The Court of Justice of the EU vis-à-vis rule of law backsliding: National courts’ perception of Court’s approach to the rule of law and fundamental rights. Case of Poland and the Netherlands

The rule of law which the European Union is based upon (article 2 TEU) has been under pressure the recent years. Several EU Member States such as Poland and Hungary have taken measures that critically undermine the independence of the judiciary or the protection of fundamental rights more generally. The European Commission and other EU institutions, have responded relatively late to those infringements, if at all. The inaction of EU institutions has left national courts of the EU member states as the main guardians of EU law and the rule of law. Namely, judges in Member States confronted with rule of law backsliding have turned to the Court of Justice of the European Union for help and support. Polish judges, for example, referred numerous preliminary questions (pursuant to art 267 TFEU) regarding the national judicial reform laws. Those questions concerned for instance the consistency of the Polish disciplinary regime for judges with EU law . In addition, the democratic backsliding in Poland or Hungary had a spill-over effect on other member states. For instance, in the Area of Freedom, Security and Justice, it has become increasingly vivid that the deteriorating quality of the rule of law in a particular Member State (such as Poland) also affects the rule of law and fundamental rights protection in other Member States (e.g. the Netherlands or Ireland). National judges confronted with those problems also referred multiple preliminary references regarding for instance the principle of mutual trust.
The CJEU has, by and large, acted as an institution safeguarding the rule of law and championing fundamental rights. Nonetheless, largely because of limitations inherent in the preliminary ruling procedure and other important interests related to the AFSJ, the CJEU seems not to have ‘picked up the phone’ each time national judges were ‘calling’ them. One may therefore wonder what the perspective is of national judges on the way the CJEU approached the referred preliminary questions in the field of rule of law, judicial independence and fundamental rights protection. To what extent do national judges consider the CJEU to genuinely help with tackling the rule of law issue? The proposed paper is based on empirical study among national judges of selected EU member states regarding their perception of the way the CJEU approached the problem of the rule of law backsliding.