HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

BEYOND LIMITS: PROTECTION OF RIGHT TO A FAIR TRIAL VIA ARTICLE 19 TEU: POLISH CASES Jan Zindr Abstract Article 19 TEU has become a key instrument in CJEU jurisprudence primarily for protecting the right to a fair trial. In my article, I clarify its nature. I also explore the relationship between the provisions of Article 19 TEU and Article 47 of the Charter, which guarantees an individual right that covers some aspects shared with Article 19 TEU. Through two Polish cases (Miasto Łowicz, Joined Cases C-558/18 and C-563/18 and Commission v. Poland, C-619/18) decided by the CJEU, I demonstrate how Article 19 TEU can be utilized and its potential limits, arising from the nature of the preliminary ruling procedure. Introduction The Charter of Fundamental Rights of the European Union (“Charter”) is a unique instrument. Unlike international human rights treaties, the scope of application for human rights protection is not laid down as a general obligation to the signatory states to respect, fulfil, and protect the human rights enshrined in it. The specific character of the Charter is determined by the fact that it is an integral part of EU primary law. Its application is limited by Article 51, which defines these limits as follows: “ The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when implementing Union law ”. The Court of Justice of the European Union (“CJEU”) introduced an innovative doctrine in recent case law developed in response to the rule of law backsliding. This doctrine is based on the interpretation and application of Article 19 of the Treaty on the European Union (“TEU”). Article 19 TEU further provides that: “(…) Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. (…) ” This doctrine allows CJEU to extend beyond the restricted scope of the Charter, specifically in situations concerning Article 47, which states: “(…) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law (…) ”. In the key case, Associação Sindical dos Juízes Portugueses (“ ASJP ”) 1 , CJEU linked the principle of effective judicial review with Article 47 of the Charter. This connection allows the CJEU to expand the boundaries set by Article 51 of the Charter, enabling it to protect

1 Judgement – Associação Sindical dos Juízes Portugueses, C-64/16 , EU:C:20. 18:117, § 35.

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