial independence as a prerequi-
site for the proper application of EU law and questions related to the use of the European arrest warrant as an
instrument of judicial cooperation. Challenges to the rule of law have triggered the development of a new form of
judicial dialogue between national courts and the CJEU, whereby the latter is called upon by national courts to coun-
ter rule of law violations. These two strategies, however, have had different fates, questioning somehow the sacro-
sanct principle of EU law uniformity and the meaning of European integration.

3.1 | Infringement procedures and preliminary references in judicial independence

cases: Complementarity and shortcomings

In the EU, the rich case-law on judicial independence is the result of infringement procedures initiated by the Com-
mission and preliminary references initiated by domestic courts concerned for their peers or their peers' or their own
independence.
The CJEU established in a series of rulings the importance of judicial independence for the whole European
project, underpinned by specific Treaty provisions, such as Article 2 TEU on the founding values of the EU, Article 4(3)
TEU on the principle of sincere cooperation, and importantly Article 19(1) on the obligation to provide national reme-
dies for effective legal protection in the fields covered by EU law. In Case C-64/16, Associação Sindical dos Juízes Por-
tugueses (ASJP), the Court of Justice held that every Member State must ensure that national courts meet the
requirements of effective judicial protection, which is possible only if judicial independence is maintained.76 The
Court of Justice then held that in the fields covered by EU law, the independence of national courts is protected.
Expanding this argument further, in Case C-619/18, Commission v. Poland, on the forced early retirement of judges,
the Court of Justice held that the effective judicial protection of individuals as laid down in Article 19(1) TEU is a gen-
eral principle of EU law and that the absence of implementation of EU law is irrelevant for it to be invoked, in view of
the fact that this provision refers to the ‘fields covered by Union law’.77 The Court held that judicial independence
requires that national rules must be designed in such a way that judges are protected from temptations to give in to

71
A. Hamilton, The Federalist No. 78 (New-York Packet, 1788).
72
K. Lenaerts, see n. 5, 31.
73
Ibid., 29–30.
74
Ibid., 30.
Let us add that courts are always among the first institutions to be captured by anti-constitutional regimes. P. Bárd and L. Pech, ‘How to Build and
75

Consolidate a Partly Free Pseudo Democracy by Constitutional Means in Three Steps: The “Hungarian Model”’, (2019) Reconnect Working Paper,
1, https://reconnect-europe.eu/wp-content/uploads/2019/10/RECONNECT-WP4-final.pdf.
76
Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, ECLI:EU:C:2018:117, §§ 37–38.
77
Case C-619/18, Commission v Poland (Independence of the Supreme Court), ECLI:EU:C:2019:531, § 48.
BÁRD 11

external intervention or pressure, whether direct or indirect. Therefore, ‘a “court” is always to be understood as
meaning an “independent court”’ in the EU legal order.78
The CJEU discussed various aspects in its case-law on judicial independence. It laid down certain criteria on the
level of judicial remuneration. In ASJP and Vindel,79 the CJEU made clear that the level of judicial salaries must be
proportionate to the importance of the functions judges carry out,80 that salaries must be high enough to guarantee
independent judgments,81 and that the socioeconomic context and average salaries of civil servants need to be taken
into account when determining whether the above criteria are met.82
In Case C-619/18, Commission v. Poland, the CJEU recognised that the principle of irremovability of judges is
not absolute, but it also stated that exceptions to the principle must be justified by legitimate and compelling objec-
tives, proportionate to these objectives, and ensure the appearance of judicial independence in the eyes of
individuals.83
The CJEU has thus developed a rich case-law on judicial independence in support of its national counterparts.
The European judicial branch and its multilevel dialogue have proved to be the last safeguard against repetitive
onslaughts on the rule of law when other political and legal mechanisms have resoundingly failed to prevent back-
sliding. If such dialogue has often been illustrated and depicted as a tug of war surrounding the issue of primacy of
EU law,84 the rule of law cases exhibit an opposite but no less powerful dynamic of collaboration. Yet, both the
infringement procedure and the preliminary ruling procedure have shown structural and contextual limits worth
addressing in order to understand and possibly move out of the current predicament.
A procedure that plays an increasing role in rule of law cases is the preliminary ruling procedure, as enshrined in
Article 267 TEU. Such procedures are initiated by national courts and tribunals, and they are supposed to be there to
invite the CJEU to interpret EU law. As such, whereas the CJEU lays down important principles in the form of prelim-
inary rulings, they are not the sharpest tool of rule of law enforcement. Typically, they tend to give decentralised
answers to an EU-wide problem that goes beyond the lack of judicial independence and judicial cooperation (the lat-
ter discussed in the next subsection). Indeed, the weak side of the procedure from a rule of law perspective is that it
usually leaves the final assessment to national authorities that may not be in a position to adequately weight the
gravity of systemic rule of law issues. This is so especially in cases where the very problem to be addressed is judicial
independence.85 Furthermore, preliminary ruling procedures are by nature scattered. They are not tools of systemic
supervision. They are typically accelerated only if the individual concerned is incarcerated. The contextual and sys-
temic nature of rule of law backsliding is not considered; and finally, the aim of the procedure is not to impose dis-
suasive legal consequences on a Member State but to interpret EU law. Nevertheless, while providing
interpretations of what a court is for the sake of EU law, and setting limits to first principles such as mutual recogni-
tion, they may become valuable tools in preventing the spreading and cross-border proliferation of the consequences
of rule of law backsliding.
In most cases, it is another court that questions the independence of its peers. In A.K.86 it was the Chamber of
Labour and Social Security of the Polish Supreme Court that questioned the independence of the Disciplinary Cham-
ber of the Polish Supreme Court and that of the National Council of the Judiciary. There the CJEU left it to the refer-
ring court to answer its own questions, along with important elements of interpretation it provided. Relying on the

78
K. Lenaerts, ‘The Court of Justice and National Courts: A Dialogue Based on Mutual Trust and Judicial Independence’, speech delivered at the Supreme
Administrative Court in Poland, Warsaw, 19 March 2018.
79
Case C-49/18, Escribano Vindel, ECLI:EU:C:2019:106.
80
ASJP, § 45, Vindel, § 66.
81
ASJP, § 45, Vindel, § 72.
82
Vindel, §§ 70–71.
83
Case C-619/18, Commission v Poland (Independence of the Supreme Court), ECLI:EU:C:2019:531, § 79. See also Case C-192/18, Commission v Poland

ska-Simon, ‘On the Principle of
(Indépendance des juridictions de droit commun), ECLI:EU:C:2019:924. For an analysis see P. Bárd and A. Śledzin
Irremovability of Judges beyond Age Discrimination: Commission v. Poland’, (2020) 57 Common Market Law Review, 1555.
84
See, e.g., the infamous Weiss/PSPP case. German Federal Constitutional Court, 2 BvR 1651/15, 2 BvR 2006/15, Order of 29 April 2021.
85
Case C-216/18 PPU—LM Minister for Justice and Equality (Deficiencies in the system of justice), ECLI:EU:C:2018:586.
86
Joined Cases C-585, 624 & 625/18 A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), EU:C:2019:551.
12 BÁRD

CJEU's judgment, the referring court in fact held the challenged entities not to be independent for the sake of EU
law, Article 6 ECHR and Article 45(1) of the Polish Constitution.87
There is also a small number of instances in which it is not a court showing diffidence to another court, but
national judges on behalf of their own institution who are trying to uphold judicial independence by asking whether
they themselves were independent enough for the sake of EU law, and invite the CJEU to hold that the disputed
national provision or practice violates European norms. This is a last cry for help on the side of judges in a state in
which militant democracy in the domestic setting does not work anymore. For in a well-functioning democracy there
should be tools built into the system that prevent the silencing or influencing of judges, and if such a “silencing” law
is adopted, it should be screened out via constitutional scrutiny. A series of cases on the chilling effect of disciplinary
procedures on judges was challenged by the affected judges themselves.
In Atanas Ognyanov,88 the compatibility of a national provision with EU law was questioned, which equated the
presentation of the factual and legal context of a case in a preliminary reference with a provisional, premature judicial
opinion on the merits. This could disqualify a judge and oblige his or her final judgment to be set aside. Furthermore,
it could lead to the judge being subjected to action for damages for a disciplinary offence. This may well lead to
national judges refraining from referring questions for a preliminary ruling to the CJEU, thus jeopardising ‘the effec-
tiveness of the cooperation between the Court and the national court and tribunals established by the preliminary
ruling mechanism’.89 Therefore such a national rule was deemed to be in violation of Article 267 TFEU. In a similar
case, RH, the CJEU reaffirmed that a piece of national legislation, which obliges a national court to adjudicate on
pretrial detention without the opportunity to refer a question to the CJEU or to wait for its reply, is incompatible
with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights.90
Miasto Łowicz is a similar case. The peculiarity of the case lies in the fact that the CJEU declined to go into the
merits and declared the reference to be inadmissible.91 The cases Miasto Łowicz and Prokurator Generalny were dis-
cussed jointly by the CJEU. Albeit having very dissimilar facts—the former concerning public subsidies, the latter kid-
napping committed for financial gain—in both cases the state was a party, and the judges feared being subjected to
disciplinary proceedings if they were to decide against the state party. Therefore, they asked the CJEU to assess Pol-
ish law in light of EU norms including previous CJEU case-law on judicial independence. As if to prove their point,
the judges were summoned to attend a hearing concerning the reasons for turning to the CJEU and suggesting that
they were unduly influenced when filing their preliminary references. The irony is well summarised by Sébastien
Platon: ‘the judges who were afraid of being disciplined for exercising their duties were subject to disciplinary pro-
ceedings for exercising their duties by referring a matter to the CJEU, and were accused of a lack of independence
while asking the Court about their independence’.92 The CJEU declared the requests inadmissible, for lack of neces-
sity. According to the judgment, the questions referred to the CJEU are of a general nature and do not concern an
interpretation of EU law which would be needed for the resolution of the original disputes. The CJEU showed no
sensitivity towards the chilling effect of disciplinary proceedings and declared them to be irrelevant for not being
related to the main proceedings. Furthermore, the CJEU noted that the investigation proceedings have since been
closed on the ground that no disciplinary misconduct was proven.
Still, in this case, which was seemingly insensitive to the disciplinary proceedings against the referring judges, in
an important obiter dictum the CJEU stated that ‘[p]rovisions of national law which expose national judges to disci-
plinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot
[…] be permitted [since] the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a
result of making such a reference […] is likely to undermine the effective exercise by the national judges concerned

