This event will feature two presentations by EUI visiting researchers: "EU Standards for Judicial Appointments: normative foundations and comparative perspectives" and "The Myth of the Absence of the Horizontal Direct Effect of Directives".
EU Standards for Judicial Appointments: normative foundations and comparative perspectives
In light of recent attacks on judicial independence in several Member States, EU institutions have begun to operationalise the value of the ‘rule of law’ under Article 2 TEU and the principle of effective judicial protection. The organisation of national judiciaries has come under increased EU scrutiny. In particular, a framework of EU standards for judicial appointment procedures has emerged – necessary to safeguard judicial independence as a cornerstone of the rule of law.
However, these EU standards seem to rest on several implicit normative assumptions. In particular, the European Commission and CJEU emphasise the aspect of external judicial independence, prioritising the shielding of judges from executive and legislative interference, and tend to favour elements of judicial self-government. In contrast, a comparative analysis of Member States’ appointment frameworks demonstrates that national systems reflect multiple normative commitments, including pluralism, equality, accountability, and democratic input. Rather than reflecting a single principle, appointment procedures typically embody complex interactions of a range of different, at times competing, normative objectives.
Against this background, the presentation asks whether EU standards accommodate this diversity of legitimate goals and normative complexities underlying judicial appointment procedures. While EU intervention remains essential to respond to rule of law backsliding, the current approach risks reflecting a normatively narrow conception of judicial appointments and independence. Ultimately, the presentation calls for balanced standards that accommodate complexity, whilst maintaining a robust protection of effective judicial protection. As part of a broader doctoral project, the presentation aims to develop these arguments further and invite discussion.
The Myth of the Absence of the Horizontal Direct Effect of Directives
Union directives cannot, as such, be directly relied upon by a private individual against another private individual before a national court, thus stated the Court of Justice of the EU ('the Court') in Marshall. About forty years later, the confusion brought about by subsequent case law of the Court has made determining the contours of the effectiveness of directives in horizontal situations, as well as the consequences and underlying rationale thereof, ‘a task fit only for masochists’. Indeed, while the Court has remained true to its case law on the lack of horizontal direct effect of directives, it has not shied away from identifying avenues around that constraint by, among other pursuits, in certain, not yet defined, cases allowing for national legislation contravening a directive to be disapplied in a horizontal situation.
It is precisely that gap in the state of the art which will be addressed in the present submission, namely, the lack of a theory capable of accurately describing the case law of the Court concerning the effectiveness of directives in horizontal situations when relied upon by themselves. The research observes that such a descriptively accurate theory is able to be established, yet it requires refuting the very absence of the horizontal direct effect of directives. The research argues that this phenomenon not the result of any limits on direct effect at all, but must instead be considered as resulting from limits operating on the level of the primacy of directive provisions grounded in general principles of Union law, in a manner similar to those limits recognised to act on the principle of primacy in the Court’s case law in, among others, Lin. As such, the research concludes that the very paradigm through which the effectiveness of directives in horizontal situations is often, if not exclusively, analysed, the absence of the horizontal direct effect of directives might just constitute a myth.