The Rule of Law in the European Union – Birth to Present

Author

Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586

Paolo Giusta [1]

 

Introduction

Since the Schuman declaration of 1950, the rule of law has been a cornerstone of the European integration process and of the EU legal order. This founding principle, progressively enshrined in the EU treaties, showed its vitality by acting as an attracting force for new Member States, not necessarily coming from democratic experiences before joining the EU. It also obliged the EU institutions to show creativity and determination when faced with rule of law’s crises in the Member States, until the recent proposal by the Commission to tie EU funding to respecting the rule of law in EU Member States.

The Frenchman who was at the origin of the European integration process, Jean Monnet, had had first-hand experience of the harshness of the two world wars, which had been the consequence of both the failure of the democratic process within national States and the inability of their governments to settle disputes otherwise than through war.

His experience of the period between the two wars, obtained as vice-secretary general of the League of Nations, the precursor of the United Nations, had convinced Monnet of the inability for sovereign States to self-regulate mutual relations constructively and of the need for a supra-national authority to tame, though law and common institutions, the “national egoisms” of national States [2]. By doing so, Monnet endeavoured to replace the law of the strongest, which had hitherto prevailed in the relations between European States, with the instruments of law, in particular with superior rules imposing upon the participating States. In the Treaty on the European Coal and Steel Community (ECSC), the negotiations of which Monnet had chaired, he envisioned institutions without precedent in the history of international law: the High Authority, “high” precisely because it was placed above the States and their vested national interests, endowed with the power to adopt binding decisions for the latter; the Court of Justice, a jurisdiction designed to ensure compliance with the Treaty and the legal rules that the ECSC institutions would adopt; and the Council, in which – precisely to avoid a country prevailing – the vote of little Luxembourg had almost the same weight as that of Germany or France.

In 1952, a sui generis political and legal construct was thus born, which not only represented the historic stroke of genius consisting in sharing sovereignty over resources – coal and steel – for which bloody wars had been fought, turning them into instruments of peace, a kind of fulfilment of the biblical prophecy that saw swords turn into ploughs; but also laid the foundations for a new legal order, in which the relations between the participating countries were regulated not by the use of force, but by common rules. Together with the ECSC, the rule of law among sovereign countries, i.e. those participating in the European integration project, was born.

In the language of some of founding States of the European Communities, this expression makes reference to the State: Rechtsstaat in the German legal tradition, état de droit in French, Stato di diritto in Italian. However, the European Union (EU) is not, and will probably never be, a State. The English lemma, rule of law, beautifully expresses the profound sense of the concept: it is the law that rules, and not something else. No one is superior to the law, neither an individual, nor the State and its bodies, nor an international organisation’s institution or Member State, nor a majority to the detriment of minorities or individual rights.

Law can, indeed, rule within an international organisation, such as the EU, without the need for a link to a State entity.

In the present article, we examine the development of the rule of law as one of the foundations of the European Union. First, we provide some content elements of the rule of law. Second, we explore the process whereby the rule of law became part of the constitutional values of the European Union. Third, application of the rule of law both to the EU itself and to its Member States will be dealt with. Fourth, we recall that compliance with the rule of law has become a prerequisite a candidate State to become a member of the EU. Last, we examine the possible remedies in the event of a breach of the rule of law, or the risk thereof, by a State which is already a member of the EU.

1. The Content of the Rule of Law

The rule of law finds its roots in the tradition of Western political thought since Aristotle, who stated that the rule of law was preferable to that of any individual [3].

Neither the founding texts nor the case-law of the Court of Justice of the EU offer a definition of the rule of law. The European Commission for Democracy through Law, known as the Venice Commission from the place where it meets, the Council of Europe’s consultative body on constitutional issues, has identified various components of the rule of law [4], based on the definition given by the United Nations[5] and the constitutional traditions of its Member States:

