Law and governance: The rule of law crisis in the European Union

Since the start of European integration, the Court of Justice has played a central role in shaping the relationship between the European Union and national law. Crucially, however, this has been done by way of cooperation with national judges, who have been obliged to hear cases involving EU law brought before them. As a consequence, the relationship between ordinary national courts and the Court of Justice has undermined the traditionally hierarchical judicial structure in the member states, due to the principles of direct effect and primacy of EU law, questioning the previously undisputed supremacy of the constitution in the national hierarchy of legal norms. In 2018, the Court of Justice declared judicial independence the cornerstone of the rule of law, expanding its application to all member state action, regardless of the applicability of EU law in a specific case. This shift is crucial as it expands the scope of EU law, distorting the structural relationship between national and EU law grounded in the principle of conferral. These new demands have been put in place to address the recent rule of law backsliding in a number of member states. The national identity clause (Article 4(2) TEU), placing an obligation on the EU to ensure diversity and protect national 'fundamental structures, political and constitutional', provided a legal basis for contestation of EU law by the highest national courts.

The aim of this course is to, first, provide a theoretical background to judicial interactions in the European Union, grounded in theories of federalism and constitutional pluralism. Furthermore, from an empirical perspective, the course aims to address the rule of law backsliding that the EU is currently facing, by focusing on case studies in different member states concerning judicial independence in diverse national constitutional traditions.

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