Judicial Protection as the Meta-norm in the EU Judicial Architecture

Abstract

The rule of law in the European Union rests on a precarious decentralised judicial architecture with the two pillars of the judicatures of the EU and of the Member States. Judicial protection emerges as the meta-norm for the governance of this complex governance scheme. It re-orientates the entire EU judicial architecture towards protecting individual rights grounded in EU law. The article makes three supporting arguments: First, the norm of judicial protection has become institutionalised in law, through the Charter of Fundamental Rights, the Treaty on European Union and relating jurisprudence of the Court of Justice of the European Union (the Court). Further, as judicial protection becomes a meta-norm, capable of overriding even conflicting primary EU law that would preserve the discretion of the political EU institutions or the procedural autonomy of the Member States. Finally, by reference to the norm of judicial protection, the Court’s doctrine has been shaping a single code of procedure that welds the entire twin-pillared EU judicial architecture into a coherent whole. The article documents this single code of procedure for a horizontal dimension of the Court of Justice of the EU and a vertical dimension of the Member States courts. The implications of this rise of judicial protection to meta-norm applies to a wide variety of debates on the judicial architecture, ranging from a EU federal question jurisdiction of Member States courts, enforcement of the independence of the judiciary in the sovereign Member States, to the integration of international and third-country courts. The article concludes that the ultimate legitimacy of European integration depends on rights being taken seriously through their guaranteed judicial protection.