  1. Legality (Supremacy of the law).  
    Law must be followed. This requirement applies not only to individuals, but also to authorities, public and private. Public officials should act within the powers that have been conferred upon them. No person can be punished except for the breach of a previously enacted law. The law cannot be violated with impunity. Legality requires the process for enacting law to be a transparent, accountable and democratic one.
  2. Legal certainty.        
    This principle, which requires that legal rules are clear and precise and that the State applies them in a foreseeable and coherent manner, tends to guarantee the predictability of situations and legal relationships, as well as the way in which the law will be applied by the competent courts. The enforcement of final judgments must be guaranteed. The certainty of the law requires the State to respect the commitments it has made towards the citizens.
  3. Prohibition of arbitrariness.
    Although the administrations do have a degree of discretionary power in performing the tasks assigned to them, such power should not be exercised in a way that is arbitrary, unreasonable, or unfair.
  4. Right to a fair trial before independent and impartial courts, including judicial review of administrative acts.   
    Everyone should be able to challenge governmental actions and decisions adverse to their rights or interests. The judiciary, which is the guarantor of justice, must be independent and impartial. Independence means that the judiciary is free from external pressure, and is not controlled by the other branches of government, especially the executive branch. It should determine which laws are applicable to the case, resolve issues of fact, and apply the law to the facts, in accordance with a transparent and predictable interpretative methodology.
  5. Respect for human rights.  
    The supremacy of the law cannot come at the expense of human rights, among which those most obviously connected to the rule of law include the right to an effective remedy, the right to a fair trial, the presumption of innocence until guilt is established, the right to be heard.
  6. Non-discrimination and equality before the law.
    Non-discrimination means that the laws refrain from discriminating against individuals or groups. Any unjustified unequal treatment under the law is prohibited and all persons have guaranteed equal and effective protection against discrimination on any ground such as race, sex, language, religion, political opinion or any other situation. Equality before the law means that each individual is subject to the same laws, with no individual or group having special legal privileges.

The rule of law is not, therefore, a procedural or merely formal concept, which would allow public authorities, in the name of the law, to violate the rights of citizens, but has a moral content. It is, indeed, a substantial principle [6] that makes sure that all public powers “act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts” [7].

2. The Process of Constitutionalisation of the Rule of Law within the EU

The first legally binding recognition of the rule of law within the EU was achieved through the case-law.

In 1986, indeed, at a time when the European Communities still existed, and not yet the European Union, the Court of Justice defined the then European Economic Community (EEC) as “a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty” [8].

The expression used by the Court is due to the German Walter Hallstein, who was the first president of the EEC Commission between 1958 and 1967. Hallstein defined the EEC as a Rechtsgemeinschaft, characterised by three features: first, it is created by law, that is to say that it was born “through the spiritual and cultural strength of law and not from violence and subjugation”; second, the Community is a source of law, since, on the basis of the founding treaties, it has the competence to perform the tasks assigned to it through independent bodies, in the common interest; third, it is an autonomous legal order, guaranteeing both the legality of the acts of its institutions, and the effective protection of the rights of its citizens [9].

This was followed by the recognition, always on the basis of the case-law, of many of the components of the rule of law defined by the Venice Commission, mentioned above, including: the principle of the separation of powers [10]; the principle of legality (“the fundamental principle that, in a community governed by the rule of law, adherence to legality must be properly ensured”) [11]; the principle of equal treatment [12]; the principles of legal certainty and the protection of legitimate expectations, by virtue of which the effect of the Union’s rules must be clear and predictable for those who are subject to it [13]; the need for effective judicial protection of the rights that individuals derive from the Union legal order [14] and, in particular, the review, by and independent court, of the compatibility of EU institutions’ acts with the Treaties, the general principles of law and fundamental rights [15]; and protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal [16].

It is with the entry into force of the Treaty of Maastricht [17], on 1st November 1993, seven years after the Les Verts ruling, that the rule of law makes its entry into the founding texts of the EU, albeit still rather symbolically. The preamble to the Treaty on European Union was indeed limited to providing that the Member States confirm “their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”, while the only provisions which referred to the rule of law in the articles of the Treaty were those concerning the external dimension of the Union setting, as objectives of the Community policy on the sphere of development cooperation policy [18] and of the common foreign and security policy [19], to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.

The Treaty of Amsterdam [20], which entered into force on 1st May 1999, inserted a new reference to the rule of law as cornerstone of the EU, modifying Article F(1) [which the same Treaty of Amsterdam renumbered as Article 6(1), subsequently amended by the Treaty of Lisbon to become Article 2] of the Treaty on European Union then in force as follows: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.

