Resumen de Opening the Door to Solving the “Copenhagen Dilemma”? All Eyes on Repubblika v Il-Prim Ministru

Mathieu Leloup, Dimitry Kochenov, Aleksejs Dimitrovs

• The Repubblika judgment of the Court of Justice introduced the new principle of “nonregression” into the system of EU law. This principle is bound to play an important part in shaping the future of the Union. The Court was asked to assess whether the Maltese system for the appointment of judges was in conformity with the principle of judicial independence, as enshrined in arts 19(1) TEU and 47 of the Charter. Whereas the Court confirmed and developed its recent case law on the appointment of judges, we argue that the judgment will be remembered mostly for the new principle, which was not even indispensable for solving the case. In a novel approach, the Grand Chamber read arts 49 TEU and 2 TEU as obliging the Member States to ensure the national non-regression in the field of EU values. According to the Court, the Union is composed of states that have freely and voluntarily acceded to the Union, which requires them to ensure that any regression of the protection of the founding values is prevented. The new principle may broaden the reach of EU rule of law obligations at the national level beyond the vital aspects of judicial independence activated via art.19(1) TEU in Portuguese Judges and provide a seminal new approach to tackling the so-called “Copenhagen dilemma”: the Union’s inability to enforce the founding values after accession. “Non-regression” is thus a sign of massive rethinking of the potential limits of EU competence. As such, the Repubblika judgment goes to the heart of the protection of EU values and marks a fundamental leap forward in this regard.