87
See Supreme Court of Poland, judgment of 5 December 2019, Case III Po 7/18, Resolution of 8 January 2020, Case I NOZP 3/19.
88
Case C-614/14, Atanas Ognyanov, ECLI:EU:C:2016:514.
89
Ibid., § 25.
90
Case C-8/19 PPU RH, ECLI:EU:C:2019:110.
91
Joined Cases C-558/18 and C-563/18, Miasto Łowicz, ECLI:EU:C:2020:234.
92
S. Platon, ‘Preliminary References and Rule of Law: Another Case of Mixed Signals from the Court of Justice Regarding the Independence of National
Courts: Miasto Łowicz’, (2020) 57 Common Market Law Review, 1849.
BÁRD 13

of the discretion and the functions’ (emphasis added) in relation to preliminary references.93 The CJEU also made an
important hint that concerns over systemic problems with judicial independence should preferably be formulated by
the Commission in the form of infringement procedures. As Laurent Pech and Dimitry Kochenov note, ‘as recalled
by the Court itself, its preliminary ruling jurisdiction is much more limited than its jurisdiction in infringement cases,
where the Court can directly find that a Member State has violated the principle of judicial independence’.94
Nevertheless, the inadmissibility judgment in Miasto Łowicz may well be seen as inconsistent with previous case-
law. We have known since the ASJP judgment95 that Article 19 TEU is broader in scope than Article 47 of the Char-
ter of Fundamental Rights, and it prohibits any national measure that could jeopardise the independence of judges
who may rule on the application of EU law. And since Atanas Ognyanov and RH, it is clear that disciplinary proceed-
ings started in connection with the preliminary reference submitted in connection to the original case are deemed as
having a chilling effect and likely to discourage domestic courts from exercising their rights under the Treaties. But in
Miasto Łowicz a more serious connecting factor seemed to have been needed.
As for the infringement procedure, two factors limit its effectiveness: the whim of the Commission and the whim
of the Member States dragged before the CJEU. Despite the existing case-law and the strong black letter law on
judicial independence, neither the Commission nor any Member State have made the first steps to expose the cap-
ture of the Hungarian court system, explored in detail in the preliminary reference in IS discussed below. Back in
2011, once judicial capture had already started via the early retirement of judges, the Commission did launch an
infringement procedure, but it misconstrued the case as age discrimination in violation of Directive 2000/78/EC.96
The case went much deeper to the core of judicial independence and the rule of law. But the mischaracterisation of
the central problem had severe consequences for the outcome of the case, and compensation of the victims, which
is a typical remedy in discrimination cases, was seen as an appropriate answer to a gross violation of judicial indepen-
dence, which goes way beyond the individual judges' employment concerns.97 Since 2012, many more legislative
changes could have triggered another infringement procedure, including the unlimited powers of the National Coun-
cil of the Judiciary, itself dependent on the executive, as discussed in the IS case. The omnibus legislation Act CXXVII
of 2019 could well have been subject to European scrutiny. It revived the main elements of the administrative court
reform that had been withdrawn under European pressure. Or one could consider the series of laws that were
adopted only to enable individual candidates that would otherwise not qualify to serve at courts. Judges at the Hun-
garian Constitutional Court (and by now most judges were appointed without opposition support) got entitled to be
appointed as ordinary judges without any application procedure whatsoever. In order to enable the appointment of a
specific candidate, the eligibility criteria for the position of Chief Justice of the Kúria have also been amended so that
experience in international tribunals or the Hungarian Constitutional Court could also be taken into account. But the
Commission failed to act.98
Against this background, procedures are invoked that would not have to play a role in the enforcement of the
rule of law, had the EU institutions done their job and started procedures foreseen for tackling the problem. Invoking
Article 259 TFEU by a Member State against another one for rule of law problems,99 a possibility that was

93
Joined Cases C-558/18 and C-563/18, Miasto Łowicz, ECLI:EU:C:2020:234, §§ 57–58.
94
L. Pech and D. Kochenov, see n. 39, 57.
95
Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, ECLI:EU:C:2018:117, §§ 37–38.
96
‘Hungary—infringements: European Commission satisfied with changes to central bank statute, but refers Hungary to the Court of Justice on the
independence of the data protection authority and measures affecting the judiciary’, (25 April 2012) European Commission—Press release, https://ec.europa.
eu/commission/presscorner/detail/en/IP_12_395. Cf. Venice Commission, ‘Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges
and Act CLXI of 2011 on the Organisation and Administration of Court’, (19 March 2012) CDL-AD(2012)001, para. 104, https://www.venice.coe.int/
webforms/documents/default.aspx?pdffile=CDL-AD(2012)001-e. See also Decision no. 33/2012 (VII. 17.) of the Hungarian Constitutional Court of
Hungary. The English translation is available at http://public.mkab.hu/dev/dontesek.nsf/0/0D0C4A0C9BF49CC4C1257ADA00524F96?OpenDocument&
english.
97
Case C-286/12, Commission v Hungary, ECLI:EU:C:2012:687.
98
V. Kazai, ‘One Step Back, Two Steps Forward: The Hungarian Judiciary's Independence Is Still in Danger’, (26 November 2019) VerfBlog, https://
verfassungsblog.de/one-step-back-two-steps-forward/.
99
D. Kochenov, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool’, (2015)
7 Hague Journal on Rule of Law, 153.
14 BÁRD

contemplated by the Dutch government,100 can be seen as a warning to the Commission that it fails to fulfil its tasks
as guardian of the Treaties, as they flow from EU law.101 A similar instance of an unusual use of legal avenues
occurred when the Commission failed to trigger the conditionality mechanism as prescribed by Regulation
2029/2020,102 and the European Parliament could not but sue the Commission over its inaction for a failure to
act.103
Further evidence of the lack of political will limiting the effectiveness of the infringement procedure, this time
from the part of the defendant Member State, can be found in the Polish rule of law saga. While the judicial dialogue
between the CJEU and the Chamber of Labour and Social Security of the Polish Supreme Court regarding the inde-
pendence of the Disciplinary Chamber of the Polish Supreme Court and that of the National Council of the Judiciary
was ongoing in the framework of the A.K. case, the Polish Parliament adopted a law intended to ensure that disciplin-
ary measures are imposed against judges who call into question the validity of other judges' appointments or the
legitimacy of a constitutional body.104 This muzzle law has a considerable chilling effect105 by essentially preventing
courts from applying the test developed in A.K. Thus, courts must choose between facing the consequences of a dis-
ciplinary procedure or disapplying EU law, as interpreted by the CJEU.106 The muzzle law is under scrutiny in the
framework of yet another infringement procedure started by the Commission in April 2020.107 It is worth mention-
ing that due to the failure of the Polish government to comply with the interim measures order of the then vice pres-
ident of the Court of Justice of 14 July 2021,108 consisting in suspending the application of the controversial
provisions of the muzzle law, on 27 October 2021, the vice president of the Court ordered Poland to pay to the
European Commission a daily penalty payment in an amount of €1,000,000 until Poland finally complied with the
July 2021 interim measures order or until the date of the judgment in the main proceedings. At the time of writing,
the main case was still pending. The fate of the Disciplinary Chamber is also subject to various EU proceedings. In
April 2020, following yet again another infringement procedure launched by the Commission, the CJEU ordered the
suspension of the Disciplinary Chamber,109 which Poland only partially complied with, i.e. the acting head of the
Supreme Court suspended the Chamber but with respect to disciplinary cases only. The CJEU rendered its final judg-
ment in July 2021 stating that, by restricting the right of courts to submit requests for a preliminary ruling to the
CJEU by way of triggering disciplinary proceedings, Poland violated EU law.110 In the absence of strong political
action, no legal action appears to be enough to stop rule of law backsliding in Poland.