The Treaty of Amsterdam, in the new Article F.1 (which became Article 7) of the Treaty on European Union, also provided for a sanctioning mechanism, inspired by Article 44 of the Draft Treaty establishing the European Union, known as the “Spinelli project” [21]. The current text of this provision [Article 7(2) to (4) of the Treaty on European Union (TEU)] provides:

“2.       The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 [in the numbering resulting from the Treaty of Lisbon, see text below], after inviting the Member State in question to submit its observations.

  1. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

  1. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.”

Finally, the Treaty of Amsterdam complemented the laconic provision of Article O the Treaty of Maastricht, which stated that “any European State may apply to become a member of the Union”: since the Treaty of Amsterdam, Article 49 TUE sets out the condition that this candidate State “respects the values referred to in Article 2” TUE, referred to above, “and is committed to promoting them”.

After the outcome of the Austrian elections of 1999, which led an extreme right-wing party, the FPÖ, to enter the government, the other then fourteen Members States endeavoured to activate the sanctioning procedure of Article 7; in vain, since no violation of the fundamental values of the Union had been committed, thus falling back on merely diplomatic sanctions. The lesson from the Austrian events led to further amendments introduced by the Treaty of Nice [22], which completed the sanctioning mechanism laid down by Article 7 TEU with a preventive component, through which the Council can “determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1)”, including, after Amsterdam, the rule of law, and address recommendations to this State. This provision, in its current wording [Article 7 (1) TEU], states what follows:

“1.       On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.”

In 2007, the Treaty of Lisbon [23] completed the process of constitutionalisation [24] of the rule of law in the EU legal system: the current Treaty on European Union [25], in fact, refers in the Preamble to the “cultural, religious and humanist inheritance of Europe, from which have developed the universal values”, among which the rule of law, and to the Member States’ “attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”. After Lisbon, Article 2 TEU provides that the EU “is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” [26].

The Treaty of Lisbon also confirmed, in Article 7 TEU, the sanctioning mechanism introduced by the Treaty of Amsterdam and the preventive mechanism of the Treaty of Nice.

Moreover, Article 6(1) TUE, in the text resulting from the Treaty of Lisbon, provides that “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union …, which shall have the same legal value as the Treaties”. The Preamble of the Charter mentions the rule of law as one of the foundations of the EU [27].

3. The Twofold Scope of the Rule of Law

It is true that Article 2 TUE is vague and that the operative content of the EU’s values is ambiguous [28]. Nonetheless, two sets of consequences result from the rule of law as a constitutional principle of the EU.

A first aspect concerns the fact that the EU itself “needs to comply with the basic, substantive values of constitutionalism: democracy, fundamental rights protection and, indeed, the rule of law” [29].

This aspect is relatively straightforward: the Court of Justice of the EU reviews the legality of acts of the EU institutions, and thus also ensures their compliance with the rule of law.

In a recent judgment, for example, the General Court annulled a decision of the European Parliament refusing to grant an EU citizen full access to documents concerning an ongoing legislative procedure. The General Court ruled that the principles of publicity and transparency, which, as we have seen, are constituent elements of the rule of law, are inherent to the EU legislative process. In particular, it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them and thus contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act [30].

The second aspect, concerning the implementation of the rule of law in the EU as a whole, is more multi-faceted. Indeed, the EU as a whole includes not only the EU institutions but also its Member States: implementing the rule of law at EU level encompasses, therefore, the fact that Member States respect the values laid down in Article 2 TEU when they are implementing EU law [31], as well as the instruments the European Union has (or does not have) at its disposal to ensure this.

The respect of the rule of law by the Member States, in fact, is closely linked to another fundamental principle, which is part of the constitutional order of the EU, even without being mentioned by the treaties [32], that of mutual trust between Member States. This principle derives from the case-law of the Court of Justice, which established that the legal structure of the EU “is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected” [33]. The Court stressed that “the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained” [34].

The principle of trust was already known in international law [35]. However, mutual trust between Member States takes on a completely new and more specific importance within the framework of the EU, being a keystone of the functioning of the Union itself. As the European Commission pointed out, “[m]utual trust among EU Member States and their respective legal systems is the foundation of the Union. The way the rule of law is implemented at national level plays a key role in this respect” [36]. In fact, in particular, but not only, within the “area of freedom, security and justice without internal borders”, each State, as well as every EU citizen, must be able to trust that each of the Member States respects the rule of law. To preserve this trust, “all Member States need to be concerned if the rule of law principle is not fully respected in one Member State” [37]. This is the meaning of Article 49 TEU, which requires the respect of this value as a condition for EU membership, as well as of Article 7, which makes it possible to verify if that is the case with regard to the States that are already members of the EU.

