Maintaining the Court of Justice of the European Union's Legitimacy and Upholding the Rule of Law – an Uneven Equation?

Abstract: The dismantling of the rule of law in a number of Member States of the EU continues. Recently, the Court of Justice has become the centre of attention of the rule of law crisis, due to the pending case C-619/18 Commission v Poland, concerning the independence of the judiciary in Poland. The Advocate General found in his Opinion to the case that the Polish law that lowered the retirement age of the Polish Supreme Court judges was in violation of EU law. The Polish case, and other similar cases concerning judicial review, raise questions about the role of the Court of Justice in upholding the rule of law in the EU and the Court’s legitimacy. In this thesis, the legitimacy of the Court of Justice is explored, in relation to the Court’s recent case law on judicial review and the rule of law. The thesis examines the EU’s general understanding of the rule of law and its relation to judicial review. It finds that the EU relies on a broad definition of the rule of law and that a number of principles can be said to form part of EU rule of law. As for the relationship between judicial review and rule of law, they have been closely intertwined for a long time in the EU legal order. Furthermore, the thesis thoroughly examines the central provisions related to judicial review and finds that Article 47 of the Charter of Fundamental Rights gives substance to the judicial review provision in Article 19 TEU, by containing the right to an effective remedy, a fair hearing and an independent judiciary. In the Case C-64/16 Portuguese judges, the Court of Justice held that the principle of judicial independence was not dependent upon whether the Charter is applicable, because the principle is part of Article 19 TEU. This established link is analysed in the thesis, and it is concluded that it was a legitimate step of the Court of Justice to take, despite the political timing of the case. In light of this, it is predicted that the Court’s judgment in the mentioned Commission v Poland case will be in line with the Advocate General’s Opinion, due to the recently developed line of cases.