La clausola di non regressione nella giurisprudenza della Corte di giustizia dell’Unione europea. Potenzialità e limitazioni di un nuovo strumento per la protezione dello stato costituzionale di diritto

The non-regression clause in the case law of the European Court of Justice. Potential and limitations of a new tool for protecting the rule of law from illiberal involutions

Abstract

The non-regression clause in the case law of the European Court of Justice. Potential and limitations of a new tool for protecting the rule of law from illiberal involutions – The European Union has faced ongoing conflicts over the rule of law, linked to broader democratic backsliding. Cases before the European Court of Justice, particularly involving Poland, have highlighted issues such as political judicial appointments, culminating in the 2017 parliamentary selection of judges for Poland’s National Council of the Judiciary. Comparisons with cases like Repubblika (Malta) and Land Hessen reveal the EU’s limited ability to enforce uniform judicial models due to varying national systems. The introduction of the non-regression principle in Repubblika is explored as a potential tool to protect the rule of law. However, its application in Polish cases suggests it is not a neutral criterion, revealing a preference for judicial council-based systems.

Keywords: European Court of Justice; Judicial appointments; Judicial independence; Non-regression.