HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

genuinely systemic violations, whereas Article 47 applies specifically to breaches of fundamental rights. However, invoking Article 19 effectively also provides indirect protection of Charter standards. The crucial question is also whether the fact that both provisions guaranteed the same content means that they can be applied parallelly. The issues of distinction between both concept application scopes decided CJEU in the ASJP case. In this procedure initiated by preliminary reference, CJEU decided on case connect to measure which reduced the salary of judges. This measure was adopted in the context of the union institution’s supervisory and regulation, followed by financial assistance to reduce the excessive Portuguese budget. 19 However, while the measure was influenced by EU financial oversight, Portugal retained discretion in its implementation, meaning it was not an outright EU obligation but rather partially driven by broader EU financial constraints. General Advocate ØE considered Article 19 TEU and Article 47 of the Charter separately. 20 Initially, it assessed the application of Article 19 TEU, concluding, contrary to the Commission and the Portuguese government, that Article 19 TEU can be used as the basis for the case because judges can possibly decide cases connected to EU law. 21 He concluded that Article 47 Charter is also applicable as a basis because the foundation of the national measure was based on decisions of EU bodies, despite Portugal’s existing discretion. 22 The Grand Chamber of the Court of Justice adopted a different approach. It primarily assessed the issue from the perspective of Article 19 TEU, initially stating that the application framework of Article 19 is not limited by Article 51 of the Charter. 23 It then established a connection between the principle of effective judicial protection and Article 47 of the Charter. 24 The CJEU should have considered the independent application of Article 47 of the Charter and granted Article 19 TEU a more exclusive role. L. Pech and S. Platon reach a similar conclusion, highlighting the marginalisation of Article 47 in this case, which they deem unavoidable. In this case, relying exclusively on Article 19 TEU provided a more convincing legal basis for the CJEU’s ruling. 25 D. V. Kochenov and J. Morijn similarly argue that Article 47 of the Charter serves only a supplementary role. They say prioritising Article 47 of the Charter could paradoxically lead to negative consequences. The focus on the fundamental-right based approach could lead to underestimating the essence of the problematic systemic 19 Judgement - Associação Sindical dos Juízes Portugueses,C -64/16 ,ECLI: EU:C:2018:117, § 13. 20 Opinion of Advocate General Associação Sindical dos Juízes Portugueses, C-64/16, ECLI:EU:C:2017:395, §§ 37–53. 21 Ibid § 41. 22 Ibid §§ 52–53. 23 Judgement – Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, § 29. 24 Ibid. § 35. 25 PECH, L. – PLATON, S. A. Court of Justice Judicial independence under threat: The Court of Justice to the rescue in the ASJP case. Common market law review 2018, Vol 55, No 6, p. 1836.

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