100
On 1 December 2020, the Dutch Parliament's Second Chamber adopted a motion to launch such a procedure against Poland, to bring the latter country
‘before the Court of Justice for failure to fulfil an obligation under the Treaties’. As cited and translated by J. Morijn, ‘A Momentous Day for the Rule of
Law: The ECJ Hearing about the Disciplinary Regime for the Polish Judiciary’, (2 December 2020) VerfBlog, https://verfassungsblog.de/a-momentous-day-
for-the-rule-of-law/. Over time a coalition was forming around the Dutch government to make use of Article 259 TFEU. G. Íñiguez, ‘The Enemy Within?
Article 259 and the Union's Intergovernmentalism’, EU Institutions and Policy, https://www.thenewfederalist.eu/the-enemy-within-article-259-and-the-
union-s-intergovernmentalism?lang=fr.
101
K.L. Scheppele, D. Kochenov and B. Grabowska-Moroz, ‘EU Values Are Law, after All’, (2020) 39 Yearbook of European Law, 3.
102
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the
protection of the Union budget, OJ L 433I, 22.12.2020, 1–10.
103
European Parliament resolution of 10 June 2021 on the rule of law situation in the European Union and the application of the Conditionality Regulation
(EU, Euratom) 2020/2092 (2021/2711(RSP)); European Parliament resolution of 8 July 2021 on the creation of guidelines for the application of the general
regime of conditionality for the protection of the Union budget (2021/2071(INI)); Case C-657/21, Action brought on 29 October 2021—European
Parliament v European Commission, pending.
104

w powszechnych, ustawy o Sądzie Najwyższym oraz niekto
Ustawa z dnia 20 grudnia 2019 r. o zmianie ustawy—Prawo o ustroju sądo
rych innych ustaw
(Dz.U. 2020 poz. 190).
105
Poland. Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe
on amendments to the Law on the Common Courts, the Law on the Supreme Court and some other Laws, endorsed by the Venice Commission on 18 June
by a written procedure replacing the 123rd Plenary Session, CDL-AD(2020)017-e.
106
Despite the chilling effect of the law, the Polish Supreme Court adopted a Resolution attaching consequences to the illegal appointment of members of
the National Council of the Judiciary, which, however, was declared unconstitutional by the Polish Constitutional Tribunal. M. Wilczek, ‘Constitutional
Tribunal Rules in Favour of Polish Government against Supreme Court on Judicial Reform’, (21 April 2020) Notes from Poland, https://notesfrompoland.
com/2020/04/21/constitutional-tribunal-rules-in-favour-of-polish-government-against-supreme-court-on-judicial-reform/.
‘Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland’, (29 April 2020) European
107

Commission—Press release, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_772. See Case C-204/21, pending.

108
See the Order of the Vice-President of the Court, 14 July 2021, ECLI:EU:C:2021:593.
109
C-791/19 R, Commission v Poland (Régime disciplinaire des juges), Order of the Court (Grand Chamber), 8 April 2020, ECLI:EU:C:2020:277.
110
Case C-791/19, Commission v Poland (Régime disciplinaire des juges), 15 July 2021, ECLI:EU:C:2021:596.
BÁRD 15

The issue of follow-up turned out to be the Achilles heel of infringement actions in another set of cases, this
time against Hungary. ‘The infringement procedure is based on the belief that in the vast majority of cases, member
states may veer off the path of full EU law implementation accidentally. In such cases, infringement procedures,
albeit often slowly, tend to work.’ But Member States deliberately departing from the path of EU law pose whole
new questions.111 Neither with regard to the Russian-inspired law stigmatising NGOs, nor with regard to Lex CEU,
both of which had been declared contrary to various aspects of EU law, did the government implement the respec-
tive CJEU judgments. Not only did the Hungarian government not implement the judgment in Lex NGO;112 it also
started to apply it with regard to EU funding distribution, when a government-founded public foundation charged
with distributing funds rejected an NGO's grant application on the grounds that it had failed to comply with Lex
NGO.113 On the CJEU's condemnation of Lex CEU,114 the Justice Minister said that Hungary would implement the
judgment in line with the interests of Hungarians.115 Her additional remark that there was ‘no need for “mailbox uni-
versities”’—mirroring the government's earlier claims that the Central European university (CEU) was a virtual, fake,
non-existent institution of higher education—suggests that full implementation will not take place. These are obvi-
ously all nonsensical claims. CEU occupies several buildings in the heart of the Hungarian capital, and at the time had
1300 students from more than 100 countries, and about 350 faculty members. The targeted governmental attacks
on the university can be traced back to the sheer fact that CEU's founder, George Soros, was artificially erected to
the status of prime enemy of alleged Hungarian national interests.116 Despite the CJEU condemning Lex CEU for
violating various aspects of EU law including academic freedom, and the freedom to provide services, by the time
the judgment had been rendered, the case was essentially moot, the university had already moved to a more demo-
cratic country, Austria. Even after CEU's relocation to Vienna, Lex CEU has not been complied with. After another
non-compliance with a CJEU judgment, this time about the treatment of asylum seekers,117 Frontex withdrew from
Hungary out of fear of becoming complicit in human rights violations.118 These examples demonstrate that judicial
action, even with the best of intentions, often turns out to be too little too late, even more so without proper
enforcement.
Although the European judicial branch can be seen as the last safeguard against rule of law backsliding, practice
shows not only the limits of the EU system of procedures and remedies but also the shortcomings pertaining to a
lack of political resolve characterising the weakening of the checks and balances in the EU multilevel polity.

3.2 | Is mutual trust blind trust?

3.2.1 | Judges questioning the independence of their peers

The preliminary ruling procedure is often used as a tool to discuss systemic human rights violations and rule of law
backsliding in the criminal law area, too. Just as in the Miasto Łowicz case, discussed above, the legal issue concerns
the question whether systemic problems manifest themselves in actual individual cases.
In past years, we have witnessed several cases in which the CJEU clarified the consequences of the failure to
protect the values enshrined in Article 2 TEU in the issuing state, in the mutual recognition domain, with a special

111
A.K. Kádár, ‘A Warning to the Guardians’, (26 October 2020) EURACTIV, https://www.euractiv.com/section/justice-home-affairs/opinion/a-warning-to-
the-guardians/.
112
Case C-78/18, Commission v Hungary (Transparency of associations), ECLI:EU:C:2020:476.
113
Ibid.
114
Case C-66/18, Commission v Hungary (Enseignement supérieur), ECLI:EU:C:2020:792.
115
N. Thorpe, ‘Hungary Broke EU Law by Forcing Out University, Says European Court’, (6 October 2020) BBC News, https://www.bbc.com/news/world-
europe-54433398.
116
H. Grassegger, ‘Der böse Jude’, (12 January 2019) Basler Zeitung.
117
Case C-808/18, Commission v Hungary (Accueil des demandeurs de protection internationale), ECLI:EU:C:2020:1029.
118
M. Pronczuk and B. Novak, ‘E.U. Border Agency Pulls Out of Hungary over Rights Abuses’, (27 January 2021) New York Times, https://www.nytimes.
com/2021/01/27/world/europe/frontex-hungary-eu-asylum.html.
16 BÁRD

focus on the interpretation of the framework decision on the European Arrest Warrant.119 These cases are typically
initiated by the executing courts, not by the court which should render the decision on guilt and deliver the sentence.
The aim of these proceedings is not the determination that a certain domestic measure is contrary to EU law, includ-
ing provisions on judicial independence, but to prevent the proliferation of rule of law problems and infringements to
the right to a fair trial. In other words, the executing court does not wish to become complicit in human rights viola-
tions, and it therefore calls the CJEU to help, to allow it to depart from the principle of mutual trust, mutual recogni-
tion and the laws that are based on these principles.
As already stated in Opinion 2/13, autonomy considerations in the context of EU law must prevail over the rule
of law and human rights. Only ‘exceptional circumstances’ would warrant deviating from the mutual trust
principle.120,121 Later case-law in the form of preliminary rulings identified these exceptional circumstances. As for-
lda
mulated in Aranyosi and Ca raru122 with regard to prison conditions as a possible reason to halt surrenders, and
later reaffirmed in LM123 and Openbaar Ministerie124 with regard to deficiencies in the justice system, general suspen-
sion of mutual recognition is allowed only when a Member State has been condemned pursuant to the Article 7 TEU
procedure, and the sanctioning prong of the procedure has concluded. But this is just a theoretical possibility. It has
never happened yet, and for the practical difficulties discussed in section 2, it is not likely to happen unless Treaty
changes relax the procedural requirements. Alternatively, mutual recognition can be suspended in individual cases,
where a two-pronged test is satisfied. As a first step, the executing judicial authority must assess whether the issuing
state suffers from general deficiencies. When doing so, it must consider objective, reliable, specific and properly
updated information. General deficiencies can be proven—among other things—by documents triggering an Article
7 TEU procedure, irrespective of whether the preventive or sanctioning arm is invoked, and whether the procedure
came to an end or is still pending. Once a systemic problem with regard to Article 2 TEU values is determined, judges
have to move to the second, individual prong of the test, and the executing judicial authority must determine,
specifically and precisely, whether there are substantial grounds to believe that the person concerned by a
European Arrest Warrant will be exposed to a real risk of a human rights violation.125 This prong of the test is more
difficult to satisfy. Demonstrating individual concern is extremely burdensome for suspects and convicted persons
and close to impossible to prove.126 The test developed by the CJEU in these cases is not achievable, and it is highly
questionable whether it makes sense for the executing court to engage in a dialogue with the issuing court regarding
its own independence, as prescribed by the LM test.127 As a result of the lack of feasibility of the test, even though
systemic deficiencies of judicial independence in some Member States are well documented, there have been
hardly any cases in which instruments based on mutual trust have been halted by national courts, not even the
original case in LM.128

