Teisė ISSN 1392-1274 eISSN 2424-6050

2024, Vol. 131, pp. 23–43 DOI: https://doi.org/10.15388/Teise.2024.131.2

The European Union as a Community of Values: the Importance of the Dialogue between the Court of Justice of the European Union and National Courts*

Irmantas Jarukaitis
Judge at the Court of Justice of the European Union
Court of Justice of the European Union
L-2925 Luxembourg
Doctor of Social Sciences
Professor at the Department of Public Law
Faculty of Law, Vilnius University
E-mail: Irmantas.Jarukaitis@curia.europa.eu

The European Union as a Community of Values: the Importance of the Dialogue between the Court of Justice of the European Union and National Courts

Irmantas Jarukaitis
Court of Justice of the EU (Luxembourg), Vilnius University (Lithuania)

Summary. The article deals with the gradual development of the EU as a community of values and the role of the CJEU and national courts in upholding and developing these values. The analysis of judicial practice reveals the crucial role performed by national courts and the CJEU in protecting the fundamental rights and the principle of the rule of law both at the EU and national levels. On the one hand, „upstream“, national courts act as guardians of the fundamental values at the EU level by referring questions to the CJEU concerning the interpretation of the Charter and the legality of the secondary EU legislation vis-à-vis the Charter, thus contributing to the functioning of a decentralised constitutional control of EU legislation and stabilising the EU level of governance. On the other hand, “downstream”, recent developments of the CJEU jurisprudence interpreting Article 19 of the Treaty on the European Union confirm the thesis that the CJEU treats national courts as European courts that are cornerstones of the decentralised EU judicial system. The CJEU practice shows that differently from Article 47 of the Charter, Article 19 of the TEU is perceived not as providing protection of individual rights but rather as a systemic and permanent guarantee of judicial independence as a part of a fundamental value of the Union, thus aiming at stabilisation of national judicial systems and assuring the effectiveness of protection of the rights stemming from EU law at the national level.
Keywords: The EU as a community of values; protection of fundamental rights; EU Charter of Fundamental Rights; cooperation between the CJEU and national courts; preliminary ruling procedure; Article 19(1), second subparagraph, TEU; principle of the rule of law; principle of the independence of the judiciary.

Europos Sąjunga kaip vertybinė bendruomenė: Europos Sąjungos Teisingumo Teismo ir nacionalinių teismų dialogo svarba

Irmantas Jarukaitis
(Europos Sąjungos Teisingumo Teismas (Liuksemburgas)), Vilniaus universitetas (Lietuva))

Santrauka. Straipsnyje analizuojama laipsniška Europos Sąjungos, kaip vertybinės bendruomenės, plėtra ir Europos Sąjungos Teisingumo Teismo (ESTT) bei nacionalinių teismų vaidmuo ginant ir plėtojant šias vertybes. Teismų praktikos analizė atskleidžia lemiamą nacionalinių teismų ir ESTT vaidmenį ginant pagrindines teises ir teisės viršenybės principą ir ES, ir nacionaliniu lygmenimis. Viena vertus, nacionaliniai teismai veikia kaip pagrindinių vertybių sergėtojai ES lygmeniu, pateikdami ESTT klausimus dėl Chartijos aiškinimo ir ES antrinės teisės aktų teisėtumo Chartijos atžvilgiu, taip prisidėdami prie decentralizuotos konstitucinės ES teisės aktų kontrolės funkcionavimo ir ES valdymo lygmens stabilizavimo. Kita vertus, naujausi ESTT jurisprudencijos pavyzdžiai, aiškinantys Europos Sąjungos sutarties 19 straipsnį, patvirtina tezę, kad ESTT nacionalinius teismus traktuoja kaip ES teismus, kurie yra kertiniai decentralizuotos ES teismų sistemos akmenys. ESTT praktika rodo, kad ES sutarties 19 straipsnis, skirtingai nei Chartijos 47 straipsnis, suvokiamas ne tiek kaip užtikrinantis pavienio asmens teisių apsaugą, o, būdamas pamatinės Sąjungos vertybės dalis, kaip sisteminė ir nuolatinė teismų nepriklausomumo garantija, taip siekiant stabilizuoti nacionalines teismų sistemas ir užtikrinti veiksmingą iš ES teisės kylančių teisių apsaugą nacionaliniu lygmeniu.
Pagrindiniai žodžiai: ES kaip vertybinė bendruomenė; pagrindinių teisių apsauga; ES pagrindinių teisių chartija; ESTT ir nacionalinių teismų bendradarbiavimas; prejudicinio sprendimo procedūra; ES sutarties 19 straipsnio 1 dalies antra pastraipa; teisės viršenybės principas; teismų nepriklausomumo principas.

_______

* This article does not reflect the view of the Court of Justice of the European Union or the Judges.

Received: 19/04/2024. Accepted: 29/04/2024
Copyright © 2024 Irmantas Jarukaitis. Published by Vilnius University Press
This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.

