The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

Abstract The preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.

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Publication Details

Journal
Hague Journal on the Rule of Law
Published
2024-08-19
DOI
https://doi.org/10.1007/s40803-024-00243-2
Primary Topic
European and International Law Studies
Type
article
Field-Weighted Citation Impact
0.00

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article

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

Beatrice Monciunskaite
Hague Journal on the Rule of Law
European and International Law Studies
article

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

Beatrice Monciunskaite
article en

Abstract

Abstract The preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.

Hague Journal on the Rule of LawVol. 17(1)
Dublin City University (IE)
Irish Research eLibrary, Dublin City University
Reduced inequalities
Openalex Percentile: Top 79%
European and International Law Studies
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