The CJEU Between Two Fires: Judicial Independence Criteria for Article 267 TFEU References


This note will analyse the Court of Justice’s changing standards for judicial independence for
the purpose of Article 267 TFEU references. In the recent judgment of L.G., the Court used
the “presumption of independence” approach for the first time since it had been established in the Getin Noble Bank case. As a result, the Court in L.G. refused to answer questions referred by the Polish Supreme Court Chamber of Extraordinary Control and Public Affairs under the preliminary reference procedure as its presumption of independence had been successfully rebutted. This note will analyse the opinion of Advocate General Rantos and the judgment of the Court in L.G. before tracing the development of judicial independence criteria under Article 267 TFEU in the case law of the Court. As there has been considerable fluctuation in the standards of independence the Court has used for the preliminary reference procedure, the judgment in L.G. will be evaluated in light of the recent developments in this line of case law as well as in the context of the ongoing rule of law crisis in the Union. From this perspective, potential pitfalls that could result from the course of action the Court has adopted will be discussed, including the risk of creating ‘structural inadmissibility’ of preliminary references and the consequences of arbitrary application of judicial independence standards.