Introduction

There was a good reason for the press to refer to the accession of the ten Central and Eastern European countries to the European Union (hereinafter the EU) on 1 May 2004 as to the Big Bang enlargement. Historically, this was the largest enlargement of the EU in terms of its geographical scope and the number of countries that joined the Union. What is more important, it essentially marked the end of the division of the European continent that had occurred after the Second World War; in addition, it was the logical finale of the fall of the Berlin Wall. The sense of euphoria palpable at the time was genuine and completely understandable: the countries that had been in the grip of the Soviet empire for half a century were returning to the values of the European civilisation and becoming part of a united Europe. Thus, this enlargement closed the former page and at the same time opened a new page of one of the most important chapters in the history of Europe in the 20th century. The scale of the transformation in the new member states was universal and unique; it was reflected in the Copenhagen criteria which required the then-acceding countries to return to the traditions of liberal democracy, to build efficient free-market economies, and to undertake significant legal reforms in implementing EU law. Besides, the accession process was challenging in the sense that the EU, which they were joining, was a kind of a moving target as the EU itself was undergoing significant changes in the scope and nature of its powers. Having applied for EU membership with the Maastricht Treaty in force, these countries joined the Union when the Nice Treaty was already in force. In fact, the ratification of the Treaty establishing a Constitution for Europe, drafted by the European Convention, was on the agenda of the Member States at the date of the new members joining the EU. From what is stated below, we shall see that this evolution is interesting in the sense that the European Communities, and later the EU, have over time increasingly outgrown their original economic mantle and the Treaty of Lisbon in 2009 presented the EU as a fully-fledged community of values.

Needless to say, both the old and the new EU Member States then had some anxiety about how living together would work. A cursory glance at the negotiations would suggest that they tended to focus more on developments in specific sectors of economic and social activity; i.e. there was no separate negotiating chapter1 on the ‘protection of fundamental rights’ or the ‘rule of law’, although the reading of the European Commission’s opinions on the candidate countries’ applications for accession and of the annual progress reports on accession to the EU shows that the Commission always included in its assessment of the candidate countries their conformity with the Copenhagen political criteria, including compliance with the principles of democracy, the rule of law and respect for fundamental rights. However, the overall analysis of this criterion was visually overshadowed by a detailed assessment of the capacity to assume the obligations arising from the membership in specific negotiating chapters.2 It is interesting to note in retrospect that at the time it was the economic issues that were more of a concern than the questions related to the values of the EU. Some of those fears were reflected in the transitional periods mutually obtained by both negotiating parties. In popular terms, the old Member States had a fear of what was then called the Polish plumber (a fear which may be said to have contributed, for example, to the originating of the notion of “social dumping” in the case-law of the Court of Justice of the European Union (hereinafter, the CJEU, the Court); whereas the new Member States had a fear, among other things, of the rich Westerners coming in and buying up all the agricultural land for a derisory price. Time has proved that such fears were unfounded, as the economic and social convergence of the EU has been in principle successful; the economies of the new Member States have proved sufficiently competitive to withstand the pressures of the Internal Market with their Gross Domestic Product (GDP) and standard of living approaching or even exceeding the EU average, besides, a significant number of these countries have become part of the Euro zone.

However, after the honeymoon period came to an end, certain value-based divides have slowly begun to emerge in relation to the EU founding principles, exacerbated by the tectonic crises that have been endlessly unfolding in recent times, such as the financial crisis in 2007–2008, the migration crisis in 2015, the COVID pandemic, and the military aggression of Russia against Ukraine. In addition, one should not forget about the systemic challenges to the rule of law that have emerged in some EU countries. These crises act as both centrifugal and centripetal forces in the EU. On the one hand, they encourage the European Union and its Member States to join forces to find common solutions at EU level in order to counter systemic threats. On the other hand, they inevitably highlight disagreements on how, to what extent and by what means to tackle the above-mentioned threats. What is more, doubts about the effectiveness of responses to these crises lead to dissatisfaction with the EU policies and have a serious impact on Member States’ domestic political agendas. All of these aspects to a variable extent are intertwined and fundamentally linked to the intensity of solidarity at EU level as well as to the balance of power between the EU and national level. At the same time, the emerging challenges have an inevitable impact on the fundamental values on which the EU and its Member States are founded, in particular, an effective protection of fundamental rights as well as the principle of the rule of law. Although the search for responses to the emerging challenges is primarily a field of debate and action for the EU and national political institutions, once decisions are (or are not) taken, part of the debate inevitably shifts to the EU and national courts who are confronted with these issues when interpreting and applying EU law. As will be seen below, the EU and its Member States share a systemic commonality in terms of values, i.e. they are based on the same fundamental values. The EU is also founded on the idea that powers of public authority are disaggregated into different levels so that, among other things, these different levels were able to exercise at least some degree of control over each other in order to ensure that these fundamental values are effectively protected. The EU history has shown that the dialogue between the CJEU and national courts is a perfect reflection of this idea. Indeed, the time has confirmed the importance of national courts and their contribution to the development of the idea and standards of protection of fundamental rights at the EU and national level. In addition, the systemic problems that have arisen in some EU countries concerning the respect for the rule of law and the experiments with the so-called illiberal democracy that have begun to emerge over the past few years have highlighted the importance and the potential (as well as the limits of this potential) of EU law in the defence of fundamental values by national courts at the national level. In both cases, the dialogue between the CJEU and the national courts is crucial; it is naturally the national courts that are most often confronted with issues of the application of EU law at the national level. Thus, by identifying problems and raising relevant questions on interpretation or legality of EU law, they bring the dispute to the EU level where the CJEU is in a good position to reflect on the problems and to provide a universal solution for the entire EU. On the other hand, in such a setup, the importance of independence of national judiciary is obvious, since only independent courts are able to effectively protect these fundamental values.

