CEU Electronic Theses and Dissertations, 2021
| Author | Reymann, Maximilian |
|---|---|
| Title | Judicial Defense: The Mobilization of the Rule of Law by Member State Courts following ASJP |
| Summary | The recent case-law of the Court of Justice of the EU, starting with the 2018 Portuguese Judges case, has signaled a near revolutionary shift in the role that the value of the rule of law under Art. 2 TEU has in the EU legal order. By operationalizing those values through more concrete provisions, such as Article 19 TEU and Article 47 CFR, the Court has opened up the possibility for the review of provisions relating to the national judicial organization, in light of EU law. By operationalizing the rule of law in the EU legal order, the Court has created the ground upon several judicial dynamics have developed. Besides the continued importance of the Commission in this “Rule of Law Debate”, Member State courts and judiciaries have increasingly become involved. It is precisely these dynamics, which have unfolded through the preliminary reference procedure, that this thesis identifies and defines. Increasingly, one can see Member State courts engaging in judicial self-defense, by attempting to challenge either national legislation concerning the judiciary, or the independence of courts in the judiciary. Further, Member States are beginning to engage in horizontal policing, where the compliance of courts or the legal system of one Member State is challenged by another Member State’s courts. These developments empower Member State judiciaries, which are under threat by legislatures or executives, to rely on EU law and especially Art. 2 TEU, as a last shield in their defense against being captured. Further, more critically, these developments substantially increase the power of the CJEU, and raise pertinent questions on how this new case-law can be limited, so as to guarantee its effectiveness, while shielding it from abuse. Further, this thesis highlights how these developments shape the meaning of the rule of law within the legal order and how dynamics originating in the Member States can have a profound impact on EU law itself. Finally, it raises questions as to the possible future applicability of the rule of law to the EU itself, as an increasingly utilized and well-defined concept of the rule of law should be applicable at all levels of a legal system. |
| Supervisor | Granger, Marie-Pierre |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2021/reymann_maximilian.pdf |
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