The “Cross-Eyed” Court of Justice of the European Union: On the Selective Approach to the Rule of Law in EU Countries
In recent years, the concept of “the rule of law,” often referred to simply as “rule of law,” has been discussed extensively and has become a term used quite commonly in legal and political debates. Generally, this concept is regarded as a hallmark of highly developed, civilized states in which the political community operates on the basis of and within the limits of legal rules established within society. In the opening words of her essay written nearly 40 years ago, the American philosopher and political theorist Judith Nisse Shklar pointed out that the concept of the rule of law “has become meaningless thanks to ideological abuse and general overuse”[1]. Retired U.S. Supreme Court Justice Anthony M. Kennedy observed that the term “rule of law” is easily invoked, while noting that it is never actually defined[2].
The principle of the “rule of law” is one of the fundamental elements of a functioning European legal system, although it is understood in very different ways[3]. Within the current legal framework, the principle of the rule of law is directly reflected in Article 2 of the Treaty on European Union. This provision, which is the most prominent legal directive within European Union law and defines the framework of the EU’s axiological order, encompasses a wide range of fundamental values, including the concept of “the rule of law.” According to it: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail.” Grzegorz Pastuszko[4] noted that the text of the Treaties indicates that this can be understood as a clause aimed at promoting axiological standards within the emerging European political space, encompassing both the functioning of EU institutions and that of national institutions. Understood in this way, the EU’s rule of law, as enshrined in the provisions of the Treaties, constitutes a fundamentally distinct entity from the rule of law in force in individual Member States.
In political and legal scholarship, there is also a different approach to the concept of the “rule of law,” which serves as an instrument of political influence to maintain power by specific political forces, as well as to preserve the dominance of liberalism over other doctrines. Mikołaj Pietrzyk, analyzing the relationship between the so-called rule of law and liberal democracy, concludes:
As demonstrated, a substantive understanding of the rule of law is a powerful tool for preserving liberal domination over other doctrines. A liberal understanding of the rule of law and liberal democracy are not necessarily threatened by certain state system solutions, but they are threatened by people who do not believe in liberalism. Liberalism assumes that experts simply know better what is good, while the rest must accept it. Those who disagree with the liberal vision are populists who destroy the rule of law and democracy.
Any violation of the principle of the rule of law, in accordance with EU regulations, has treaty-based consequences. Article 7 of the Treaty on European Union[5] provides for a procedure concerning a violation of Article 2 of the Treaty, which may even result in the suspension of that Member State’s rights. In the practical functioning of the European Union, the instrument provided for in Article 7 is therefore of considerable political significance. There is no doubt that, in addition to the actions of the European Commission and other EU bodies in the areas of lawmaking and the adoption of political resolutions (e.g., resolutions of the European Parliament), it is precisely the case law of the Court of Justice of the European Union in Luxembourg that constitutes one of the fundamental elements in establishing a Member State’s violation of the so-called rule of law[6].
In light of Article 19(1), first subparagraph, of the Treaty on European Union[7], the Court of Justice, within the institutional framework of the European Union, is the body that ensures respect for the law in the interpretation and application of the Treaties. Pursuant to the second subparagraph of the aforementioned provision, Member States shall establish the legal remedies necessary to ensure effective judicial protection in areas covered by Union law.
The CJEU’s previously cautious stance on the so-called rule of law in member states in cases concerning the judiciary changed in the judgment in Case C-64/16 ASJP[8], concerning Portuguese judges. The approach adopted by the Court in this ruling provides for the possibility of assessing the standard of judicial independence based solely on the principle of effective judicial protection under Article 19(1), second subparagraph, of the TEU, without reference to any other EU provision. Therefore, the the mere fact that a national court has jurisdiction to adjudicate cases with a Union element—i.e., those in which EU law may be applied and interpreted—may be deemed sufficient[9].
Since 2018, when legislative changes governing the selection of judges serving on the National Council of the Judiciary took effect, the Court in Luxembourg has decisively begun to expand its review and assessment of the judicial systems in member states in cases involving Poland. This occurred in violation of treaty provisions, which do not grant EU bodies competence in matters relating to the judiciary. In more than 30 cases[10] concerning Poland, the Court of Justice has assessed the functioning of the judiciary, finding that the procedure for appointing 15 judges to the National Council of the Judiciary by the Polish Sejm (which was then dominated by the conservative Law and Justice party), despite the fact that the Constitutional Tribunal in Warsaw had deemed this arrangement consistent with the Constitution of the Republic of Poland[11]. The CJEU shared the concerns of both the European Commission and the courts that had referred the matter for a preliminary ruling, namely that the fact that a political body (the Sejm) of 15 judges to the National Council of the Judiciary, which submits nominations for appointment (or promotion) to the office of judge to the President of the Republic of Poland, is inconsistent with the standards of the rule of law required in the European Union.
