Judges Assessing the Independence of Judges. Historical Foundations and Practical Procedures in Facing the Threats against the Rule of Law in Europe

The existence of impartial and independent courts is a cornerstone of the success of the European project. The recent renaissance of “illiberal States” jeopardises the application of the rule of law and risks destroying the foundations of the EU legal order. In 2018, the Court of Justice of the European Union (CJEU) began developing two new lines of case-law. Firstly, the CJEU found itself to be competent to rule on matters regarding the independence of the judiciary, which used to be part of the purely internal competence of the Member States. Secondly, the CJEU empowered national courts to perform a “rule-of-law check” of courts in other Member States by assessing the independence and impartiality of judicial authorities having issued a European Arrest Warrant (EAW). This represents a new task for what are often courts of first instance.

The impartiality and independence of judges is a cornerstone of the rule of law and the “Rechtsstaat” and of the right to a fair trial according to Article 6 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union (CFR). This article provides a theoretical basis for the understanding of the principles of the rule of law and the Rechtsstaat, in the form of Kaarlo Tuori’s theory about the layers of the law. Further, it provides a summary of developments as regards the rule of law in Europe in recent years – especially as regards the two new lines of case-law of the CJEU – as well as summaries of the articles included in this issue of the «Journal of Constitutional History» that form part of the project «Judges Assessing the Independence of Judges. Historical Foundations and Practical Procedures in Facing the Threats against the Rule of Law in Europe».