119
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,
OJ L 190, 18.7.2002, 1–20.
120
Court of Justice of the European Union, Opinion 2/13 of 18 December 2014, ECLI:EU:C:2014:2454, § 192.
121
‘The consequences for the rule of law are drastic: all the principles invoked by the ECJ to justify giving EU law the upper hand in Opinion 2/13 are
procedural, while the problems that the reliance on the ECHR is there to solve are substantive. Curing substantive deficiencies of the EU legal order with
the remedies confined to autonomy and direct effect is a logical flaw plaguing the EU legal system.’ D. Kochenov and P. Bárd, see n. 34, 273; D. Sarmiento
and E. Sharpston, ‘European Citizenship and Its New Union: Time to Move On?’, in D. Kochenov (ed.), EU Citizenship and Federalism (Cambridge University
Press, 2017), 226.
122
aldararu, ECLI:EU:C:2016:198, § 81.
Joined Cases C-404/15 and C-659/15 PPU—Aranyosi and C
123
Case C-216/18 PPU LM Minister for Justice and Equality (Deficiencies in the system of justice), ECLI:EU:C:2018:586, § 70.
124
Case C-354/20 PPU Openbaar Ministerie (Indépendance de l'autorité judiciaire ‘émission) L and P, ECLI:EU:C:2020:1033, § 52.
125
See W. van Ballegooij and P. Bárd, ‘Mutual Recognition and Individual Rights, Did the Court Get It Right?’, (2016) 7 New Journal of European Criminal
Law, 439; P. Bárd and W. van Ballegooij, ‘Judicial Independence as a Pre-condition for Mutual Trust? The CJEU in Minister for Justice and Equality v. LM’,
(2018) 9 New Journal of European Criminal Law, 353.
126
On these “Herculean hurdles”, see ibid.
127
It might work better with other types of fundamental rights. But even in this context, i.e., with regard to human rights concerns without rule of law
implications, it is a question whether the Aranyosi test is workable, with regard to the fact that there is no follow-up as to the guarantees given during the
surrender process. W. van Ballegooij, ‘European Implementation Assessment 2004–2020 on the European Arrest Warrant’, (2020) 2 EURCRIM.
128
Minister for Justice v Celmer (No. 5) [2018] IEHC 639, 19 November 2018.
BÁRD 17

It is not difficult to decode the line of thinking of the referring court in LM. According to the Irish High Court,
the Aranyosi case-law, applicable to detention conditions and potential violations of the prohibition of torture,
should not be followed, since rule of law problems related to the independence of the judiciary are systemic. The
document by which an Article 7(1) TEU procedure against Poland was started should have sufficed, as evidence, to
show that systemic problems exist that are inconsistent with rights and values granted in a democratic state subject
to the rule of law. Thus, surrender of any suspect should result in breach of his rights laid down in the ECHR and
the Charter of Fundamental Rights and should, accordingly, be refused. Once the CJEU rejected this suggestion
and insisted on both prongs of the test, the High Court followed it in the original case at hand.129 The judicial dia-
logue between the national courts went on for some time, until in the case Celmer (No. 5) the Irish Court—even
against its own conviction, but diligently following the instructions given by the CJEU—ordered the surrender of
the suspect.130
One case that did have such an outcome was decided by the Oberlandesgericht Karlsruhe,131 but even here the
second, individual prong of the judicial test was not applied. The court tried to apply the deficiency test according to
LM but did not find it feasible. The Karlsruhe court asked a number of questions to the issuing authority with regard
to its independence but then did not wait for the answers to arrive. Instead, it suspended the surrender proceedings
altogether. Although the specificities of the case132 may make it a narrow one, the Karlsruhe court did not seem to
believe that the responses from the Polish authorities could in any way change its assessment on the possible dan-
gers of surrender for the individual.
In the Joined Cases OG and PI,133 the CJEU held that German public prosecutor's offices do not amount to an
‘issuing judicial authority’ due to the fact that there was a risk of them being influenced by the executive in their
decision. From an individual rights perspective, this reasoning seems to open a more promising path. Irrespective of
the fact that there was subtle evidence showing that it never happens in practice, the Court held that the mere
potentiality of such an influence bars German prosecutors from qualifying as ‘judicial authorities’. The CJEU thus did
not find it necessary to deal with the individual effect of the possible non-independence of the prosecutors on a
case-by-case basis but held that due to a system failure and the potential influence by the executive, no single Ger-
man prosecutor can be deemed independent enough for the sake of issuing European Arrest Warrants. The case is
different from those discussed above. The German system of prosecutors was not criticised from a rule of law per-
spective but for an implementation mistake: prosecutors should not have been acknowledged as ‘issuing judicial
authorities’ for the sake of the schoolbook mutual recognition–based instrument, the European Arrest Warrant. As
the Venice Commission stated, ‘[T]he major reference texts allow for systems where the prosecution service is not
independent from the executive’.134 However, the logic could be transposed to cases involving rule of law backslid-
ing. If the sheer potentiality of pressure by the executive on prosecutors in a democracy based on the rule of law is
sufficient to determine a violation of EU law, without any need to demonstrate individual concern, defendants tried
by a captured judiciary in a state systemically violating the rule of law should not need to show either how they are
individually affected.
An invitation to make this finding came in the form of a preliminary reference from an Amsterdam court in Open-
baar Ministerie.135 The International Legal Aid Chamber (IRK) of the Amsterdam District Court asked the CJEU to

129
Minister for Justice v Celmer (No. 4) [2018] IEHC 484, 1 August 2018.
130
Minister for Justice v Celmer (No. 5) [2018] IEHC 639, 19 November 2018.
131
District Court of Appeals of Karlsruhe, Ausl 301 AR 15/19 of 17 February 2020. For a summary of national implementation of the judicial tests, see
P. Bárd and W. van Ballegooij, ‘The Effect of CJEU Case Law Concerning the Rule of Law and Mutual Trust on National Systems’, in V. Mitsilegas, A. di
Martino and L. Mancano (eds.), The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis (Hart, 2019), 455; P. Bárd and
J. Morijn, ‘Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU: Decoding the Amsterdam and Karlsruhe Courts’ Post-LM
Rulings (Part II)’, (19 April 2020) VerfBlog, https://verfassungsblog.de/domestic-courts-pushing-for-a-workable-test-to-protect-the-rule-of-law-in-the-eu/.
132
Especially the alleged involvement of two influential Polish nationals who are said to have bribed the witnesses to engage in perjury and to have
commissioned perpetrators to inflict bodily injury on the suspect.
133
Cases C-508/18 and C-82/19 PPU OG (Public Prosecutor's office of Lübeck) and PI (Public Prosecutor's office of Zwickau), ECLI:EU:C:2019:456.
134
Interim Opinion on the Draft Law on the State Prosecution Office of Montenegro, adopted by the Venice Commission at its 101st Plenary Session,
CDL-AD(2014)042-e, Venice, 12–13 December 2014.
135
Case C-354/20 PPU Openbaar Ministerie (Indépendance de l'autorité judiciaire ‘émission) L and P, ECLI:EU:C:2020:1033.
18 BÁRD

determine whether or not all surrenders to Poland should be suspended, considering that Poland had introduced
changes resulting in systemic and generalised deficiencies that may potentially hinder the independence of every sin-
gle judge in a country (aka the muzzle law mentioned above). The CJEU answered the question in the negative: sys-
temic rule of law problems should not automatically lead to the suspension of mutual trust in general. This would
contradict previous case-law which made general suspension of the Framework Decision on the European Arrest
Warrant dependent on successfully invoking the sanctioning arm of Article 7 TEU.136 It ‘would lead to an automatic
refusal […] and therefore to a de facto suspension of the implementation of the European arrest warrant mechanism
[…] whereas the European Council and the Council have not adopted the decisions envisaged’ in relation to Article
7 TEU.137 According to the CJEU, systemic or generalised deficiencies concerning the independence of the judiciary
of the issuing state ‘does not necessarily affect every decision that the courts of that Member State may be led to
adopt in each particular case’.138
Even in light of LM and Openbaar Ministerie, in theory, national courts retain the room for maneuver to refuse
surrenders, but it is extremely difficult to prove the individual concern, especially in light of the fact that the primary
source for determining such an individual concern is the very court whose independence is in doubt. Resembling the
judgment in Celmer (No. 5) by the Irish High Court when following the LM test, the IRK, having failed to persuade the
CJEU to allow a suspension of the European Arrest Warrant regime as a whole in case of generalised deficiencies,
authorised surrender of the individuals in the cases at hand.139
The CJEU thus developed an important strand of case-law with regard to the relation between mutual trust and
mutual recognition of court judgments on the one hand and Article 2 TEU values on the other in the form of prelimi-
nary rulings. This set of case-law is however problematic as far as the Court seems to give preference to European
First Principles to the detriment of values.
The CJEU desires to maintain the European Arrest Warrant system—based on mutual trust that presupposes
that all Member States are states based on the rule of law—fully operational, with a very narrow exception, even
with the cooperation of Member States where gross violations of judicial independence are a system feature. One
glimpse of hope, however, might come from the CJEU's recent judgments on the conditionality mechanism. As previ-
ously mentioned, the Court did stress that