Thus, the object of the research is developments of EU primary law, which gradually reveals the value-based nature of the European Union and the role of the dialogue between the CJEU and national courts in upholding fundamental values of the EU, including judicial independence.

The aim of the research is to reveal and evaluate the changes of the EU primary law shifting the focus from the initial economic mantle of the European Communities to the value-based nature of the European Union and the role of the dialogue between the CJEU and national courts in protecting and developing the EU fundamental values.

The tasks of the research is to reveal the gradual development of EU as a Union of values; to explore the contribution of the CJEU and national courts in upholding and developing fundamental EU values through their dialogue both at the EU and national levels.

This article will, therefore, first discuss the value-based nature of the EU reflected in the primary EU law as amended by the Lisbon Treaty in 2009. The second part of the article, in turn, will analyse concrete examples of the dialogue between the CJEU and the national judiciaries revealing its potential to defend and develop the fundamental values of the EU, including the importance of the protection of the independence of national judiciary as essential prerequisite of this dialogue.

Numerous studies have been undertaken in this field, making it too complicated to mention even a portion of them. However, last several years have witnessed the immense growth of the jurisprudence of the CJEU related to protection of fundamental rights both at the EU and national levels, thus, these developments merit a reflection providing for an overall picture in this field.

The undertaken research is based on historical, systemic, and critical methods of analysis. Historical method is used to evaluate the developments of EU primary law, while systemic and critical analysis methods are significant in assessing the developments and dynamics of the dialogue between the CJEU and national courts in the field of protection of the EU fundamental values.

