Judicialising the Rule of Law Through the Preliminary Ruling

Abstract

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The chapter examines the impact of multi-level judicial engagement on tackling rule of law violations at Member State level, while considering the dangers of an over-reliance on the judicial enforcement of the rule of law. This judicialisation of the rule of law has contributed to the operationalisation of substantive safeguards of the rule of law, such as the right to a fair trial under Article 47 Charter of Fundamental Rights of the European Union (CFR) or the right to effective remedies under Article 19(1) Treaty on European Union (TEU). However, the role of the CJEU as the primary enforcer of the rule of law presents risks of politicisation that are, the result of the ineffectiveness of EU political enforcement tools under Article 7 TEU. Instead, the CJEU through the preliminary reference mechanism and infringement proceedings (vertical judicial dialogue) and Member State courts in their horizontal judicial dialogue contribute to bridging this gap and enforcing fundamental rights as safeguards of the rule of law.