HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

2.1 Miasto Łowicz The CJEU adopted a different approach in each case. However, the Court found the referred question inadmissible in the preliminary ruling procedure. The response was primarily justified in terms of the relationship of the original proceedings when questions posed by the court regarding the potential influence caused by the possibility of initiating disciplinary proceedings in the event of an outcome that the controlling party would not accept were rejected due to insufficient relevance to the original proceedings. It emphasised that: “Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph ”. 31 The Court followed the reasoning of Advocate General Evgeny Tanchev, who reached the same conclusion. In his analysis, he recommended that the CJEU declare the reference inadmissible. This decision illustrates how the CJEU established potential limits on applying the principle of effective judicial protection and Article 19 TEU. The CJEU restricted the application of Article 19 TEU based on both procedural type and case content. 32 Nonetheless, Article 19 TEU can still be applied in preliminary ruling procedures. For instance, it could apply if disciplinary proceedings were initiated against a specific judge for deciding a case. This can be inferred from the decision itself, where the CJEU acknowledges the relevance of the fact that disciplinary proceedings in this case were not initiated after the investigation. 33 A key issue with this approach is that courts, whose judges are irregularly appointed and subject to political influence, may avoid questioning their own independence in a preliminary ruling request. 34 However, restricting the application of Article 19 TEU based on procedural type is not without controversy. I essentially share A. Torres Pérez’s scepticism regarding the restriction of Article 19 TEU in preliminary ruling references. Even if the answer to the preliminary question was not crucial for resolving the case, restricting such references could undermine effective judicial protection. Such a ruling would also set a precedent for disciplinary proceedings, extending beyond the specific case at hand. 35 31 Ibid. § 58. 32 TORRES PÉREZ, A. Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States? The Cambridge yearbook of European legal studies 2020, Vol 22, p. 295–297. 33 Judgement – Miasto Łowicz, Joined Cases C-558/18 and C-563/18, § 54. 34 PLATON, S. 2020. A. Court of Justice Preliminary references and rule of law: Another case of mixed signals from the Court of Justice regarding the independence of national courts: Miasto Lowicz. Common market law review 2020, Vol 57, No 6, p. 1860. 35 TORRES PÉREZ, A., Rights and Powers in the European Union: Towards a Charter that is Fully Applicable to the Member States? p. 295.

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