Rule of Law – Threats and Challenges

This lecture examines some of the threats and challenges to the rule of law in the European Union by way of the elements of that concept identified by Article 47 of the Charter of Fundamental Rights: the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The recent judgments of the EU Court of Justice in LM/Celmer and in Associação Sindical dos Juízes Portugueses enshrine judicial independence as part of the essence of the fundamental right to a fair trial, thereby constituting a sine qua non for the existence of the EU legal order. The external aspect of judicial independence defined by this case-law has consequences for at least three areas: judicial remuneration, the existing institutional arrangements within the Court of Justice of the EU and the disciplinary regime for judges. The various mechanisms in EU Treaties through which the rule of law may be vindicated are examined as to their operability and effectiveness, notably in the context of ensuring that a tribunal be established by law. The author concludes by observing that, notwithstanding the essentially passive role played by courts, actions by ordinary persons seeking to assert their rights before national courts appear to be among the most effective responses to date to the challenges faced by the rule of law in the European Union.