Fiddling while our rule of law house is burning? Judicial independence in the EU in an era of authoritarian populism

In an open letter in September 2019, three major European judicial networks warned about the ongoing “destruction of judicial independence in some Member States”. This paper will first focus on the tactics, political rhetoric and legal arguments used by national autocratic authorities within the EU when they seek to subdue the judicial branch so as to subject it to the will of the country’s ruling party. The case of Hungary, where a law was recently adopted to “guarantee judicial decisions favourable to the government in politically sensitive cases”, and the case of Poland, where the country’s government is on its way to recreate “a Soviet-style justice system”, will illustrate. The paper will then analyse the extent to which what may be labelled “rule of law backsliding” represents an existential threat of the EU. Finally, an overview of the EU institutions’ positive answers, counterproductive answers, façade of answers and non-answers to this threat will be offered.