It is hard not to notice that the Court in Luxembourg applies a peculiar and completely incomprehensible distinction among Member States and their judicial systems. A prime example of this is the CJEU judgment in Case C-272/19, VQ v. Land Hessen, delivered on July 9, 2020, by a panel composed of: A. Prechal, President of the Chamber, L.S. Rossi (Rapporteur), J. Malenovský, F. Biltgen, and N. Wahl, concerning a request for a preliminary ruling under Article 267 TFEU, submitted by the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden, Germany), in which the Court of Justice of the European Union ruled on the procedure for the appointment of judges in the State of Hesse in the Federal Republic of Germany and the legislature’s involvement in that procedure[12]. In that case, the very judge who referred the question to the Court in Luxembourg for a preliminary ruling had serious doubts as to whether he could be regarded as a judge who was independent and free from political influence, given the existing laws of the state of Hesse. Under that legislation, the Minister of Justice appoints and promotes judges, and also issues guidelines regarding the evaluation of judges’ competence and performance. The court in Wiesbaden notes that the political influence (including institutional influence) of the executive branch on the courts is enormous:
With regard to the internal aspect of independence, the Verwaltungsgericht Wiesbaden (Administrative Court of Wiesbaden) explains that German constitutional law does not guarantee the institutional independence of the courts.
Despite these serious reservations expressed by the referring judge himself, the CJEU saw no problem with this structure of German federal legislation, even though it grants politicians significantly greater influence over the appointment and promotion of judges. The Court found that the procedure for appointing or promoting a judge involves the Commission for the Selection of Judges, which—in accordance with Article 127 of the Constitution of the State of Hesse—consists of seven members appointed by the state parliament (i.e., a majority), five members drawn from the ranks of judges, and—on an annual rotating basis—the president of one of the two bar associations of that state. As the Court notes, the members appointed by the aforementioned parliament in proportion to its composition should ensure the democratic legitimacy of the commission in question. In the Court’s view, the fact that the majority of members are elected by a political body (the parliament) does not automatically mean that judges appointed by the Minister of Justice under such a procedure lack independence. The independence of a national court should, in fact—including with regard to the conditions under which its members are appointed—be assessed by taking into account all relevant factors.
The Court thus falls into an obvious contradiction in its case law. It asserts that the fact that judges in Poland are appointed by a President elected by the entire nation in direct elections—who does not belong to a political party—following a recommendation made by the National Council of the Judiciary, which is elected in its majority by the Sejm of the Republic of Poland, constitutes a violation of the rule of law and European Union standards. At the same time, however, the appointment in the German state of Hesse by the Minister of Justice—who is clearly a member of a particular political party—upon the recommendation of a judicial selection committee elected by a majority in the German state parliament, does not constitute a violation of the rule of law. This kind of inconsistency demonstrates double standards in the case law of the Court in Luxembourg, stemming more from political rather than legal considerations.
[1] J. N. Shklar, “Political Theory and the Rule of Law,” in A. C. Hutchinson and P. Monahan (eds.), The Rule of Law: Ideal or Ideology, Toronto 1987, p. 1.
[2] The term “rule of law” is often invoked but seldom defined: A. M. Kennedy, Address at the 20th Sultan Azlan Shah Law Lecture: Written Constitutions and the Common Law Tradition (accessed online June 15, 2026: https://www.sultanazlanshah.com/pdf/2011%20Book/SAS_Lecture_20.pdf).
[3] See, e.g., P. Marcisz, M. Taborowski, „Nowe ramy Unii Europejskiej na rzecz umocnienia praworządności. Krytyczna analiza analizy krytycznej (artykuł polemiczny)”, „Państwo i Prawo” 2017, no 12, p. 100; P. Bogdanowicz, Pojęcie, treść i ochrona praworządności w prawie Unii Europejskiej, [w:] J. Barcz, A. Zawidzka-Łojek (ed.) Wniosek Komisji Europejskiej w sprawie wszczęcia w stosunku do Polski procedury art. 7 TUE, Warszawa 2018, p. 3.
[4] G. Pastuszko, “Influence of the EU Institutions on the Polish Constitutional Order in the Context of the Dispute over the Rule of Law,” in G. Pastuszko (ed.), Rule of Law, Warsaw 2023, pp. 309–310.
[5] Article 7, Section 1: Upon a reasoned proposal by one-third of the Member States, by the European Parliament, or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may issue recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made
continue to apply.
[6] G. Pastuszko, Influence of the EU Institutions on the Polish Constitutional Order..., pp. 336–337.
[7] Treaty on European Union, Official Journal of the EU C 326, Oct. 26, 2012, pp. 13–390, hereinafter: TEU.
[8] Judgment of the CJEU of February 27, 2018, C-64/16 Associação Sindical dos Juízes Portugueses, EU:C:2018:117, hereinafter: the ASJP judgment, delivered by a panel composed of: K. Lenaerts, President; A. Tizzano, Vice President; L. Bay Larsen, T. von Danwitz, J.L. da Cruz Vilaça, A. Rosas, E. Levits (Rapporteur), and C.G. Fernlund, Presidents of Chambers; C. Toader, M. Safjan, D. Šváby, M. Berger, A. Prechal, E. Jarašiūnas, and E. Regan.
[9] Paragraph 37 of the judgment in Case C-64/16 ASJP.
[10] See, for example, the judgments in Cases C-619/18, C-192/18, C-585/18, C-624/18, C-625/18, C-558/18, C-563/18, C-824/18, C-354/20, C-216/18, C-791/19, C-487/19, C-748/19–C-754/19, C-562/21, C-563/21, C-508/19, C-132/20, C-644/20, C-480/21, C-698/20, C-615/20, C-71/20, C-181/21, C-269/21, C-204/21, C-521/21, C-647/21, C-648/21, C-718/21, C-43/22, C-225/22.
[11] See the judgment of the Constitutional Tribunal of March 25, 2019, Case No. K 12/18.
[12] ECLI:EU:C:2020:535.
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