HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

hearing within a reasonable time before an independent and impartial tribunal established by law. 13 To understand the relationship between these provisions, one must examine CJEU case law. In the landmark case ACJP, the CJEU held that the “principle of effective judicial protection of individuals rights (…) is a general principle of EU law stemming from the constitutional traditions common to the Member States (…), which is now reaffirmed by Article 47 of the Charter.” 14 The CJEU also concluded that the elements of guaranteed individual rights are a necessary part of the national justice system. A key element of both articles is whether the case is decided by an independent and impartial tribunal established by law. 15 An essential aspect of the relationship between these provisions is that Union law imposes broad requirements on the independence and impartiality of tribunals (or courts) established by law. This requirement demands that the court of members be independent and impartial inseparably regarding whether the court hears a case with a union dimension. In practice, a court cannot be considered independent and impartial in an EU law case if it is subject to political influence, regardless of whether the case involves an EU law element. 16 A crucial aspect is that the fundamental rights guaranteed by the Charter are partially incorporated as an essential part of the national justice system. Michał Krajewski argues that the normative requirements imposed on Member States by both articles are essentially the same, a view with which I agree. The key difference is that Article 47 of the Charter frames these requirements as subjective fundamental rights, while Article 19 TEU establishes them as objective principles of EU law. 17 This distinction highlights another significant difference. While Article 47 of the Charter and Article 19 TEU overlap in their normative requirements, they serve different purposes. Article 19 TEU applies more broadly to structural national measures undermining judicial independence. Article 47 of the Charter, however, is more narrowly applicable when there is a ‘subject-matter nexus between the situation arising under member state law and the EU law measure relied on. 18 This suggests that while the substantive requirements are identical, a breach of these standards cannot always be invoked under both provisions. Article 19 can only be invoked in cases of 13 Article 47 Charter 14 Judgement – Associação Sindical dos Juízes Portugueses,C -64/16 ECLI:EU:C:2018:117, § 35. 15 BOBEK, M. – BŘÍZA P. – HUBKOVÁ, P. Vnitrostátní aplikace práva Evropské unie. 2. vyd. Praha: C. H. Beck, 2022, p. 498–508. 16 Ibid. p. 498–508. 17 KRAJEWSKI, M. Associação Sindical dos Juízes Portugueses: The Court of Justice and Athena’s Dilemma. European papers 2018, Vol 3, No 1, p. 403–404. 18 VAN ELSUWEGE, P. – GREMMELPREZ, F. 2020. Protecting the rule of law in the EU legal order: A constitutional role for the court of justice. European constitutional law review 2020, Vol 16, No 1, p. 27.

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