Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM
| Author | Petra Bárd,Wouter van Ballegooij |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1177/2032284418801569 |
| Subject Matter | Articles |
Article
Judicial independence as a
precondition for mutual trust?
The CJEU in Minister for Justice
and Equality v. LM
Petra B´
ard
Eo
¨tvo
¨s Lor´
and University, Hungary
Wouter van Ballegooij
European Parliamentary Research Service, European Parliament, Belgium
Abstract
This article discusses the relationship between judicial independence and intra-European Union
(EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on
the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and
Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule
of law problem. This implies that executing judicial authorities should freeze judicial cooperation in
the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a
measure should stay in place until the matter is resolved in accordance with the procedure
provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member
State compliance with democracy, the rule of law and fundamental rights. The Court, however,
constructed the case as a possible violation of the right to a fair trial, the essence of which includes
the requirement that tribunals are independent and impartial. This latter aspect could be seen as a
positive step forward in the sense that the judicial test developed in the Aranyosi case now includes
rule of law considerations with regard to judicial independence. However, the practical hurdles
imposed by the Court on the defence in terms of proving such violations and on judicial authorities
to accept them in individual cases might amount to two steps back in upholding the rule of law
within the EU.
Keywords
European Arrest Warrant, democr acy, rule of law, fundamental rights , judicial independence,
mutual recognition, mutual trust, primacy of EU law
Corresponding author:
Petra B´
ard, Eo
¨tvo
¨s Lor´
and University, Faculty of Law, Egyetem t´
er 1-3., Budapest 1053, Hungary.
E-mail: petra.bard@ajk.elte.hu
New Journal of European Criminal Law
2018, Vol. 9(3) 353–365
ªThe Author(s) 2018
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DOI: 10.1177/2032284418801569
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