Defending Judicial Independence in Court: A Subjective Right to Independence in EU Law

Abstract Judicial independence is essential for ensuring effective judicial protection in each Member State, and becomes an EU-wide concern primarily due to the principle of mutual trust which presumes functional equivalence between Member States as regards their respective legal systems in general and the safeguarding of fundamental rights in particular. As a principle of EU law, it is for the CJEU to determine the contours of judicial independence. National judges as a category of persons have a unique role in furthering EU integration thanks to the principles of direct effect and supremacy of EU law as well as the dialogue with the CJEU in Art. 267 TFEU. This in turn exposes them to greater threats from the executive and legislature when the rule of law is undermined. For these reasons, this paper discusses the rationale and mechanisms for recognising a subjective right of judges to their independence, adding a further tool for guaranteeing the rule of law.