From Portugal to Poland: The Court of Justice of the European Union as watchdog of judicial independence
| Author | Aida Torres Pérez |
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| DOI | http://doi.org/10.1177/1023263X19892185 |
| Subject Matter | Articles |
Article
From Portugal to Poland:
The Court of Justice of the
European Union as watchdog
of judicial independence
Aida Torres P´
erez*
Abstract
In Associac¸a
˜o Sindical dos Ju´
ızes Portugueses, the CJEU seized the occasion to uphold the
principle of judicial independence as a primary obligation for the Member States under the
second subparagraph of Article 19(1) TEU. This newly crafted interpretation of Article 19(1)
has crystallized in Commission v. Poland, in which the CJEU declared that the reform of the
Polish law on the Supreme Court lowering the retirement age of judges breached the obli-
gation to respect judicial independence. The goal of this piece is to assess the bold inter-
pretation given to the second subparagraph of Article 19(1) as a building block of the EU’s
constitutional order. First, the expansion of the substantive content of Article 19(1) TEU will
be analysed. How did the CJEU justify the shift from an obligation to establish a system of
remedies ensuring effective judicial review to an obligation of respect for judicial indepen-
dence? Second, the scope of this obligation and its potential reach will be critically examined.
I will argue that Article 19(1) TEU may actually trigger the application of the Charter.
Eventually, Article 19(1) TEU has the potential to become an open door for enforcing the
Charter against the States regardless of its limited scope of application.
Keywords
Judicial independence, Court of Justice of the European Union, rule of law, Charter of Fundamental
Rights of the EU, effective judicial protection
* Associate Professor of Constitutional Law, Pompeu Fabra University, Barcelona, Spain
The manuscript for publication was submitted on 12 October 2019.
Corresponding author:
Aida Torres P´
erez, Pompeu Fabra University, Carrer de Ramon Trias Fargas, 25-27, 08005 Barcelona, Spain.
E-mail: aida.torres@upf.edu
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(1) 105–119
ªThe Author(s) 2020
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DOI: 10.1177/1023263X19892185
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