[t]hat premiss (that each Member State shares with all the other Member States, and recognises that
they share with it, the common values, contained in Article 2 TEU, on which the European Union is
founded) implies and justifies the existence of mutual trust between the Member States that those
values will be recognised and, therefore, that the EU law that implements them will be respected.140

It remains to be seen whether such a statement will have a spillover effect on mutual recognition cases. Logic
would indeed command that, were the “common values premiss” to be lacking, so would mutual trust, justifying a
refusal to execute a European arrest warrant. It is at least to be hoped both for consistency considerations and obvi-
ously for the sake of upholding the rule of law in the European Union. It is nevertheless only a glimpse of hope con-
sidering that this is not the path the CJEU chose to take when it decided, again in two cases on the refusal to
execute European arrest warrants, less than a week after its judgment on the conditionality mechanism, to leave that
door closed.141 There is, however, hope that the CJEU will finally see such much-needed evolution of its case-law
for what it is: not as a way to bend EU rules and their rationale but, on the contrary, as a way to safeguard them,

136
Ibid., § 59.
137
Ibid., § 59.
138
Ibid., §§ 41–42.
‘IRK staat overlevering aan Polen toe voor uitzitten gevangenisstraf’, (27 January 2021), Rechtspraak, https://www.rechtspraak.nl/Organisatie-en-
139

contact/Organisatie/Rechtbanken/Rechtbank-Amsterdam/Nieuws/Paginas/IRK-staat-overlevering-aan-Polen-toe-voor-uitzitten-gevangenisstraf.aspx.
140
Case C-156/21, Hungary v Parliament and Council, ECLI:EU:C:2022:97, § 125; Case C-157/21, Poland v Parliament and Council, ECLI:EU:C:2022:98, §
143.
141
Joined Cases C-562/21 PPU and C-563/21 PPU X and Y v Openbaar Ministerie, ECLI:EU:C:2022:100.
BÁRD 19

simply because there is no justice without judicial independence, and when a rule of law violation has crossed the
Rubicon between an endemic and a systemic issue—provided that such distinction makes sense—it is time to take a
principled position. The CJEU does have the tools to do so, and whereas regarding other instances of rule of law vio-
lation one could understand the reasons why the CJEU would instead choose to leave political actors to their
responsibilities, when it comes to judicial independence, at the core of the judicial function in a democratic society,
the reasoning becomes much more difficult to follow, if not hard to swallow. As pressure, both internal and external,
on the rule of law continues to grow, hope remains for such a principled position to be finally adopted, because ulti-
mately, mutual recognition and judicial dialogue do indeed rest on the existence of mutual trust, which ought to be
based on common values, enshrined in Article 2 TEU. Any other position seems to rest on the fundamental failure to
realise that no one judicial system, national or European, can stand immune from rule of law backsliding and that
European integration means that political, legal and judicial systems at the national and European level are in a sym-
biotic relationship whereby, like a virus, rule of law backsliding cannot but contaminate the other parts of the
European body, until death do us part. The success of European integration can be its downfall if the EU and its
apparatus are not truly aware of its multilevel nature.
Lastly, the compatibility of the LM test with the ECHR is also doubtful.142 One may wonder whether such a
strict insistence on mutual recognition to the detriment of Article 2 TEU values may be in harmony with the Stras-
bourg case-law, especially the presumption of equivalent protection formulated in Bosphorus, which is rebuttable in
case of a manifest deficiency. In Avotins v. Latvia, the ECtHR declared the limits of mutual recognition from the view-
point of the ECHR, which is just as binding on EU Member States as EU law. The ECtHR warned that in case ‘a seri-
ous and substantiated complaint is raised before [a domestic court] to the effect that the protection of an [ECHR]
right has been manifestly deficient and that this situation cannot be remedied by […] Union law, [it] cannot refrain
from examining that complaint on the sole ground that [it is] applying Union law’. It remains to be seen what ‘exam-
ining that complaint’ means, and whether the proof of an individual concern, which is close to impossible, satisfies
this requirement or not.
Overall, the fight of domestic courts for judicial independence, especially national judges questioning their peers'
independence, highlights the multilevel dynamics of the struggle for the rule of law, while at the same time demon-
strates both the vitality and limits of European checks and balances. The courts' struggle without political institutions'
support will necessarily falter. In mutual trust cases, such a support could directly translate into establishing mecha-
nisms for suspending mutual trust once a rule of law related red line has been crossed.143

3.2.2 | Judges questioning their own independence

Case C-564/19144 is different from the above cases in the sense that it involves a judge pondering his own indepen-
dence. We argue that the questions in the preliminary reference—or at least those related to judicial independence—
should never have been asked in a well-functioning EU legal system. The reference was drafted only because the
many available tools the EU has to tackle rule of law issues were not activated or were wrongfully applied (see sec-
tions 2 and 3.1).
In IS a criminal proceeding was suspended by a Hungarian judge of the Pest Central District Court in a case in
which a Swedish national had been charged with criminal offences. The judge initially submitted three questions to
the Court of Justice. First, he asked whether the accused was denied the use of his first language (Swedish) during

142
See Avotins v. Latvia, 17,502/07, 23 May 2016, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45,036/98, 30 June 2005, §§
160–165. See also R. Spano, see n. 3, especially section 4.4.
143
P. Bárd, ‘Canaries in a Coal Mine: Rule of Law Deficiencies and Mutual Trust’, (2021) 2 Pravni zapisi, 371; L. Pech and P. Bárd, The Commission's Rule of
Law Report and the EU Monitoring and Enforcement of Article 2 TEU Values (Policy Department for Citizens' Rights and Constitutional Affairs, Directorate-
General for Internal Policies, 2022), 89, https://www.europarl.europa.eu/RegData/etudes/STUD/2022/727551/IPOL_STU(2022)727551_EN.pdf.
144
Case C-564/19 IS (Illégalité de l'ordonnance de renvoi), ECLI:EU:C:2021:949.
20 BÁRD

the proceedings, in accordance with Directive 2010/64/EU, considering that there is no register of independent
interpreters and translators in Hungary, as required by the Directive. Second, the judge asked whether the practice
of the then president of the National Judicial Office—entrusted with unlimited powers in the administration of courts
and elected by the Parliament and who happened to be a close ally of the government—of sidestepping the rules for
applying for court leadership positions, disregarding the opinion of the judges and filling positions through temporary
mandates was in line with the rule of law and judicial independence as guaranteed by the Treaties. Third, the court
asked whether the fact that judges' salaries had not changed in the last 15 years; that since September 2018 they
earned less than prosecutors of equivalent rank; and that court presidents had the discretionary power to give
bonuses, was in line with judicial independence.145
The Prosecutor General exercised his right to initiate a review of the order for the preliminary reference before
the Hungarian Supreme Court (in Hungarian: Kúria).146 The Prosecutor General argued that the first question was
irrelevant, since the quality of translation did not come up in the case at hand, while the second and third questions
were not about the interpretation of EU law, were too remote and did not influence the outcome of the case. The
Prosecutor General therefore requested the Kúria to deem the reference unlawful.
In its judgment, the Kúria agreed with the Prosecutor General without reservation.147 In this type of procedure,
if the Kúria agrees with the motion, it determines that the challenged decision was illegal, without attaching any fur-
ther legal consequences to this finding.148 Technically the determination is incorporated into a “judgment”, however
its genre is rather an “opinion”, since it cannot halt the preliminary reference. But it does straightforwardly restrict
lower courts' right (and sometimes even obligation) to turn to the CJEU, since—so the judgment goes—the harmony
between Hungarian and EU law must not be subject to preliminary references. And due to the hierarchy of courts,
every single ordinary judge in Hungary must respect the Kúria's decision. When assessing judges, court presidents
must check whether judges comply with such judicial precedent.
But there is more: judges filing preliminary references with the Luxembourg court also risk disciplinary proceed-
ings as a result. The acting president of the Metropolitan Court, specifically because the reference for a preliminary
ruling had been rendered illegal by the Kúria, initiated a disciplinary proceeding against the judge referring the case
to the CJEU.149 Later, the action was withdrawn, allegedly for protecting the reputation of the judiciary.150 Still the
chilling effect here cannot be underestimated.
With regard to the declaration of illegality of the original preliminary reference and the disciplinary proceedings,
two more questions were added to the request for a preliminary ruling. Through the fourth question, the Hungarian
judge asked the Court of Justice to consider whether Article 267 TFEU precluded a court of last instance from
declaring a request for a preliminary ruling unlawful, whether such a decision was to be disregarded and what effect
such a declaratory decision had on the suspended criminal proceeding. Finally, the Hungarian judge also asked in a
fifth question whether the principle of judicial independence as enshrined in EU law meant that disciplinary proceed-
ings must not be brought against a judge for having made a request for a preliminary ruling.
The CJEU made some important statements regarding the quality of translation and interpretation in light of fair
trial rights answering the first question. However, regarding judicial independence, the CJEU declared questions two
and three on the health status of the Hungarian judiciary inadmissible, as had been requested by both the Hungarian

