Abstract

The recent Hungarian C-564/19 IS (Illegality of the order for reference) case suggests that the interpretation of the principle of judicial independence in EU law precludes the possibility to launch disciplinary proceedings against a judge for submitting a request for preliminary ruling to the CJEU, thereby adding a new angle to the discussion on the substance of Article 47 EU CFR, Article 19 TEU and Article 267 TFEU. The aim of this case note is to shed light on the reasoning of the IS AG’s Opinion and the CJEU’s judgment, given their possible impact on the Luxembourg and Strasbourg Courts’ jurisprudence concerning the ‘rule of law backsliding’ and the AFSJ. The main argument presented is that the IS judgment may be seen as a further development of the previous CJEU’s Associação Sindical dos Juízes Portugueses (ASJP)/Miasto Łowicz lines of cases which perceive the judicial independence of the EU Member States’ courts [Article 19(1) TEU] as one of the key guarantees for the enforcement of Union values (Article 2 TEU). Apart from this important premise, the IS judgment evidently reinforced several aspects of the suspect’s rights to interpretation and information in criminal proceedings within the meaning of the Interpretation and Translation Directive (2010/64/EU) and the Information Directive (2012/13/EU). Hence, the IS line of reasoning can presumably lead to the formation of ‘EU-specific’ procedural guarantees in these areas, which may be considered an upgrading of the standards of protection articulated by parallel developments in the ECtHR’s case law.