The court of justice of the EU and the independence of the judiciary

Since 2018 the Court of Justice of the European Union has been the leading actor in shaping and protecting the independence of the judiciary in Member States, by transforming what was previously a mere presumption and a political intention enshrined in the Treaties into an operative and substantial principle subject to judicial control. Several provisions have been called upon to serve as bases for the jurisdictional control of judicial independence: Article 47 of the Charter (AK case, C-585/18), Article 267 TFEU (Krajowa Rada Sądownictwa case, C-718/21) and Article 19 TEU (Portuguese Judges case, C-64/16). To avoid both overlaps and gaps in the principle’s adjudication, the time has come to clearly identify situations able to trigger each of the provisions and ask whether the Court is performing a consistent analysis. A tentative proposal for the reasons underlying the different approaches of the Court will be sketched.