The substantive requirements of judicial independence in the EU : lessons from times of crisis

Abstract

In 2018, it was clarified that, “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.” This statement by the Court of Justice (ECJ) in Associação Sindical dos Juízes Portugueses (ASJP) represented an important clarification in respect to the possibility of protecting the independence of the EU judiciary under EU law, which falls under the principle of effective judicial protection. This was perhaps the most consequential development in the Court’s judicial independence-related case law to date, in which the Court, “establishe[d] a general obligation for Member States to guarantee and respect the independence of their national courts and tribunals” via their interpretation of Article 19(1) of the Treaty on European Union second subparagraph.