1. From the Economic Communities to the European Union as a Union of Values

One may have ambivalent feelings when looking back at the original Treaties of the European Coal and Steel Community (ECSC) of 1952 and the European Economic Community (EEC) of 1957. On the one hand, the preambles of these Treaties refer to the fundamental objective of European integration, i.e., ensuring peace in Europe and cohesion among its peoples, which was the value-based3 starting point of the integration process. On the other hand, however, the provisions of these Treaties are rather technical and “boring” in the sense that they essentially refer only to a gradual economic integration while the afore-mentioned value-based aspect is largely absent, i.e. they do not mention the deeper objectives of the integration process, the principle of solidarity, the principle of respect for fundamental rights, etc.4 Certainly, when reading these Treaties, one should not forget the context of the time. Although the ambitions for European political integration were high at the time, they had to face the reality: the treaties on the European Political Community and the European Military Community, which had been drawn up, were not ratified for political reasons. Thus, Schuman’s words that Europe could not be created overnight or according to a single plan came true. It was necessary to wait another 40 years to have the explicit expression of a political community, i.e., the European Union established by the Maastricht Treaty in 1992. The Preamble of the Maastricht Treaty declares the importance of the principles of liberty, democracy, the rule of law, and respect for human rights, and Article F (2) of the Treaty states succinctly that the European Union shall respect the fundamental rights guaranteed by the European Convention on Human Rights (ECHR) and stemming from the constitutional traditions common to the Member States. This brief reference in the EU primary law was rather misleading, as back then the CJEU had already developed a vast case law on the protection of fundamental rights, at least partly inspired by national courts (See, for example: Jarukaitis, 2011, p. 373-393). The Lisbon Treaty, which entered into force in 2009, was a qualitatively new step whereby the European Union presented itself as a community of values (See, for example: Jarukaitis, 2009, p. 55-74). An assessment of the provisions of this Treaty suggests that the EU no longer sees itself as a forum for economic cooperation but rather as a fully-fledged political community with a deep background of values and a clear identity5. In particular, Article 3(1) of the TEU explicitly identifies the EU objective of promoting peace, its own values, and the well-being of its peoples; Article 2 identifies the EU-specific fundamental values6, and Article 6(1) of the TEU makes the EU Charter of Fundamental Rights binding on both the EU and its Member States and gives it the status of the primary EU law. In addition, Article 49 of the TEU explicitly links a State’s aspiration to become an EU Member State to its respect for and commitment to the values enshrined in Article 2 of the TEU.7 What is more, Article 21 of the TEU specifies, inter alia, that the EU action on the international stage shall be based on the above-mentioned values, and emphasises that the EU common foreign policy shall seek to, inter alia, uphold its own values. It should be noted that the recent case law of the CJEU also emphasises the value-based identity of the EU as well as the binding nature and interrelationship of the general principles of law that elaborate on the EU’s fundamental values. In this respect, judgments of the Full Court in cases Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21) of 16 February 2022 are of great importance.8 The main issue in the above-mentioned cases was the relationship between the principle of the rule of law and the principle of solidarity, which serves as the basis for the EU budget, and, more specifically, the question of whether the so-called Conditionality Regulation which makes payments to a Member State from the EU budget conditional on respect for the rule of law, may be considered to be a “financial rule”. The insights of the CJEU into the very nature of the EU and into its founding principles are particularly interesting, where special attention should be given to paragraphs 124–129 of the Judgment in Hungary v Parliament and Council. In response to Hungary’s arguments that there was allegedly no legal basis in the EU primary law for the adoption of the Conditionality Regulation and that it essentially circumvented the special procedure laid down in Article 7 of the TEU, the CJEU pointed out, among other things, that the EU is founded on the values enshrined in Article 2 of the TEU, including the principle of the rule of law where this principle is a principle common to all the EU member states. By joining the EU, a state joins the legal framework based on the fundamental assumption that each Member State respects the common values enshrined in Article 2 of the TEU. This presumption is based on specific principles of EU law; besides, it implies the principle of mutual trust between Member States. Therefore, a Member State’s respect for the values enshrined in Article 2 of the TEU is a condition for exercising the rights of the EU membership. The CJEU emphasized that the values enshrined in Article 2 of the TEU are common to all Member States; therefore, they define the core of the EU identity as a common legal order. It is for this particular reason that the EU must be able to defend these fundamental values in accordance with the competencies conferred on it, and the rule of law, a fundamental value of the EU, can serve as the basis for a conditionality mechanism adopted under Article 322 of the Treaty on the Functioning of the European Union (hereinafter TFEU). In addition, the CJEU linked the existence of the EU budget to the principles of solidarity and mutual trust which, in turn, are fundamental principles of EU law. Furthermore, in response to the applicants’ arguments that the values enshrined in Article 2 of the TEU, including the concept of the rule of law, are allegedly too vague, may be interpreted differently, and are of a political rather than legal nature, and that the EU is allegedly obliged to respect the national identity of the Member States, the CJEU stressed that Article 2 of the TEU is not just a set of policy guidelines or intentions; it enshrines the fundamental values, which are at the heart of the very identity of the EU, and that these values are expressed in concrete legal principles which establish legally binding obligations on the EU Member States. Thus, while the EU respects the national identities of the Member States under Article 4(2) of the TEU, which are intrinsic to their basic political and constitutional structures, and while this respect entails a certain degree of discretion in the implementation of the rule of law principle, such respect does not imply that the results of the duty to respect the rule of law principle may be different in individual Member States.9

As for the national level, a number of national constitutions of EU Member States reflect the value-based nature of EU membership and the systemic compatibility between the EU primary law and national constitutions (Jarukaitis, 2011, p. 94-127). The Constitution of the Republic of Lithuania adopted in 1992 and the jurisprudence of the Constitutional Court of the Republic of Lithuania on the Republic of Lithuania’s membership in the EU serve as a good reflection of this statement. First of all, the Preamble of the Constitutional Act of the Republic of Lithuania on the Membership of the Republic of Lithuania in the European Union that entered into force in 2004 (hereinafter referred to as the “Constitutional Act”) explicitly states that the Seimas of the Republic of Lithuania adopted the Constitutional Act in the conviction that the European Union respects human rights and fundamental freedoms and that Lithuania’s membership in the EU will contribute to a more efficient respect for human rights and freedoms; the Seimas was seeking to guarantee the Republic of Lithuania’s full participation in the integration into the European Union, and to ensure security of the Republic of Lithuania as well as the well-being of the Lithuanian citizens. The case-law developed by the Constitutional Court of the Republic of Lithuania reinforces the impression of the value-based nature of our country’s membership in the European Union. In its case-law, this Court has consistently emphasized the fundamental importance of EU membership both for the country and for its citizens. It explicitly underlines the close links (Ruling of 24 January 2014) between the fundamental constitutional values and EU membership as a positive expression of the state’s geopolitical orientation (as opposed to a negative geopolitical orientation towards the post-Soviet structures); full membership of the EU is perceived as a constitutional value (Ruling of 19 November 2015); besides, the constitutional imperative of proper implementation of the EU law into national law is established. Finally, the EU law is treated as a source for interpreting the Constitution (Decision of 20 December 2017). Thus, a state’s membership in the EU is perceived not only as a participation in a bloc of economic cooperation with the aim of developing international economic relations between states (although, the economic dimension of the EU integration has always been and continues to be of a paramount importance), but as an aspiration to take part in the plan for the unification of the European Continent. Undoubtedly, this practice of the Constitutional Court of the Republic of Lithuania can be regarded as a reflection of our nation’s historical experience of living on a tectonic fault line and the conviction that securing peace in Europe is inextricably linked to the effective protection of the fundamental values of the Western civilization.

