The Rule of the Courts

The Role of the Courts in the Protection of the Rule of Law and of Fundamental Rights

II. The rule of law and the structure of the judicial system of the European Union If in a Member State of the European Union, an authoritarian-leaning government with a parliamentary majority attempts to dismantle the rule of law by impairing the independence and the impartiality of the judiciary, it threatens the rule of law in the entire European Union. 2 The judicial systems of the EU and its Member States are closely connected which leads to a close interdependence of the judicial systems of the Member States themselves. Therefore, a threat to the rule of law in one Member State can have an impact on the others. As the European Court of Justice has pointed out on several occasions, the constitutional order of the European Union is chiefly based on mutual trust. 3 This principle, which article 4 TEU presupposes and substantiates, governs the relationship between the legal orders of the Member States and between their respective judicial systems. It requires that each and every Member State abides by the fundamental principles and objectives of the European Union and implements them in its domestic system in an adequate and comparable manner. According to Art. 2 TEU, not only the fundamental rights of the individuals, but also the rule of law is one of the core building blocks of the European Union. 4 It is a fundamental legal principle with binding effect for all the Member States of the European Union and obliges them to design their domestic legal systems accordingly. Their commitment to the rule of law is indispensable for the functioning of the Union and the legal interaction between the Member States. In particular, the guarantee of an effective fundamental rights protection and the safeguard of the rule of law are inextricably linked to the common system of legal protection via article 19 para. 1 TEU and the preliminary ruling procedure in article 267 TFEU. Similarly, an administrative 2 See Vial , in: Les droits de l’homme à la croisée des droits. Mélanges en l’honneur de Frédéric Sudre, 2018, 823; Rossi , RTDEur 2020, 639. 3 CJEU, 18 December 2014, Opinion 2/13 – European Convention on Human Rights no. 2; 6 March 2018, Case C-284/16 – Achmea; 25 July 2018, Case C-216/18 PPU – LM. 4 Cf., e.g., Rossi , RTDEur 2020, 639.

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