Setting the Limits of the Member States’ Institutional Autonomy in the Case of Romania, Hungary, and Poland

Changes in the Case Law of the CJEU Concerning the Control of National Judicial Systems

Abstract

Until recent years, the measures taken for EU law implementation in domestic legal systems did not address the institutional issues of national courts, namely the institutional autonomy of Member States in the context of domestic judicial systems. The application of EU law in domestic law is based on two principles: institutional and procedural autonomy. In the interpretation of procedural autonomy, EU law is to be enforced by applying national procedural rules, subject to the limits of effectiveness and the principles of equal treatment. The principle of equal treatment requires that the procedural rule of a Member State for the enforcement of EU law should not be less favourable than the procedural rule of a Member State for the enforcement of claims arising under national law in a comparable situation. The principle of effectiveness requires that national procedural rules should not make it impossible or excessively difficult to enforce rights deriving from EU law. The institutional autonomy meant that the enforcement of EU law took place within the framework of the Member States’ institutions: they were not bound by EU law, except in very specific areas or criteria. Before the change under our examination occurred, the Court of Justice of the European Union defined specific criteria for the establishment of national courts, but these were not aimed at ensuring the independence of domestic courts. Instead, they were limited to the cases in which the CJEU found questions referred for the preliminary ruling admissible; these criteria guaranteed, inter alia, that the given court is established by law, operates permanently, applies the law, and renders binding decisions. In recent decades, a change occurred in the case law of the CJEU, and while issues regarding the judicial system remain under the Member States’ competence, EU law defines several criteria in that regard. In this paper, we will examine the decisions taken in the three Member States under review, Hungary, Romania and Poland, but we will also look at the background: the limitation of institutional autonomy by the practice of the CJEU was not ‘without precedent’, i.e. this case law started to be applied in other Member States already in the first half of the 2010s. Following an examination of the decisions concerning the three Member States, an attempt is made to compare the EU criteria set out in those decisions in relation to the national courts with each other and with the decisions examined in the precedents. An analysis will also be made of whether the EU requirements for courts can be systematised on the basis of the current decisions.