2. Synergies of a Dialogue Between the CJEU and National Courts in the Field of Protection of EU Fundamental Values

Turning to the nature and importance of the dialogue between the CJEU and national courts in ensuring the effective protection of the EU fundamental values, including fundamental rights and the rule of law, it is necessary to refer in particular to Article 19(1) of the TEU which reflects the idea of a decentralised EU court system (Jarukaitis, 2023, p. 45-47). It states that the Court of Justice of the European Union comprises the Court of Justice, the General Court, and specialised courts. This Court ensures that the interpretation and application of treaties comply with the law (fr. elle assure le respect du droit). For their part, Member States have the obligation to provide the remedies necessary to ensure effective judicial protection in areas falling within the Union law (fr. une protection juridictionelle effective dans les domaines couverts par le droit de l‘Union). On the one hand, it could be argued that this provision of the TEU introduced by the Lisbon Treaty is a general reflection of the CJEU jurisprudence on the complementarity and completeness of judicial remedies at the EU and national level.10 On the other hand, as can be seen below, the CJEU has in recent years developed an innovative jurisprudence on the scope of application of the second subparagraph of Article 19(1) of the TEU in cases where there is a need to ensure the independence of national courts (along with the effectiveness of EU law). In this context, national courts are perceived as European courts, i.e., they are an essential element of the EU constitutional architecture (Lenaerts, 2023, p. 33-34) where one of their missions is to ensure efficient protection at the national level of the values enshrined in EU law.

As mentioned above, in retrospect, in the early days of the European Communities, the role of national courts was crucial in inspiring the very idea of the protection of fundamental rights at the supranational level. This case law was based, inter alia, on the thesis that national constitutions allow the transfer of public powers to the supranational level but only on the condition that they are exercised in such a way as to ensure the effective protection of fundamental rights. Since national courts are the courts who are most often confronted with the application of EU law and the problems raised thereby, a close dialogue between national courts and the CJEU has naturally developed over time on the basis of the preliminary ruling procedure where national courts have been raising specific questions (and providing arguments concerning the interpretation of EU law) related to the protection of fundamental rights. In this way, they have created preconditions for the development of a supranational case law concerning the protection of fundamental rights. This dialogue enabled the CJEU to develop a rich jurisprudence in this field, which later gave impetus to the drafting and promulgation of the EU Charter of Fundamental Rights in 2000, as well as its incorporation into the EU primary law by the Lisbon Treaty. In turn, the fact that the Charter became part of the EU primary law has created a qualitatively new basis for the CJEU to further develop its jurisprudence.11

Depending on where the real or notional problems concerning the protection of fundamental rights lie, references for preliminary rulings from national courts can be divided into two large groups. The first group covers the cases where national courts have doubts about the compatibility of national law (or the practice of its application) with EU law (obviously, it is not always the compatibility of national law that is directly questioned by national courts, and it is not always the case that such doubts are confirmed). The second group, in turn, covers the situations where national courts question the compatibility of the EU secondary law with regard to the EU primary law, including the Charter. In both cases, such doubts can (and in practice do) arise in virtually any area of EU legal regulation. In fact, recent practice shows that a significant number of such references are made in the Area of Freedom, Security, and Justice (in particular, it concerns asylum and criminal law) which is logical, as the EU gained legislative competence in this area relatively recently; in addition, it means that the EU legislator is quite active and that the CJEU is still developing its case-law. Moreover, this area by its nature is inherently linked to fundamental rights and their restrictions. It is, therefore, natural that questions arise in practice as to the compatibility of such restrictions with the standards of protection of fundamental rights. The migration crisis in Europe in 2015 has led to a relatively high number of references to the CJEU asking for clarification of the EU legal provisions on asylum and, more generally, on the legal status of foreigners.12 Despite the fact that the European Arrest Warrant system13 has existed for more than 20 years, the CJEU still receives a considerable number of requests concerning the interpretation of the Framework Decision on the European Arrest Warrant14. In addition, since the EU legislator first started to regulate aspects of the protection of personal data in the field of criminal law15 in 2016, this area has also attracted the attention of national courts as well as, consequently, of the CJEU.16 In this context, four cases initiated by Lithuanian courts are worth mentioning. Two of them directly questioned the compatibility of national regulation with EU law and in both cases, the CJEU upheld their doubts.17

