Since the 2018 Juízes Portugueses judgment, the European Court of Justice (ECJ) has developed a line of case law based on Article 2 of the Treaty on European Union (TEU) in conjunction with Article 19(1)(2) TEU. These two Articles list the values on which the EU is founded and describe the task and structure of European jurisdiction and the ECJ’s obligation to uphold the law within the framework of the Union Treaties. This new approach, identified as value-operationalizing, enables the ECJ to derive requirements for the independence of national judges from Article 2 TEU in conjunction with Article 19 TEU. The value of the rule of law in Article 2 TEU is thus ‘brought to life’ or ‘operationalized’ in the context of Article 19 TEU. Specific commitments under EU law for the national court organization, a core area of Member States’ competence, now arisen from the value clause of Article 2 TEU. It has been claimed that the ECJ has become the saviour of the rule of law in Member States such as Poland and Hungary.
This article aims to investigate the following paradox lying within this case law: the ECJ is attempting to save national judicial independence, yet in doing so it is arguably exceeding its own mandate and acting ultra vires. Thus, paradoxically, the ECJ is encroaching on Member States’ judicial autonomy and undermining its own judicial authority. The article assesses why the wording, systematics and fundamental principles of EU law are violated, using doctrinal analysis and an evaluation of the ECJ’s value-operationalizing case law from the perspective of ultra vires theory. It concludes that establishing common values should be a joint effort. Therefore, the ECJ should not be a quasi-legislator; it should cooperate with national constitutional courts in a reverse preliminary ruling procedure.
European Public Law