4. The Attractive Force of the Rule of Law

The European Union, as a political and legal order based on the rule of law, was, in a very natural way, the destination, in a sort of homecoming, for States that had recovered democracy after experiencing dictatorships: Greece (which joined the then European Communities in 1981), as well as Spain and Portugal (1986).

In 1993, in anticipation of the accession of countries of Central and Eastern Europe (CEECs), which had had recently regained independence from Soviet domination or influence, the EU decided to establish a binding framework of conditions which, since then onwards, each candidate country for EU membership would have to fulfill, known as “Copenhagen criteria” [38]. Regarding the rule of law, according to these obligations, the judiciary must be independent and impartial, the government and its officials and agents be accountable under the law, and the process by which laws are prepared, approved and enforced be transparent, efficient, and fair.

The keystone of the accessions to the EU of 2004 (eight CEECs), 2007 (Bulgaria and Romania) and 2013 (Croatia) was defined as being “freedom under the law, and freedom guaranteed by law” [39]. The effort to adhere to the Copenhagen criteria represented, for these States, a radical transformation, not only of their economies, but also of their political and juridical structures. Also thanks to an impressive assistance programme implemented by the European Commission in order to accompany the transformations necessary for the future Member States to meet the standards of the rule of law, new constitutions, and constitutional courts, were established, as well as new measures to strengthen the independence of ordinary courts [40]. Each candidate State is also required, at an early stage in accession negotiations, to take measures to combat organised crime and corruption [41]. Interestingly, the constitutions of ten of the eleven CEECs that have joined the EU since 2004 explicitly refer to the principle of the rule of law or, more often, to the principle of a State governed by law [42].

Compliance with the rule of law is a fundamental requirement for a candidate State to become a member of the EU. Once again, this is not a merely formal criterion, since the European Commission systematically monitors such compliance by candidate countries and reports annually on how each of them implements the rule of law [43].

The prospect of accession to the EU thus proved “a powerful incentive to achieve radical transformations” in many countries, a process that “seems to have neither any precedent in relations between States nor any counterpart elsewhere in the world today” [44]. As a result of this process, the EU Member States are anchored to the principle of the rule of law, irreversibly. In this way, it is the EU as a whole that is, today, better equipped to respond to the challenges posed by the rule of law.

5. Threats to the Rule of Law and Possible Remedies

Despite the progressive constitutionalisation of the rule of law principle in the EU legal order and the efforts made by the new Member States to ensure compliance with this principle at the time of accession, critical situations have emerged in several of these States, and could possibly emerge – in the short or long term – also in founding Member States of the EU or in Member States of more ancient adhesion.

Two types of situations can be distinguished [45]. Firstly, if a Member State breaches the rule of law when acting within the scope of EU law, the situation is very similar to that described above with regard to the acts of the EU institutions. In this first type of cases, legal enforcement mechanisms are laid down in the Treaties, such as the infringement procedure of Article 258 of the Treaty on the Functioning of the European Union, whereby the Commission can bring a State before the Court of Justice of the EU, but only for specific violations of concrete EU law obligation. Now, as we have seen, Article 2 TEU is neither specific nor concrete and the Commission will not be able to invoke such a provision, alone, to begin an infringement procedure against a Member State: for the Commission to initiate such an action, the Member State concerned must have violated one of the obligations incumbent on it by virtue of a specific EU law provision other that Article 2 TUE.

Different is the situation of systemic deficiencies or of a generalised deterioration of the rule of law system in a Member State, provided for in Article 7(2) TUE, which does not entails the violation of specific obligations deriving from EU law, or of the existence of a clear risk of a serious breach by a Member State of the rule of law, provided for in Article 7(1) TUE.

In this second type of situations, EU law does not impose any clear standard or accurately defined obligation on them. Hence, the Commission cannot challenge such a situation through an infringement procedure. Yet, at least in theory, the EU institutions can use, rather than legal remedies, the preventive and sanctioning mechanisms provided for in Article 7 TEU described above. In practice, however, actual use of these instruments, eminently political by their nature, as demonstrated by the overriding role played by the European Council and the Council [46], and by the need for an enhanced majority or unanimity among Member States to activate such mechanisms, is extremely difficult. It is therefore not surprising that, as of today, the Article 7 procedure has never been used.

