HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

the right to effective remedies and a fair trial in new ways. Some authors argue that this doctrine allows Article 19 TEU to serve as a basis for applying any provision of the Charter. though its scope remains debated, with some scholars arguing for certain limits. 2 This article examines how human rights are protected within the European Union. I focus on how Article 19 TEU serves as a mechanism for preserving the right to an effective remedy and a fair trial, as guaranteed by Article 47 of the Charter. I also analyse how the CJEU applied this doctrine in the ASJP case. In the context of two selected cases concerning the rule of law in Poland, I discuss how the CJEU procedurally limited the use of Article 19 TEU in both preliminary references and infringement procedures, allowing the Commission to protect the rule of law principle via Article 19 TEU. Specifically, I will investigate the Commission v. Poland and Miasto Łowicz cases 3 . Finally, I explain the potential problems associated with this approach. 1. Article 19 TEU as the Instrument of Protection of the Right to a Fair Trial 1.1 Effective Legal Protection in Article 19 TEU Before we can investigate the influence of Article 19 TEU as the instrument of protection of human rights and the EU’s values, it is first essential to understand its meaning and function. In a simplified way, we can appreciate Article 19 TEU as one of the provisions of the European justice system. It lays down the fundamental basis of the functional justice system of the Union; firstly, this article defines Union justice institutions as the Court of Justice, the General Court and specialised courts; secondly, it imposes an obligation to member states to ensure effective legal protection in the field covered by Union law . 4 Article 19 TEU can be seen as a specific expression of the values set out in Article 2 TEU, especially the rule of law principle. 5 CJEU also confirmed the connection between the rule of law principle and effective judicial protection in the case law. CJEU stated: “ It must be recalled that the very existence of effective judicial review designed to ensure compliance with provisions of EU law is of the essence of the rule of law .” 6 Therefore, the rule of law remains a crucial and highly relevant concept, especially in light of increasing backsliding among EU Member States. At the same 2 TORRES PÉREZ. A. From Portugal to Poland: The Court of Justice of the European Union as watchdog of judicial independence. Maastricht journal of European and comparative law 2020, Vol 27, No 1, p. 118. 3 Judgement – Miasto Łowicz, Joined Cases C-558/18 and C-563/18, ECLI:EU:C:2020:234. 4 Article 19, Treaty on European Union. 5 KLAMERT, M. – SCHIMA, B. ‘Article 19 TEU’ In KELLERBAUER, M. – KLAMERT, M. – TOMKIN, J. The EU treaties and the charter of fundamental rights: a commentary. New York: Oxford University Press, 2019 6 Judgement – Rosneft, C‑72/15, ECLI:EU:C:2017:236.

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