Intermezzo in the Rule of Law Play: The Court of Justice’s LM Case

Abstract

In the LM case, the CJEU was called to decide on whether systemic rule of law deficiencies in Poland could lead to the suspension of EU cooperation based on mutual trust, in particular under the European Arrest Warrant system. Building on its earlier decision in Aranyosi, the Court concluded that EAWs may be suspended only after the executing authority conducts a general analysis of the situation in the country concerned and an individual assessment of the specific situation of the applicant. For some, the decision was a disappointing one, as the Court failed to take a clear stance on the Polish constitutional crisis. This chapter argues, on the other hand, that the Court reached a balanced decision: while it is true that it confirmed the strict Aranyosi test, it also sent some key messages on the crucial importance of the rule of law and judicial independence for the EU and underlined the red lines of European constitutionalism. Furthermore, a different line of cases that originated from the groundbreaking decision of the Court in the ‘Portuguese judges’ case seems much more promising for the protection of EU values. Thus, rather than a constitutional moment for the Union, LM was ultimately an intermezzo between the two main acts of the rule of law play before the Court of Justice.

Protection of Rule of Law While Protecting Rule of Law

“…This paper will not focus on judicial review of the state of rule of law, i.e. via infringement procedure and preliminary rulings (e.g., Bonelli, 2021) and will not question the independence of the CJEU (discussions in this context, see Kochenov and Butler, 2022) leaving them out of the scope of the paper. The paper will rather focus on judicial review of political or quasi-political/quasi-legal decisions or other acts of the institutions of the EU involved in following procedures designed to protect the value of rule of law: a) mechanism for protection of values under Art.…”