For this reason the Commission, in its role of “guardian of the treaties” and therefore also of the principle of the rule of law enshrined in the TUE and in the Charter of Fundamental Rights of the European Union, has laid down a new mechanism, the “EU rule of law framework”, as an alternative to resorting to the “nuclear option” [47] of Article 7 TEU. This framework, put forward in 2014 [48], pursues the objective of addressing and resolving a situation where there are clear indications of a systemic threat to the rule of law in a Member State [49] through a dialogue, at top political level, between the Commission and the Member State concerned. This dialogue is carried out in three stages: the Commission assessment, where the latter substantiates its concerns and gives the Member State concerned the possibility to respond; the Commission recommendation, based on the outcome of such a dialogue; and the follow-up to this recommendation, consisting in a Commission monitoring, which can be based on further exchanges with the Member State concerned. The new framework, therefore, does not include the intervention of the European Council and the Council (the Commission keeps these two institutions, as well as the Parliament, informed), thus avoiding the main obstacle to using the Article 7 procedure.

The Commission has activated the EU rule of law framework for the first time in 2016 in response to systemic threats to the independence of the judiciary, including the constitutional court, existing in Poland [50], as had been ascertained by the Venice Commission. Indeed, the latter concluded that the series of legislative acts, adopted or proposed by Poland, “puts at serious risk the independence of all parts of the judiciary in Poland” [51]. The dialogue undertaken with the Member State in question did not make it possible to dispel the systemic threats established by the Commission, which therefore concluded the stages of the EU rule of law framework with the presentation of a reasoned proposal in order to trigger the preventive mechanism of Article 7(1) TEU [52].

More recently, the Commission has added to the abovementioned mechanisms, the Article 7 TEU procedure and the EU rule of law framework, which, as explained, are deemed to be of a political nature, a proposal for a mechanism of a financial nature. In fact, on 2nd of May, 2018, in order to make the pressure on a Member State more tangible, so that the latter remedies rule of law deficiencies, the Commission took up a recommendation from the European Parliament [53] and adopted a bold proposal within the envisaged EU multiannual financial framework (MFF) 2021-2027. Arguing that generalised deficiencies as regards the rule of law in the Member States can impair or threaten to impair sound financial management or the protection of the financial interests of the Union, the Commission proposed that, in the event of such generalised deficiencies, it must be possible to “draw consequences” (i.e. suspend, reduce or restrict access to EU funding) “proportionate to the nature, gravity and scope of the generalised deficiencies in the rule of law” [54]. This proposal, such as the MFF as a whole, must be unanimously approved by the Member States, and it is therefore far from sure that it will be adopted. The message will remain, however, that the Commission remains attentive and innovative in monitoring and pursuing possible violations of the rule of law in the Member States.

Finally, apart from the political mechanisms and the financial proposal described above, threats to the rule of law in and by Member States could possibly be addressed through purely juridical means. As we have seen in Section 3 above, mutual trust between Member States is essential to the proper functioning of the area of freedom, security and justice laid down in Title V TUE. One of the components of this area is judicial cooperation in criminal matters [55] and Article 82 TEU states in this respect that “[j]udicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions” [56]. Indeed, the principle of mutual recognition “which is the ‘cornerstone’ of judicial cooperation in criminal matters, is itself founded on the principle of mutual trust between the Member States” [57].

Member States’ threats to the EU core values, notably of the rule of law, in particular by hampering the independence of the judiciary, could have as a consequence to make it impossible for a court of one Member State to have trust in the capacity of the judiciary of another Member State, where the rule of law is under threat, to produce judgments and judicial decisions worthy of mutual recognition. In this case, an executing judicial authority in a Member State could just refuse to execute a European arrest warrant issued by a Member State where there is doubt that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial established by Article 47 of the Charter because the system of justice itself of the latter is no longer operating under the rule of law.