Where national courts address issues related to the protection of fundamental rights, they, in certain cases, refer to the CJEU questions on the compatibility of national legislation that restricts the powers of national courts with EU law, in particular Article 47 of the Charter, which guarantees the right to an effective judicial remedy. The cases Torubarov18, Braathens19, Staatssecretaris van Justitie en Veiligheid20 and X21 are good examples of such situations. It should be noted that in some cases the limitations of the powers of national courts or the scope of litigants’ rights (and, consequently, the limits to the effectiveness of EU law) may have to be balanced against the imperatives22 of the protection of other fundamental rights, or seen through the prism of the procedural autonomy of Member States.23 Similarly, the imperatives to protect fundamental rights may create the need to strike a balance between them and other fundamental principles of EU law, in particular, the principles of mutual trust and mutual recognition.24 In addition, the interpretation of EU law in such contexts may in parallel raise other closely related issues. In particular, the question on the scope of the application of the EU secondary legislation may need to be evaluated, as the answer to this question determines the scope of the Charter’s application in the case of Member States. For example, in the case NH v Associazione Avvocatura per i diritti LGBTI, the application of the Charter was predetermined by the interpretation of the notion of ‘conditions of employment ... or working conditions’ established in Directive 2000/78/EC.25 A question may arise on EU Member States retaining their discretion to adopt a different/higher level of protection for a certain right. In fact, this question goes hand in hand with the question of the comprehensiveness of legal regulation at the EU level, i.e. it is necessary to assess whether a certain aspect of a legal relationship is comprehensively regulated at the EU level? If the answer to this question is in the affirmative, the logical conclusion follows that EU Member States no longer have such discretion26, but if the answer is in the negative, Member States may retain it.27 Finally, the interpretation of EU law may also trigger the question on how the level of protection provided thereby compares with that of the ECHR and the case law of the European Court of Human Rights (ECtHR) which develops the Convention.28

Although quite rarely, the CJEU faces situations where national courts, in their references for a preliminary ruling, question the legality of provisions enshrined in the EU secondary legislation, including their compatibility with the Charter. In principle, when dealing with such references and depending on a particular legal context, the CJEU can do three things. First, after weighing the pros and cons, it can decide that the EU legislator has not violated the Charter.29 Second, as in the case law of some national courts, the CJEU may apply the method of consistent interpretation, i.e. the Court may decide that the EU secondary legislation is not contrary to the Charter only if it is interpreted in a certain way.30 Third, where the method of consistent interpretation cannot be applied, the CJEU may declare a particular piece of the EU secondary legislation (or part of it) to be invalid. Due to its (ongoing) scale of impact and the exposure of the potential of the Charter, a particularly characteristic example of such a scenario is Digital Rights Ireland case31 where the CJEU ruled that an act of the secondary EU legislation, namely the Data Retention Directive32 was contrary to the Charter.33 Importantly, the annulment of the Data Retention Directive was not the end of the story. On the one hand, after the Directive was repealed, national courts made further references for a preliminary ruling on the lawfulness of the national legislation transposing the Directive.34 On the other hand, national courts have subsequently repeatedly questioned the compatibility of a national legislation with the requirements of the Directive on privacy and electronic communications35. The CJEU has developed a complex jurisprudence36 based on the above-mentioned references but recently the sensitivity of the issues raised has led to an unprecedented situation where one of the cases was referred to the Full Court instead of the Grand Chamber.37 Finally, it should also be noted that the above-mentioned case-law has had a direct impact on Lithuania, since in a case where the Supreme Administrative Court of Lithuania referred for a preliminary ruling, the CJEU found that the national legislation was contrary to the requirements of the Charter.38