145

, ‘A Hungarian Judge Seeks Protection from the CJEU: Part I', (28 July 2019) VerfBlog, https://verfassungsblog.de/
For detailed analyses, see D.G. Szabo
a-hungarian-judge-seeks-protection-from-the-cjeu-part-i/; V. Vadász, ‘A Hungarian Judge Seeks Protection from the CJEU: Part II’, (7 August 2019)
VerfBlog, https://verfassungsblog.de/a-hungarian-judge-seeks-protection-from-the-cjeu-part-ii/.
146
} bb ügyészi jogorvoslati indítvány a kerületi bíro
Act XC of 2017, Art 666–669. Press release in original language can be accessed here: ‘Legfo
ság
végzésével szemben’, (19 July 2019) Magyarország Ügyészsége, http://ugyeszseg.hu/legfobb-ugyeszi-jogorvoslati-inditvany-a-keruleti-birosag-vegzesevel-
szemben/.
147
Judgment No. Bt.838/2019. Press release in original language is available at ‘A büntet}
oeljárás menetének megakasztása a jogszerű és alapos érdemi
}mozdítása érdekében történhet’, (11 September 2019) Kúria, https://kuria-birosag.hu/hu/sajto/buntetoeljaras-menetenek-
döntés meghozatalának elo
megakasztasa-jogszeru-es-alapos-erdemi-dontes-meghozatalanak.
148
Act XC of 2017, Art 669(3).
149
File number: 2019.Il.IV.K.15/2.
150
See in Hungarian: ‘Visszavonják a dr. Vasvári Csaba elleni fegyelmi eljárást’ (22 November 2019) Jogászvilág, https://jogaszvilag.hu/napi/visszavonjak-a-
dr-vasvari-csaba-elleni-fegyelmi-eljarast/.
BÁRD 21

government and the Commission. The Court recalled its case-law holding that a material connection has to be
present between the proceedings in front of the domestic court and EU law. If the Court responded to the more gen-
eral questions on judicial independence, its potential answers would not have assisted the referring court in solving
procedural questions of national law before ruling on the merits of the case.
In an ideal world a judge should never have been forced to ask general questions (questions 2 and 3) about a
Member State's EU law compliance, but such questions should have come from the Commission in the form of
infringement proceedings.151 Note that this is precisely what the Kúria had said—that the initial questions about judi-
cial independence posed by the referring judge were irrelevant to the case before him and so he was obligated to
carry on without getting an answer to those questions. Of course, the CJEU insisted that it alone could provide an
answer, but in doing so in this case, it supported the analysis of EU law made by the Kúria. In this regard, it may be
important to note that one of those questions was whether the Kúria itself, to which any ruling against the Hungar-
ian government in the underlying case decided by the referring judge could be appealed, was an independent court
after its president—who assigns cases to specific judges—was appointed in a patently political process. This urgent
question was deemed irrelevant to the decision of the referring judge in the present case.
Moving to questions 4 and 5 on declaring the reference illegal and the following disciplinary procedures, the
main concern for the CJEU was whether domestic courts could continue to refer cases to the CJEU. The integrity of
the preliminary reference mechanism is key for the European legal system, since it ensures uniform interpretation
and application of EU law.152 The CJEU reiterated that domestic courts have a wide discretion to exercise their
rights, and sometimes even an obligation to make use of the preliminary reference mechanism. In light of the CJEU's
earlier case-law, an appeal against a preliminary reference is per se not contrary to EU law, however the Kúria's con-
sideration in the specific case came very close to the determination of admissibility, which is an issue to be decided
by the CJEU exclusively. But the CJEU went further. Not only did the Kúria attempt to grab the powers of the CJEU,
but the finding of illegality was able ‘to weaken both the authority of the answers that the Court will provide to the
referring judge and the decision which he will give in the light of those answers’.153 The declaration might have a
chilling effect on judges in any future cases, where the judge might wish to avoid a challenge of illegality against a
decision to turn to the CJEU. As a result, the Kúria had restricted the effective judicial protection of the rights which
individuals enjoy as per EU law. In conclusion, the Kúria's illegality decision endangered the effectiveness of the
cooperation between courts at the various levels of EU governance.
As to the consequences of the above findings, the Court emphasised that domestic authorities must do every-
thing to ensure full compliance with EU law, and this obligation cannot be overwritten by any national norm, as dic-
tated by the principle of primacy. Accordingly, national courts must not apply any national law which undermines the
unity and effectiveness of EU law, and more particularly Judge Vasvári must disregard the Kúria's illegality decision
without waiting for any authority to withdraw or invalidate that decision.
The CJEU also had to decide on the disciplinary proceeding, started as a direct consequence of the illegality
decision of the Kúria. The Court distinguished the IS case from earlier case-law, on the ground that, in the current
case, the referring judge was faced with a procedural obstacle, arising from the application of a Hungarian piece of
law against him, which he must first address before he could make a decision as to whether to go on with the main
proceedings or not. The CJEU argued that this element made the IS case different from Miasto Łowicz. Therefore the
question was declared to be admissible.
Regarding the substance of the issue, the Court reiterated its earlier case-law, according to which launching dis-
ciplinary proceedings against a national judge for making a reference for a preliminary ruling contradicts EU law. The
disciplinary procedure does not even have to run its full course: ‘the mere prospect of being the subject of

151
This could already be read into Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, ECLI:EU:C:2018:117; M. Bonelli and
M. Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary: ECJ 27 February 2018, Case C-64/16, Associação
Sindical dos Juízes Portugueses’, (2018) 14 European Constitutional Law Review, 622, 636.
152
Opinion 2/13, Accession of the European Union to the ECHR, 2014 E.C.R. 2454, § 176; Case C-284/16, Achmea, 2018 E.C.R. 158, § 37.
153
IS, § 74.
22 BÁRD

disciplinary proceedings as a result of making such a reference, or deciding to maintain that reference after it was
made’, is undermining the effective use of Article 267 TFEU.154 Disciplinary proceedings targeting judges when mak-
ing use of the Article 267 TFEU mechanism have a deterrent effect on all national courts in the given country, which
endangers the mechanism itself and thereby the uniform application of EU law. Therefore, the CJEU held that EU
law under Article 267 TFEU precludes disciplinary proceedings from being brought against a judge on the ground
that they filed a request for a preliminary ruling to the CJEU.
This case is certainly peculiar in many respects. First, it is unusual that a judge would ask the Luxembourg court
whether he—as a member of a captured judiciary—is independent enough to pass a judgment. This is, in and of itself,
an extraordinary act of bravery. Second, it is highly unlikely that the court—or the attorney who initiated the suspen-
sion of the case—was indeed motivated by concerns regarding mutual recognition, as he claimed. What is more likely
is that the court was worried that procedural issues and court capture in the domestic setting would violate the individ-
ual rights of the person charged. But it is even more likely that the attorney and the national judge were concerned
about the dire state of human rights and the rule of law, especially the independence of the judiciary in Hungary in gen-
eral. If this is indeed the case, the preliminary reference was allegedly not the appropriate procedure to use. Rather, in
a first case scenario, the issue of judicial independence or that of an alleged judicial capture should have been
addressed by the Hungarian Constitutional Court. This institution, however, has been captured by the government
and today is not in the position to rule on a delicate matter involving judicial independence or separation of powers.155
A second case scenario would have consisted in European avenues discussed in section 2 to be explored to
address the challenges. Preliminary rulings are suboptimal in the struggle for judicial independence and are unlikely
to make up for the lack of infringement proceedings, or even Article 7 TEU or conditionality procedures. Beyond the
outcome in the IS case, the current situation still presents overarching threats to the independence of the Hungarian
judicial system. The CJEU decision did not nullify the Kúria's decision that references to the CJEU could be poten-
tially illegal. Each and every Hungarian court is therefore still obliged to follow the Kúria's ruling on illegality—at least
by the Kúria's account. The demand to disregard the Kúria's decision, although laudable, shows some naïveté or the
laissez-faire of the other EU institutions: even if Judge Vasvári boldly disregards the decision, it will still have a severe
effect leading to self-censorship on behalf of all other Hungarian judges. The CJEU is right, of course, in theory: in
line with the principle of primacy, national provisions, which prevent the implementation of Article 267 TFEU, ‘must
be set aside without the court concerned having to request or await the prior setting aside of that provision of
national law by legislative or other constitutional means’.156 This is indeed how EU law should work in countries
based on the rule of law, but it is far from clear how judges in a country with a poor rule of law record will react.
Compliance with the Court judgment is particularly unlikely in light of the immediate reaction of the Kúria to the
judgment delivered in IS. In a press release157 issued on the same day the IS judgment was delivered, the Kúria
emphasised—in clear conflict with the previously cited paragraph of the judgment—that its initial declaration of ille-
gality is still good law until the Kúria decides otherwise. The Kúria even took a victory lap by noting that the CJEU
had agreed with its judgment that the initial questions on judicial independence were irrelevant to deciding the crimi-
nal case and also pointed out that Hungarian courts must follow the Fundamental Law, paragraph E2, which requires
EU law to be followed only if it is ‘consistent with the fundamental rights and freedoms set out in the Fundamental
Law, and it must not be allowed to restrict Hungary's inalienable right of disposition relating to its territorial integrity,
population, political system and form of governance’.158