This is precisely the core of a request for a preliminary ruling from the High Court of Ireland, on which the Court of Justice of the UE ruled on 25 July 2018[58]. In this case, the request from the High Court related to the circumstances in which the executing judicial authority may refrain from giving effect to a European arrest warrant issued by Polish courts, on account of the risk of breach, if the requested person is surrendered to the issuing judicial authority, of the fundamental right to a fair trial before an independent tribunal. This guarantee, as we have seen, is one of the components of the rule of law. The Court of Justice ruled that the executing judicial authority must, as a first step “assess, on the basis of material that is objective, reliable, specific and properly updated concerning the operation of the system of justice in the issuing Member State”, such as that set out in a reasoned proposal of the European Commission adopted pursuant to Article 7(1) TEU, “whether there is a real risk, connected with a lack of independence of the courts of that Member State on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached” (paragraph 61). This assessment aims at ascertaining whether the standards set out by the second paragraph of Article 47 of the Charter, i.e. the requirements that the courts be independent (autonomous from external interventions or pressure) and impartial (vis-à-vis the parties to the proceedings), are complied with (paragraphs 62 to 66).

In this respect, the reasoned proposal addressed by the Commission to the Council on 20 December 2017, mentioned above, may well not be sufficient to trigger the preventive mechanism provided for in Article 7 TEU; yet, it is, as the Court observes in paragraph 61 of its decision, a “particularly relevant” element to be taken into account by the executing judicial authority for the purposes of its assessment.

As a second step, if “the executing judicial authority finds that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State’s courts,” that authority must “assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk” (paragraph 68). To this purpose, the executing judicial authority should enter into a dialogue with the issuing judicial authority, so that the latter is in a position to provide any objective material on any changes concerning the conditions for protecting the guarantee of judicial independence in the issuing Member State, material which may rule out the existence of that risk for the individual concerned (paragraphs 76 and 77).

If the information which the issuing judicial authority has sent to the executing judicial authority does not lead the latter to discard the existence of a real risk that the individual concerned would suffer in the issuing Member State a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, the executing judicial authority must refrain from giving effect to the European arrest warrant relating to him (paragraph 78). In this case, it is not a choice, but an obligation for the executing judicial authority to refrain from executing a European arrest warrant.

This landmark judgment will have as a consequence that, each time an executing judicial authority considers that there is a real risk that the individual concerned will suffer in the issuing Member State a breach of his fundamental right to an independent tribunal and to a fair trial, and therefore refrains from giving effect to the European arrest warrant relating to him, the issuing Member State could possibly be excluded from judicial cooperation in criminal matters in the Union, a key component of the area of freedom, security and justice. This entails, on the one hand, that the action of the EU judicial system, composed by both national and EU courts, may indeed be a more effective instrument to exert pressure on a Member State putting at risk some fundamental aspects of the rule of law than the political mechanism laid down by Article 7 TEU and, on the other hand, that Members States may possibly be more effective in (horizontally) mutually supervising themselves in regard to the respect for the rule of law than the EU institutions (vertically) supervising them.

Conclusion

Nearly seventy years ago the vision of the founding fathers of the European integration process managed to replace the law of the strongest with the rule of law. Along the road travelled by the European Union, between light and shadow, in these decades, the rule of law has been a cornerstone of the construction of the common home of 500 million Europeans. The institutions of the Union and the States that compose it have taken the irrevocable commitment to respect the rules of democracy, fundamental rights and, indeed, the rule of law.

Yet, threats to the rule of law may occur in EU Member States. These threats, however, are unlikely to lead to situations, such as those we observe just outside the EU borders, of “illiberal democracies”, i.e. political regimes which are still formally democratic, but are characterised also by forms of substantial authoritarianism on the part of the public authorities. Unless radical changes happen, which are unpredictable at the present time, the substantive content of the rule of law within the EU, the commitment of the EU institutions, including the Commission, as the guardian of the treaties, and the Court of Justice, which guarantees that EU law is complied with, and the peer pressure exercised by the other Member States make it impossible for the political systems of EU Member States to evolve towards a State structure that no longer respects the rule of law.

This may not be everything, yet it is a tremendously valuable achievement, which needs to be preserved with the active participation of all EU citizens, the ones that benefit, in fine, of the proper functioning of the rule of law in the EU and its Member States. Indeed, the ultimate purpose of the rule of law is to protect citizens’ liberties and rights, in this polity unique in the world which is the European Union.

 

 

***

 

 

[1] The author is a civil servant of the European Union, currently working as legal secretary to a judge of the General Court of the European Union. The opinions expressed in this document are the sole responsibility of the author.

