|Opis:||The independence of the judiciary constitutes a fundamental element of the principle of effective judicial protection, which derives from the common traditions of the Member States and is furthermore a general principle of EU law. In order to uphold the rule of law principle, the effective judicial systems are of paramount importance. The concept of judicial independence is an autonomous concept of EU law. The Court of Justice has divided it into three aspects. First, external judicial independence, which requires that the judicial body must not be subordinated to any orders, instructions or other external interventions. Second, internal aspect of judicial independence, which is based on the idea of absolute neutrality of the judges (impartiality) – which seeks to safeguard a level playing field for the parties and achieve objectivity. Third, the principle of irremovability, which was recently highlighted by the Court of Justice in the case of Poland and determined that judges can be required to resign prematurely only on the grounds of pre-determined strict conditions and legitimate interest. On the other hand, the ECtHR has developed a subjective-objective standard to determine judicial impartiality with which we can draw parallels with the definition given by the Court of Justice.
The independence of the national courts is moreover essential to the proper functioning of the preliminary ruling mechanism under Article 267 TFEU. That was evidently emphasized in the Portugueses judges case. In its primary function this procedure ensures full effect and autonomy of EU law as well as the consistency and uniformity of the interpretation of EU law. Above all, Member States cannot make amendments to its national legislation which would prevent requests for the preliminary ruling addressed to the Court, otherwise the independence and impartiality of the courts would be infringed.
Currently, immense controversies are happening in Poland and Hungary – two Member States that persistently violate the rule of law, which has already been established by the Court of Justice. In these cases, the Court of Justice has set imperative precedents when taking a decision-making approach through the Article 19 TEU in correlation with the Article 47 of the Charter, both respecting the principle of judicial independence within the principle of effective judicial protection. Not only there has been many legal proceedings against both Member States, but the political proceedings have been initiated as well. It must be emphasized that both proceedings can be invoked at the same time. The difference is that, in the case of legal procedure, it is possible to directly initiate a procedure at the Court of Justice, however, when it comes to the political procedure, we must meet the criteria of »serious and persistent breach« of the values referred to in Article 2 TEU, which is not an easy task.|