154
IS, § 90.
155
N. Chronowski, M. Varju, P. Bárd and G. Sulyok, ‘Hungary: Constitutional (R)evolution or Regression?’, in A. Albi and S. Bardutzky (eds.), National
Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law—National Reports (T.M.C. Asser Press, 2019), 1439; V. Kazai and Á.
Kovács, ‘The Last Days of the Independent Supreme Court of Hungary?’, (13 October 2020) VerfBlog, https://verfassungsblog.de/the-last-days-of-the-
independent-supreme-court-of-hungary/.
156
IS, § 80.
157
‘A Kúria közleménye az Eur

opai Uni

o Bír

osága C-564/19. számú ügyben hozott ítélete vonatkozásában’, (23 November 2021) Kúria, https://kuria-
birosag.hu/hu/sajto/kuria-kozlemenye-az-europai-unio-birosaga-c-56419-szamu-ugyben-hozott-itelete-vonatkozasaban.
158
Ibid.
BÁRD 23

The Kúria promised to study the IS judgment in light of the Hungarian Constitutional Court decision 2/2019
(III. 5.)159—a ruling which ‘created a legal basis for not complying with EU legislation (…) by using, actually abusing,
the concept of constitutional identity’.160 And we now know that the Kúria has no intention of retreating, in light of
the CJEU decision. In fact, the Kúria foresaw an assessment of the CJEU judgment in light of the Hungarian constitu-
tion at the same time as the Hungarian Constitutional Court was reviewing a motion161 filed by the Justice Minister
contending that implementation of another CJEU judgment—in the asylum law related Case C-808/18162—
contradicts the Fundamental Law.163 The decision rendered in that case by the Hungarian Constitutional Court did
not directly question the principle of primacy but opened several methods to overwrite EU law.164 In any case, until
the Kúria makes the promised assessment of the IS judgment, the illegality decision in the Kúria's view is ‘final, and
its interpretation of the law is binding’.165
Absent the rule of law premise in a Member State, the fundamentals of the dialogue between judges within the
EU are being perverted to the effect that, instead of playing the part of healthy checks and balances in a functioning
multilevel system, the traditional resistance of national courts to the (absolute) primacy of EU law is used as a
weapon to further dislocate the rule of law in the Member State in which the judiciary has been captured and cripple
the rule of law in the European Union as a whole through the weakening of the principle of EU law primacy. If that
principle has been resisted by some highest national courts in exceptional cases on fundamental rights and demo-
cratic grounds, it remains the backbone of the EU legal system. As pointed out by the CJEU some 60 years ago in its
Costa v. ENEL case166 and to paraphrase it, such attacks on the rule of law effectively ‘deprive (the EU legal system)
of its character as (Union) law’ and ‘call into question the legal basis of the (Union) itself’. There is simply no funda-
mental rights protection without the rule of law—the source of all rights. There is no democracy without the rule of
law—guardian of equality—despite the claims of the self-proclaimed “illiberal democracies”. To make exceptions, as
the CJEU still persists in doing with regard to European Arrest Warrants and the application of the principle of
mutual recognition, is to fundamentally misconceive the significance of the current rule of law crisis in some EU
Member States and the EU as a whole, in terms of its gravity and its foundational meaning for the EU legal system.
These cases, involving the harassment of judges read together with the Kúria's defiance against the IS judgment
in the context of the Hungarian government's and the Constitutional Court's resistance to primacy of EU law, lead to
the uncomfortable conclusion that the effects of ad hoc retaliations against Hungarian judges may be as devastating
as the more systemic attacks against judges that have been launched under the Polish muzzle law. However strongly
the CJEU formulates its stance on the importance of judicial cooperation, for CJEU judgments to be effective, the
targeted Member State must adhere to some very minimal elements of the rule of law and EU law, such as respect

159
Hungarian Constitutional Court Decision 2/2019 (III. 5.), in English available at the Court's website: http://hunconcourt.hu/uploads/sites/3/2019/03/2_
2019_en_final.pdf.
160
V.Z. Kazai and Á. Kovács, see n. 155. See also G. Halmai, ‘Abuse of Constitutional Identity: The Hungarian Constitutional Court on Interpretation of
Article E) (2) of the Fundamental Law’, (2018) 43 Review of Central and East European Law, 23.
161
XX-AFJO/92/…/2021. In original: http://public.mkab.hu/dev/dontesek.nsf/0/1dad915853cbc33ac1258709005bb1a1/$FILE/X_477_0_2021_ind%
C3%ADtv%C3%A1ny_anonim.pdf.
162
CJEU, C-808/18, Commission v Hungary (Accueil des demandeurs de protection internationale), ECLI: EU: C: 2020: 1029.
163
For another illustration of the fight of national judges to uphold the rule of law in relation to EU asylum law and showing that, should a judge still be
brave enough to turn to the CJEU in the future, declarations of illegality of their preliminary references and resulting disciplinary proceedings are not the
only adverse consequences they may face, the case of Judge Gabriella Szab
o is unfortunately quite exemplary. In August 2018, Judge Gabriella Szab
o
requested a preliminary ruling from the Court in order to check the compliance of the 2018 amendments to the Fundamental Law of Hungary and the Law
on the Right to Asylum, with Directive 2013/32/EU. In Case C-564/18, the Court had ruled that EU law was indeed breached. As a consequence of Judge
Szabo
's decision to file questions to the Court, Judge Péter Tatár-Kis, the Budapest Central Court president who initiated the disciplinary proceedings
against Judge Vasvári, declared Judge Szab

o to be unsuitable for a judicial office, and her appointment as a judge was therefore not finalised. (In Hungary,
judges first serve a kind of a probationary period before they are appointed as a judge for an indeterminate period. The Venice Commission criticised this
practice back in 2012, but the Hungarian government failed to follow the recommendations, and now it takes its toll.) All in all, the risks for any Hungarian
judge may be too high to follow the IS ruling and use Article 267 TFEU to its full potential.
164
Hungarian Constitutional Court Decision 32/2021. (XII. 20.), in English available at the Court's website: https://hunconcourt.hu/uploads/sites/3/2021/
12/x_477_2021_eng.pdf.
165
See n. 157.
166
ECJ, Flaminio Costa v E.N.E.L., 15 July 1964, ECLI:EU:C:1964:66.
24 BÁRD

for the CJEU's judgments. This is a major challenge, and without all the institutions including the Commission and
the other Member States playing their part in rule of law enforcement, ‘the CJEU alone cannot save us’.167