[2] V. Skouris, Die Europäische Union als Recht- und Wertegemeinschaft, in A. Bruns (ed.), Bitburger Gespräche in München, Band 6: Rechtsordnungen im transatlantischen Wettbewerb, Gesellschaft für Rechtspolitik, Trier, and Institut für Rechtspolitik an der Universität Trier, 2016, pp. 149-166, here p. 149.

[3] Aristotle, Politics, book 3, part XVI (Kessinger Publishing, 2004), quoted by L. Pech, The Rule of Law as a Constitutional Principle in the European Union, Jean Monnet Working Paper 04/09, NYU School of Law, New York, 2009, p. 69.

[4] European Commission for Democracy through Law, Report on the Rule of Law, Adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011), http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e, pp. 10-13.

[5] “The ‘rule of law’ […] refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, S/2004/616, 23 August 2014,
http://www.securitycouncilreport.org/un-documents/document/PCS%20S%202004%20616.php, par. 6.

[6] Cfr. W. Schroeder, The European Union and the Rule of Law – State of Affairs and Ways of Strengthening, in W. Schroeder (ed.), Strengthening the Rule of Law in Europe. From a Common Concept to Mechanisms of Implementation, Hart Publishing, Oxford 2016, pp. 3-34, here p. 26: “it is well established that the rule of law does not only have a formal, but also a material side and includes the substantive claims for justice and the prohibition of arbitrariness.”

[7] European Commission, Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law, COM(2014) 158 final of 11 March 2014, p. 4. This Commission statement is based on the case-law not only of the Court of justice of the EU, but also on that of the European Court of Human Rights, “which gives the rule of law a substantive nature by establishing that it is a concept inherent in all articles of the [European Convention on Human Rights] (see for example ECtHR Stafford v United Kingdom, 28 May 2001, para 63)” (Ibid.)

[8] Judgment in case 294/83 Parti écologiste “Les Verts” v Parliament EU:C:1986:166, para. 23.

[9] W. Hallstein, Die Europäische Gemeinschaft, 19795, Econ-Verlag, pp. 31-35, quoted by V. Skouris, Die Europäische Union als Recht- und Wertegemeinschaft, pp. 154-155.

[10] Judgment in case C-279/09 DEB EU:C:2010:811, para. 58.

[11] Judgment in case C-496/99 P Commission v CAS Succhi di Frutta EU:C:2004:236, para. 63.

[12] Judgment in case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission EU:C:2010:512, para. 55.

[13] Judgment in joined cases 212 to 217/80 Meridionale industria salumi EU:C:1981:270, para. 10.

[14] Judgment in case C-50/00 Unión de Pequeños Agricultores v Council EU:C:2002:462, para. 39.

[15] Judgment in case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council EU:C:2013:625, para. 91.

[16] Judgment in joined cases C-46/87 and 227/88 Hoechst v Commission EU:C:1989:337, para. 19.

[17] Treaty on European Union, signed in Maastricht on 7 February 1992, Official Journal of the European Communities, C 191 of 29 July 1992, p. 1.

[18] New Article 130u(2), which became Article 177(2) as renumbered by the Treaty of Amsterdam, of the Treaty establishing the European Community.

[19] Article J.l of the Treaty on European Union, which became Article 11 as renumbered by the Treaty of Amsterdam.

[20] Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, Official Journal of the European Communities, C 340 of 10 November 1997, p. 1.

[21] Draft adopted by the European Parliament at its plenary session of 14 February 1984, Official Journal of the European Communities, C 77 of 19 March 1984, p. 33. Such article provided for, “in the event of serious and persistent violation of democratic principles or fundamental rights by a Member State”, the possibility for the European Council to take measures “suspending the rights deriving from the application of part or the whole of the Treaty provisions to the State in question and its nationals without prejudice to the rights acquired by the latter, which may go as far as suspending participation by the State in question in the European Council, the Council of the Union and any other organ in which that State is represented as such”. The connection between the Spinelli project and the sanctioning mechanism of the Treaty of Amsterdam is highlighted by E. van Rijckevorsel, L’Union européenne face à ses valeurs et le nouveau cadre de la Commission européenne pour l’état de droit, in: G. Willems, S. Wattier e A. Hoc, Human rights as basis for reevaluating and reconstructing the Law, Larcier, Bruxelles 2016, p. 283. A similar sanctioning mechanism is also provided for in Article 8 of the Statute of the Council of Europe.