The above-mentioned examples of a dialogue39 between the CJEU and national courts provide an overall picture of the importance, scale, and impact of this dialogue on the effective protection of fundamental rights at both EU and national level. It is true that preliminary ruling proceedings are not the only measure available in EU law to ensure its effectiveness. For example, the infringement procedures conducted by the European Commission also perform essentially the same function. However, limited resources and political nature of that institution naturally limit its ability to react.40 It is for this reason that the powers enjoyed by national courts, as well as operational guarantees, including their independence, are essential not only from the point of view of national law but also from the point of view of EU law. Systematically, in the context of the independence of national courts, at least three provisions of the EU primary law are relevant: the above-mentioned Article 19 of the TEU, Article 267 of the TFEU laying down the legal basis for the preliminary ruling procedure and the first paragraph of Article 47 of the Charter which guarantees the right of individuals to effective judicial protection (For more information, see: Jarukaitis, Morkūnaitė, 2021, p. 47-72). It is obvious that the content of the principle of independence of the judiciary cannot vary according to the context in which it operates (Prechal, 2020, p. 175). However, the three provisions mentioned above have their own scope of application and the specific assessment determined by this scope. Article 47 of the Charter is essentially devoted to the right of individuals to effective judicial protection, the scope of application of which is defined by Article 51(1) of the Charter.41 In the context of Article 267 of the TFEU, the principle of judicial independence is simply one of the elements of the concept of the court to determine whether a national body referring to the CJEU is a ‘court or tribunal’ and, consequently, whether its reference for a preliminary ruling is admissible.42 In the context of this study, the above-mentioned second subparagraph of Article 19(1) of the TEU is most interesting. Naturally, the question arises as to the content of that provision, its scope of application and its added value in comparison with Article 47 of the Charter. The recent financial crisis, the consequences of which had to be assessed before the Supremo Tribunal Administrativo of Portugal, provided an excellent opportunity to answer that question, in so far as it dealt with the legality of the rules which led to the reduction in the remuneration of Portuguese judges resulting from that crisis.43 In its reference, the referring court stated, in essence, that the effective protection of rights under EU law is ensured primarily by national courts, which presupposes the obligation to guarantee the independence of the national courts; it also referred to other links with EU law, which it considered to be relevant to the case.44 The Advocate General who delivered his Opinion in the case did not see significant potential in the second subparagraph of Article 19(1) of the TEU.45 However, the CJEU moved in a completely different direction and issued a judgment the importance of which is difficult to overestimate. The assessment of the arguments of the Court judgment shows that it considered national courts to be an essential part of the overall EU judicial architecture, one of the functions of which is the effective judicial protection of rights deriving from EU law.46 Such judicial review goes hand in hand with one of the founding values of the EU, i.e., the principle of the rule of law. The obligation of the Member States under that provision of the TEU was therefore linked to the right to a fair trial. The independence of the judiciary is a fundamental guarantee of this right.47 An essential element in this context is the definition of the scope of application ratione materiae of the second subparagraph of Article 19(1) of the TEU. In its judgment, the CJEU made it very clear that it differs from the scope of Article 47 of the Charter as it does not take into account the circumstances under which Member States are implementing EU law, and in this particular case it stated that the questions examined by the Tribunal de Contas may concern the application and interpretation of Union law.48 It is, therefore, sufficient for such a national court to have jurisdiction to interpret and apply EU law in general. It follows from those considerations that the second subparagraph of Article 19(1) of the TEU is not intended to guarantee only the independence of individual judges as litigants who defend their rights49 but, more generally, the independence of the national courts as an element of the EU constitutional architecture. The function of that provision is, therefore, to ensure the continued protection of the independence of national courts and thus to stabilise both the EU and national constitutional systems.50 This systematic guarantee of the independence of national courts should be understood in the broader context of EU law and the role of national courts in its interpretation and application. In addition, it should be noted that the judgment in case Associação Sindicaldos Juízes Portugueses, discussed above, was delivered at the same time as Achmea judgment51, which, from a general point of view, is to be seen as an expression of the CJEU trust in national courts. Undoubtedly, such trust is not an end in itself52 but it can only be gained if national courts can perform their role properly, and their independence is a necessary precondition for performing such a role.53 In summary, such an understanding of that provision differs significantly from, for example, the scope of application and the underlying logic of Article 6 of the ECHR, the equivalent of which is partly Article 47 of the Charter54. One may say that to some extent Associação Sindical dos Juízes Portugueses judgement reflects the idea put forward by the former ECtHR Judge and President Sicilianos of a more extensive definition of the scope of application of Article 6 of the ECHR in order to include the right of a judge to defend his independence.55

The judgment in case Associação Sindical dos Juízes Portugueses opened a completely new stage in the development of EU law and the involvement of national courts paved the way for the CJEU to develop a sufficiently broad case law from general principles to concrete guarantees of independence of the judiciary.56 Even though most of the questions raised so far concerned guarantees of judicial independence from unlawful interference by political authorities, later the courts have started to raise issues about the internal independence of the judiciary.57

One of the main challenges faced by the CJEU was the need to define the relationship between the second subparagraph of Article 19(1) of the TEU and Article 267 of the TFEU; i.e. to define the situations where references for a preliminary ruling from national courts are admissible. In this context, the case law of the Court of Justice requires a connection between the questions referred for a preliminary ruling and the dispute in the main proceedings. In other words, a request for a preliminary ruling must be ‘necessary’ for the referring court to be able ‘to give judgment’ in the case before it becomes relevant.58 On the one hand, in cases where the subject matter of the dispute before the national court is ratione materiae directly related to the principle of the independence of the judiciary, the link between EU law and the pending case is obvious.59 On the other hand, Miasto Łowicz judgement60 and subsequent case law of the CJEU have shown that the range of situations where Article 19(1) of the TEU is applicable is wider, since questions relating to the independence of the judiciary may also arise in the course of proceedings, i.e. when dealing with various intermediate procedural issues61 (or refraining from taking certain decisions).62 Needless to say, given the complexity of the principle of judicial independence and the different legal traditions of the Member States in the field of organisation of their judicial branch, the Court of Justice will have many opportunities to develop its practice in the years to come.

Conclusions

Although the initial steps of the European integration were framed in economic terms, later developments of the European Communities and the EU gradually revealed its deeper value-oriented background. With the entry into force of the Lisbon Treaty, the EU has entered a new stage of its development by presenting itself as a fully-fledged union of values. The internal and external challenges faced by the EU over the last decade clearly demonstrate the need for further changes to maintain the EU’s viability and its importance in the modern world, as this is the only way to ensure respect for its fundamental values. Such developments and emerging challenges inevitably lead to tensions in ensuring the effective protection of fundamental rights. In this context, a dialogue between national courts and the CJEU is essential for the effective protection of the EU’s fundamental values.

