Judicial Independence Under Article 19(1) TEU and Article 267 TFEU: Untangling the Gordian Knot

Abstract

This paper explores the conflicting relationship between Article 19(1) TEU and Article 267 TFEU in the Court of Justice’s case law, particularly in the context of the ongoing rule-of-law crisis in Poland and Hungary. On one hand, Article 267 TFEU presumes that national courts are sufficiently independent to submit references; on the other, some courts simultaneously fail to satisfy stricter standards of independence required under Article 19(1) TEU. Since references are often submitted by courts whose independence has been under attack, the question arises about whether such requests should be held admissible. The paper analyses the Court’s answer to this dilemma in three Grand Chamber judgments – Banco de Santander, Getin Noble Bank, and LG, and advances two key hypotheses. First, the three-case saga demonstrates that the Court has moved away from the original scope and purpose of Article 19(1) TEU and Article 267 TFEU as a result of a political decision to limit engagement with ‘tainted’ Polish courts. Second, irrespective of how these legal bases might be applied, the Court’s judgments should not result in the exclusion of national courts from the preliminary reference procedure. Such an approach would undermine the key mechanisms of the functioning of EU law – the uniform application and effectiveness of EU law – and would compromise the parties’ right to a fair trial, while weakening mechanisms for combating the ‘rule-of-law crisis’. 

Keywords: judicial independence, Court of Justice, Article 19(1) TEU, Article 267 TFEU, Banco de Santander, Getin Noble Bank, LG.

DOI:10.3935/cyelp.21.2025.600

This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License.

Suggested citation: A Altabas, ‘Judicial Independence Under Article 19(1) TEU and Article 267 TFEU: Untangling the Gordian Knot’ (2025) 21 CYELP [ONLINE FIRST].