Judicial Protection in the European Union

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This course will examine the system of judicial protection established by the EU Treaties and

will focus on the role of the Court of Justice of the EU in developing the constitutional

character of the EU. It will provide an overview of the relationship between the CJEU and

national courts, and how judicial relations have been affected by case law in recent years

from the CJEU, the European Court of Human Rights as well as national courts, particularly

relating to the EU value of the rule of law and the consideration of EU obligations based on

mutual trust.

The European Court of Justice has always played a central role in shaping the relationship

between EU and national law, most frequently as a result of dialogue with national courts

when they are applying EU law. This has given rise to the development of structural

constitutional principles such as direct effect, supremacy and mutual trust. In recent years,

case law relating to the rule of law and judicial independence has led to the development of a

body of EU law dealing with judicial independence as an essential prerequisite for a

functioning EU legal order. The structural (systemic) protection of fundamental rights at the

EU level, under the ECHR and at the national level has been a critical factor in these

developments.

This course will provide students with insights into the following areas:

1. The role of the Court of Justice of the European Union and the concept of national

procedural autonomy

2. The relationship between the CJEU and national courts

3. Primacy of EU law and national constitutional identity under Art. 4(2) TEU

4. Effective judicial protection and remedies for breaches of EU law

5. The autonomy of the EU legal order and risks posed by international courts and

investment tribunals (ISDS)

6. The scope of the principle of mutual trust in EU law

7. The principle of mutual trust as a horizontal obligation of Member States

8. The protection of fundamental rights in the EU 1: European fundamental rights

protection

9. The protection of fundamental rights in the EU 2: The protection of fundamental

rights under the ECHR system

10. The values of the EU in Art. 2 TEU 1: the value of rule of law as given expression in

Art. 19 TEU, and judicial independence in EU law

11. The values of the EU in Art. 2 TEU 2: the added value of the values in Art. 2 TEU

and their justiciability

12. The EU budget and the rule of law conditionality mechanism

13. The Art. 2 TEU implications for the restoration of the rule of law in a Member State

Preferred reading list:

Stephen Weatherill, Law and Values in the European Union (Oxford, 2016; online edn,

Oxford Academic, 18 Aug. 2016)

Petra Bárd, ‘In courts we trust, or should we? Judicial independence as the precondition for

the effectiveness of EU law’, (2022) European Law Journal, 1-26

Ana Bobić, ‘Constructive Versus Destructive Conflict: Taking Stock of the Recent

Constitutional Jurisprudence in the EU’, Cambridge Yearbook of European Legal Studies, 22

(2020), 60-84

Koen Lenaerts, ‘La vie après l'avis: Exploring the principle of mutual (yet not blind) trust’,

Common Market Law Review, Volume 54, Issue 3 (2017) pp. 805 – 840

Jed Odermatt, ‘Is EU Law International? Case C-741/19 Republic of Moldova v Komstroy

LLC and the Autonomy of the EU Legal Order’, European Papers, Vol. 6, 2021, No 3, 1255-

1268

Ruairi O’Neill, 'National constitutional identity as a tool for protecting the autonomy of the

EU legal order', Common Market Law Review, Vol. 60(5), 2023, 1453-1474

Ruairi O’Neill, 'Effet Utile and the (re)Organisation of National Judiciaries', European Law

Journal, 2021, 27(1-3), 240-261

Cecilia Rizcallah, ‘The Systemic Equivalence Test and the Presumption of Equivalent

Protection in European Human Rights Law—A Critical Appraisal’, German Law Journal

(2023), 24, pp. 1062–1077

Orlando Scarcello, ‘Effective judicial protection and procedural autonomy beyond rule of law

judgments: Randstad Italia’, Common Market Law Review, Volume 59, Issue 5 (2022) pp.

1445 – 1464

Armin von Bogdandy and Luke Dimitrios Spieker, ‘EU Values as Constraints and

Facilitators in Democratic Transitions’, in Bobek, Bodnar et. al., Transition 2.0: Re-

establishing Constitutional Democracy in EU Member States, 320, Nomos, (Baden-Baden

2023), 113-142

Learning Outcomes: this course aims to provide students with advanced knowledge about the

major mechanisms of judicial protection in the European Union and their impact on national

legal systems.

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