The EU primary law establishes a decentralised judicial system in which the CJEU and national courts complement each other in ensuring the effectiveness of the EU law both at the EU and national levels. Having a mandate to apply the EU law at the national level national courts face challenges posed by national and EU legislation and posing preliminary questions before the CJEU creates preconditions for the latter to develop its jurisprudence protecting the EU fundamental values.

References for a preliminary ruling from national courts concerning the compatibility of EU legislation with the Charter guarantee a decentralised constitutional review function, thus contributing to the stabilisation of the EU level. Meanwhile, the case law of the CJEU, inspired by national courts based on the second subparagraph of Article 19(1) of the TEU, is primarily aimed at stabilising the national courts, which are treated as European courts, and such stabilisation, in turn, contributes to the effectiveness of EU law at national level.

Bibliography

Legal Acts

Treaty on European Union. OJ 2016 C 202, pp. 15–45.

Treaty on the Functioning of the European Union. OJ 2016 C 202, pp. 47–199.

Charter of Fundamental Rights of the European Union. OJ 2016 C 202, pp. 391–407.

Treaty amending the Treaty establishing the European Coal and Steel Community (1951).

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. OJ 2000 L 303, pp. 16–22.

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, pp. 37-47; Lithuanian spec. ed., 2004, Ch. 13, Vol. 29, p. 514), amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, pp. 11–36).

Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. OJ 2006 L 105, pp. 54–63.

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (Text with EEA relevance). OJ 2009 L 337, pp. 11–36.

Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast). OJ 2011 L 337, pp. 9–26.

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA. OJ 2016 L 119, pp. 89–131.

Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) – Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, pp. 1–20), amended by Council Framework Decision 2009/299/JHA of 26 February 2009. OJ 2009 L 81, pp. 24–36.

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters. OJ 2016 L 119, pp. 89–131.

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Jarukaitis, I. (2009). Europos Sąjungos Konstitucinė sutartis ir Lisabonos sutartis: skirtumų beieškant. Teisė, 73, p. 55–74.

Jarukaitis, I. (2011). Europos Sąjunga ir Lietuvos Respublika: konstituciniai narystės pagrindai. Vilnius: Justitia.

Jarukaitis, I., Morkūnaitė, M. (2021). Teismų nepriklausomumo principas Europos Sąjungos teisės raidos kontekste. Teisė, 118, p. 47–72, https://doi.org/10.15388/Teise.2021.118.4

Jarukaitis, I. (2023). Cooperation between Lithuanian Administrative Courts and the Court of Justice of the European Union in the Development of European Union Law: Constructive Dialogue. European Union Law and Lithuanian Administrative Justice. Vilnius: Vilniaus universiteto leidykla.

Jarukaitis, I. (2024). Nacionalinio ir transnacionalinio konstitucionalizmo sąveika: priešprieša ar simbiozė? Nuo nacionalinės Konstitucijos iki transnacionalinio konstitucionalizmo. Vilnius: Lietuvos Respublikos Konstitucinis Teismas.

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Rossi, L. S. (2020). La valeur juridique des valeurs. L’article 2 TUE: relations avec d’autres dispositions de droit primaire de l’UE et remèdes juridictionnels. Revue trimestrielle de droit européen, 3, p. 639–657.

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Jurisprudence

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The Ruling of the Constitutional Court of the Republic of Lithuania of 24 January 2014, No. KT2-N1/2014, Case No. 22/2013.

The Ruling of the Constitutional Court of the Republic of Lithuania of 19 November 2015 No. KT30-N19/2015, Case No. 41/2014-42/2014-45/2014-46/2014-47/2014-48/2014-49/2014-50/2014-51/2014-52/2014- 53/2014-56/2014-57/2014-58/2014-59/2014-60/2014

The Decision of the Constitutional Court of the Republic of Lithuania of 20 December 2017, No. KT21-S11/2017, Case No. 11/2016.

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Wightman and others [CJUE] (Full Court), No. C-621/18 [10.12.2018]. EU:C:2018:999.

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Deutsche Umwelthilfe [CJUE], No. C-752/18 [19.12.2019]. EU:C:2019:1114.

Braathens Regional Aviation [CJUE], No. C-30/19 [15.04.2021]. EU:C:2021:269.

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Consob [CJUE], No. C-481/19 [02.02.2021]. EU:C:2021:84.

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IS (Illégalité de l’ordonnance de renvoi) [CJUE], No. C-564/19 [23.11.2021]. EU:C:2021:949.

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YP and others (Levée d’immunité and suspension d’un juge) [CJUE], No. C-615/20 and C-671/20 [13.07.2023]. EU:C:2023:562.

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Pending Cases

Pending Case, La Quadrature du Net and others (Personal data and lutte contre la contrefaçon) (C-470/21).

Pending Case, HANN-INVEST (C-554/21, C-622/21 and C-727/21)

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