The Identity of the EU Legal Order as a “Shield” for Judicial Independence in the (Polish) Rule of Law Crisis

In its recent case law the CJEU stated that the values contained in Article 2 TEU define the “very identity of the European Union as a common legal order”. The CJEU made also some further important statements on the perception and the functioning of Article 2 TEU values in the European legal space. This working paper takes a closer look at how the CJEU has used the value of rule of law in Art. 2 TEU to build a “shield” that serves as a defense for national judges against interference with their independence. This “shield” has been created on the basis of the principle of effective judicial protection under Article 19 (1)(2) TEU and Article 47 EUCFR. Such a “shield” shield is particularly useful in those EU Member States where material threats to the rule of law emerged, such as Poland. It benefits from the strong possibilities of the EU supranational legal system, i.e. the principle of direct effect and the principle of primacy. However, such a “shield” has also its limits, restrictions, and weak points. These are primarily due, on the one hand, to the procedural limitations of the preliminary ruling procedure, which is the main interface of cooperation between the national courts and the CJEU, and, on the other hand, to the fact that, ultimately, EU law must be effectively implemented and adopted into the national legal order by national authorities. However, during an ongoing rule of law crisis, not all state authorities will always be interested in correctly and effectively implementing European standards.