4 | C O N CL U S I O N

The present article has argued that the EU possesses a number of tools to address systemic and generalised rule of
law problems in the Member States, which are however not used to their full potential. We have shown the double
nature of the issue pertaining to rule of law as tempering power in the domestic and EU settings. Whereas some
Member States introduce abusive constitutionalism and abolish checks on governmental powers and the separation
of powers, the EU has its own issues with power, when it refuses to defend its own values out of fear of interfering
in domestic affairs and thereby acting ultra vires.
The issue is particularly critical in the domain of infringement proceedings.168 Even though infringement proce-
dures prove to be the most effective avenues with regard to the protection of judicial independence, which holds a
special position in the rule of law discussion, and for the sake of EU law, they are also chronically underused. Because
domestic courts have no other routes to take, they make attempts to protect other domestic courts and prevent the
rule of law decline spilling over to their legal systems in the form of preliminary references addressed to the CJEU.
An often voiced justification for the Commission's passivity is that the Commission cannot afford losing rule of
law related cases before the CJEU, so it must be absolutely certain it will succeed before launching a procedure: ‘We
want to win these cases. I cannot imagine that one day we will lose a case relating to the rule of law’—affirmed
European Commission Vice-President Vera Jourová.169 Technically, therefore, the Commission can only follow in the
shadow of CJEU case-law, which is not very promising regarding the use of preliminary ruling procedures when judi-
cial independence is attacked.
One may beg to differ regarding the Commission's utterly cautious stance, but following this logic, one would
expect the Commission to silently welcome any procedure—such as preliminary ruling procedures—in which it does
not risk losing face if the Court does not find a violation of judicial independence in the domestic setting. But it beg-
gars belief that the Commission, in addition to neglecting its duties as Guardian of the Treaties, makes it even worse
by not adopting a rule of law enhancing interpretation of admissibility issues. During the hearing of the IS case, the
European Commission, echoing the judgment in Miasto Łowicz, suggested that many of the questions referred were
inadmissible for not being necessary for the resolution of the original case. The representative of the Commission's
legal service added that ‘[t]he Commission continues to monitor the independence of the Hungarian courts and
raised concerns regarding the powers and functioning of the National Judicial Office’.170 This is a sadly ironic state-
ment, since the IS unusual preliminary reference was filed exactly because of the inaction of the various institutions,
and especially the Commission, which, instead of guarding the Treaties and imposing dissuasive sanctions on rule of
law violators, engages in more monitoring, benchmarking, discussion and dialogues which not only are inefficient in
preventing further backsliding but also field open for further violations, making them even more difficult to redress
in the future.
In a small number of cases, domestic courts refer questions to the CJEU about their peers' or their own indepen-
dence, in the hope that a determination by the CJEU of the laws that had been designed to limit their

167

czi: T. Drino
Paraphrasing Professor Tímea Drino
czi, ‘The EU Cannot Save Us: Why Poland and Hungary Need Resilience, Not Future-Oriented Reforms
of EU Enforcement Mechanisms’, (7 July 2021) VerfBlog, https://verfassungsblog.de/the-eu-cannot-save-us/.
168
C. Emmons and T. Pavone, ‘The Rhetoric of Inaction: Failing to Fail Forward in the EU's Rule of Law Crisis’, (2021) 28 Journal of European Public Policy,
1611; R.D. Kelemen, ‘The European Union's Authoritarian Equilibrium’, (2020) 27 Journal of European Public Policy, 481; E. Bakke and N. Sitter, ‘The EU's
Enfants Terribles: Democratic Backsliding in Central Europe since 2010’, (2020) Perspectives on Politics, 1; C. Closa, ‘The Politics of Guarding the Treaties:
Commission Scrutiny of Rule of Law Compliance’, (2019) 26 Journal of European Public Policy, 696.
169
RECONNECT Lecture with EU Commission Vice-President Věra Jourová: Towards a stronger EU, 2 February 2021, https://www.youtube.com/watch?
v=fR_fI4OvWB4, at 45:20.
170
Ibid.
BÁRD 25

independence—whether in the form of removing, disciplining judges, reducing their remuneration, or else—are con-
trary to EU law. Such preliminary rulings, to a limited extent, can contribute to upholding the rule of law, prevent pro-
liferation of the consequences of rule of law decline for the individual and make up for the failure to use adequate
tools by EU institutions against rule of law rot. The CJEU can only be praised for making it abundantly clear that the
harassment of judges and interference with the preliminary reference procedure are precluded by EU law. These
decisions should also be praised for finally integrating the concept of a chilling effect into the reasoning, as Laurent
Pech171 has suggested. Even though the Court did not use that exact term, it recognised in its most recent case-law,
with special regard to IS, that the shadow of a potential disciplinary proceeding may unduly influence judges to refer
cases in the first place, and therefore that such a shadow could lead to self-censorship on the side of the referring
judge and any other judge in the country, irrespective of the outcome of a disciplinary case, i.e. whether the disciplin-
ary procedure was ultimately suspended, or whether the judge was exonerated of liability or not. Similarly, a declara-
tion of illegality of a preliminary reference, even when no further consequences are attached to such a ruling, might
have the same chilling effect. Following up this line of argumentation, the CJEU could in the future acknowledge that
disciplinary proceedings come close to SLAPP suits (strategic litigation against participation)—that the EU plans to
fight forcefully172—in the sense that they are meritless and vexatious lawsuits against someone formulating a posi-
tion uncomfortable to a powerful party, in this case the government.173 The outcome of the case is less important;
the main aim of the procedure is to intimidate the accused and to discourage them and others in similar shoes from
expressing critical views.
One should also acknowledge that a reference to a “mere prospect” of disciplinary proceedings reflects a rule of
law friendly interpretation following a precautionary approach174 dismissing national measures, including disciplinary
proceedings, that are likely to have a chilling effect on the use of Article 267 TFEU proceedings or any EU law princi-
ple or value as being contrary to EU law.
But the case-law reviewed also proves that preliminary rulings cannot make up for the Commission's failure to
commence infringement procedures. The fact that judges are now fighting for their peers' independence shows that
some national judiciaries have been captured by the government, or their independence has significantly been vio-
lated, while the EU either remained silent during the long years when a toxic atmosphere within courts escalated—as
is the case with regard to Hungary—or acted too late and could not significantly slow down, let alone reverse, judicial
capture, as happened in Poland.
Not only the Commission's reluctance to launch the relevant procedures in time stands in the way of a dissua-
sive EU response to violations of judicial independence. There is a whole range of First Principles that the CJEU
strives to uphold, such as supremacy, direct effect, autonomy, mutual trust and recognition. These, along with core
principles such as national identity or constitutional diversity, have been used to legitimise passivity on the side of
the EU. The core of the problem is that the EU hides behind the veil of these principles insisting on procedural purity,
while seriously failing at applying the dictates of constitutionalism.175 By means of statements delivered obiter dicta,
the CJEU laid down important principles with regard to judicial independence, but it was unwilling to acknowledge
the systemic nature of judicial capture in some of the Member States. The unwillingness to attach more serious con-
sequences to rule of law backsliding and other gross violations of Article 2 TEU shows that the CJEU has its own

171
L. Pech, The Concept of Chilling Effect: Its Untapped Potential to Better Protect Democracy, the Rule of Law, and Fundamental Rights in the EU (Open Society
European Policy Institute, 2021), https://www.opensocietyfoundations.org/publications/the-concept-of-chilling-effect.
172
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of
the Regions on the European Democracy Action Plan, COM/2020/790 final.
173
P. Bárd, J. Bayer, N.C. Luk and L. Vosyliute (Coordinated by Sergio Carrera), Ad-Hoc Request SLAPP in the EU Context, EU-Citzen (Academic Network on
European Citizenship Rights, 29 May 2020), https://ec.europa.eu/info/sites/default/files/ad-hoc-literature-review-analysis-key-elements-slapp_en.pdf,
J. Bayer, P. Bárd, L. Vosyliute and N.C. Luk, Strategic Lawsuits against Public Participation (SLAPP) in the European Union: A Comparative Study (Academic
Network on European Citizenship Rights, 30 June 2021), https://ec.europa.eu/info/sites/default/files/slapp_comparative_study.pdf.
174
P. Bárd and A. Śledzi

nska-Simon, see n. 68.
175
D. Kochenov, ‘False Accountability, Elusive Rule of Law’, (11 September 2018) VerfBlog, https://verfassungsblog.de/false-accountability-elusive-rule-of-
law/.
26 BÁRD

fears about violating separation of powers and overstepping its mandate,176 or that the CJEU is unwilling to take up
the role of a European constitutional court.
Bringing the values back and interpreting EU laws and principles in their light would be essential for upholding
individual rights (a domain in which the EU claims to play a pioneering role) and for establishing credibility for the
EU's constitutional claims. Instead of insisting on EU principles at all costs, even at the cost of values, ‘the EU law
should embrace the rule of law as an institutional ideal.177 This implies, inter alia, eventual substantive limitations on
the acquis of the Union as well as taking Article 2 TEU values to heart in the context of the day-to-day functioning
of the Union, elevating the values above the instrumentalism marking them today.’178
But saving constitutionalism is not only the task of the judiciary. Responsibility should be distributed across the
various branches of powers, which ought to coordinate their actions promoting Article 2 TEU values and responding
to breaches thereof, in the form of sanctions and other dissuasive legal consequences. In addition, the various law-
making institutions must adjust or even suspend laws that they had adopted contrary to EU law principles such as
mutual recognition, which is based on mutual trust and the belief that all Member States share the same values—a
presumption clearly rebutted in some of the Member States. In other words, all EU powers must acknowledge that
the rule of law and other European values are just as much part of the EU's DNA as First Principles.179

How to cite this article: Bárd P. In courts we trust, or should we? Judicial independence as the precondition
for the effectiveness of EU law. Eur Law J. 2022;1‐26. doi:10.1111/eulj.12425

176
A. Rosas, ‘The European Court of Justice: Do All Roads Lead to Luxembourg?’, (2019) 3 CEPS Policy Insights, 1, https://www.ceps.eu/download/
publication/?id=10874&pdf=PI2019_03_AR_ECJ_0.pdf.
177
G. Palombella, È possibile la legalità globale? (Il Mulino, 2012).
178
D. Kochenov and P. Bárd, see n. 34, 245.
179
T.T. Koncewicz, see n. 26.