Non-Regression: Opening the Door to Solving the ‘Copenhagen Dilemma’? All the Eyes on Case C-896/19 Repubblika v Il-Prim Ministru

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 Article 19(1) TEU and Article 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 Articles 49 TEU and 2 TEU as
obliging the Member States to ensure the antional 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 Article 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
the 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.