Abstract
The rule of law in the European Union rests on a precarious decentralised judicial architecture with the two pillars of the judicatures of the EU and of the Member States. Judicial protection emerges as the meta-norm for the governance of this complex governance scheme. It re-orientates the entire EU judicial architecture towards protecting individual rights grounded in EU law. The article makes three supporting arguments: First, the norm of judicial protection has become institutionalised in law, through the Charter of Fundamental Rights, the Treaty on European Union and relating jurisprudence of the Court of Justice of the European Union (the Court). Further, as judicial protection becomes a meta-norm, capable of overriding even conflicting primary EU law that would preserve the discretion of the political EU institutions or the procedural autonomy of the Member States. Finally, by reference to the norm of judicial protection, the Court’s doctrine has been shaping a single code of procedure that welds the entire twin-pillared EU judicial architecture into a coherent whole. The article documents this single code of procedure for a horizontal dimension of the Court of Justice of the EU and a vertical dimension of the Member States courts. The implications of this rise of judicial protection to meta-norm applies to a wide variety of debates on the judicial architecture, ranging from a EU federal question jurisdiction of Member States courts, enforcement of the independence of the judiciary in the sovereign Member States, to the integration of international and third-country courts. The article concludes that the ultimate legitimacy of European integration depends on rights being taken seriously through their guaranteed judicial protection.
Highlights
The Rule of Law in the European Union hinges on its judicial architecture
The legal basis of judicial protection had remained unclear, though. It could be the rule of law or fundamental rights grounded in a general principle of EU law derived from the European Convention of Human Rights and comparative constitutional law
Judicial protection becomes the meta-norm for the EU judicial architecture, reorientating it towards protecting individual rights guaranteed in EU law, against contestation either from the European Union or the Member States, with the far-reaching consequences documented earlier in this article
Summary
The Rule of Law in the European Union hinges on its judicial architecture. The Lisbon Treaty has left unchanged the design, by the Founding Treaties, of a decentralised judicial architecture for the European Union that rests on two pillars, the judicature of the European Union and the judicatures of the Member States. Both are organizationally independent. This article argues that since the entry into force of the Lisbon Treaty, that architecture has become much more centralised Driving this transformation is the judicial protection that individuals ought to receive for their rights under EU law.. The article further argues that judicial protection drives the development of what will be labelled a single code of procedure This code is not a single codification but rests on several normative layers, combining the primary law of the Charter and TEU and the relating jurisprudence of the Court with applicable EU legislation and compatible national legislation. Judicial protection enlists the judiciaries of the European Union and the Member States to counter challenges to these rights, first procedurally and substantively The article applies this framework to the jurisprudence of the Court that has shaped the EU judicial architecture after the entry into force of the Lisbon Treaty.. The present discussion will tease out the common theme of judicial protection that identifies and explains the choices that the Court has made in the transformation of the EU judicial architecture
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