Beyond Backsliding: Captured Judiciaries Across the EU

Judicial independence is increasingly more unstable across the European Union. With Hungary and Poland falling on a path of steep democratic decline, which started with the capturing of the judiciary on the part of the government, much of the academic and institutional attention has been focused on addressing instances on rule of law backsliding. However, there are a number of EU Member States, including Malta, Bulgaria and Romania, where judicial independence is equally in peril, despite the lack of outward reform in recent years, or indeed since their accession to the Union. The present paper will discuss how the ruling elites of these countries have been able to exercise undue influence over the judiciary to ultimately achieve the same goals as outwardly backsliding governments, that of entrenching their power and achieving economic and political gains. It will analyse how, by exploiting existing cleavages in the system, these governments have been able to evade supranational supervision, while at the same time challenging the EU legal order from within (as demonstrated by a recent Maltese case denying the fundamental doctrine of supremacy). Finally, the paper will evaluate the different ways in which EU institutions can deploy their legal toolbox to protect judicial independence and mutual trust before the domestic situation devolves into irreversible rule of law backsliding.