Calling 112: does Luxembourg pick up the phone? Dutch and Polish courts’ satisfaction with the CJEU in rule of law and fundamental rights cases

National courts play a pivotal role in the EU legal order. This also holds true for the protection of rule of law and fundamental rights. Judges in Member States confronted with rule of law backsliding have turned to the CJEU for support. They, for example, asked about the consistency of a disciplinary chamber within the Supreme Court with EU law and even asked whether they themselves are independent or not. National courts in other Member States have also been confronted with the deteriorating rule of law situation in some States, especially in the context of the Area of Freedom, Security and Justice (AFSJ). This Area has made increasingly clear that the quality of the rule of law in a particular Member State also affects rule of law and fundamental rights protection in other Member States. Criminal, police and asylum cooperation, based on the principle of mutual trust and mutual recognition, is hampered by insufficient fundamental rights protection or cracks in the independence of the judiciary. Courts have thus send multiple references to Luxembourg to challenge the automaticity of the principle of mutual recognition (e.g. C 216/18 PPU). The CJEU has, by and large, acted as an institution safeguarding the rule of law and championing fundamental rights. Nonetheless, largely because of limitations inherent in the preliminary ruling procedure (i.e. inadmissibility of hypothetical questions or questions not involving EU law) and other important interests related to the Area of Freedom, Security and Justice (i.e. preventing impunity), the CJEU has not always picked up the phone. One wonders what the perspective of national court judges is after a 112 call. Do they consider the CJEU a useful ally delivering satisfactory answers? This paper analyses the interaction between national courts and the CJEU in relation to the rule of law in the broadest sense, including fundamental rights. It does so on the basis of a case law analysis of references from the Netherlands and Poland in the context of the Area of Freedom, Security and Justice in the last decade, coupled with interviews of judges involved in those references.