[22] Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed at Nice, 26 February 2001, Official Journal of the European Communities, C 80 of 10 March 2001, p. 1.

[23] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Official Journal of the European Communities, C 306 of 17 December 2007, p. 1.

[24] Article 2 TEU “represents the essential core of the never-interrupted ‘constitutional process’ of the European Union” (T. Russo, Articolo 2 TUE, in C. Curti Gialdino (ed.), Codice dell’Unione europea operativo. TUE e TFUE commentati articolo per articolo, Gruppo Editoriale Simone, Napoli 2012, p. 53.

[25] Consolidated version of the Treaty on European Union, Official Journal of the European Union, C 202 of 7 June 2016, p. 13.

[26] It is interesting to note that the “principles” of the Treaty of Amsterdam have become “values” in the TEU resulting from the Treaty of Lisbon, indicating that the Member States recognise the moral nature, rather than the mere legal one, of the rule of law and of the other foundations of the Union.

[27] Charter of Fundamental Rights of the European Union (Official Journal of the European Communities, C 364 of 18 December 2000, p. 1).

[28] C. Hillion, Overseeing the Rule of Law in the EU. Legal Mandate and Means, in C. Closa and D. Kochenov (edd.), Reinforcing Rule of Law Oversight in the European Union, Cambridge Univerity Press, Cambridge, 2016, pp. 59-81, here p. 67.

[29] M. Claes and M. Bonelli, The Rule of Law and the Constitutionalisation of the European Union, in W. Schroeder (ed.), Strengthening the Rule of Law in Europe, cit., pp. 265-289, here p. 271.

[30] Judgment in case T-540/15 De Capitani v Parliament EU:T:2018:167, paras. 78, 80 and 81.

[31] Cf. Article 51(1) of the Charter of Fundamental Rights of the European Union: “The provisions of this Charter are addressed … to the Member States only when they are implementing Union law”.

[32] The principle of “mutual confidence” between Member States was provided for by Article I-42 of the Treaty establishing a Constitution for Europe (Official Journal of the European Union, C 310 of 16 December 2004, p. 1). Said Article I-42 was among the provisions relating to the area of freedom, security and justice. This Treaty, however, never entered into force.

[33] Opinion 2/13 EU:C:2014:2454 para. 168.

[34] Ibid., para. 191.

[35] In its judgments of 20 December 1974 in the Nuclear Tests I case, the International Court of Justice stated that “[t]rust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential” [Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, para. 46].

[36] European Commission, A new EU Framework to strengthen the Rule of Law, cit., p. 2.

[37] Ibid., p. 5.

[38] European Council, Presidency conclusions, Copenhagen, 21-22 June. See https://ec.europa.eu/neighbourhood-enlargement/policy/policy-highlights/rule-of-law_en.

[39] By the former advocate general of the Court of Justice of the EU Sir Francis Jacobs, The European Union and the Rule of Law, Holdsworth Club Presidential Address, University of Birmingham 2008 https://www.birmingham.ac.uk/Documents/college-artslaw/law/holdsworth-address/holdsworth07-08-jacobs.pdf, p. 14.

[40] Ibid., p. 15.

[41] European Commission, Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main Challenges 2013-2014, COM (2013) 700 of 8 November 2013, p. 2.

[42] L. Pech, The Rule of Law as a Constitutional Principle in the European Union, cit., pp. 28-29.

[43] European Commission, Understanding Enlargement. The European Union’s enlargement policy, Publications Office of the European Union, Luxembourg 2011, p. 12.

[44] F.  Jacobs, The European Union and the Rule of Law, cit., p. 15.

[45] Cfr. M. Claes and M. Bonelli, The Rule of Law and the Constitutionalisation of the European Union, cit., pp. 280-281.

[46] These institutions are those which, in the institutional system laid down by the treaties, represent the Member States and their interests.

[47] European Commission, A new EU Framework to strengthen the Rule of Law, cit., p. 2. According to D. Kochenov, Busting the myths nuclear: A commentary on Article 7 TEU, EUI Working Paper LAW 2017/10, European University Institute, Badia Fiesolana, 2017, however, it is misleading to refer to a “nuclear option”, an expression suggesting that Article 7 TUE cannot really be activated to solve “the rule of law crisis of the European Union”. According to the author, this crisis must be precisely addressed using the instruments of EU law.

[48] European Commission, A new EU Framework to strengthen the Rule of Law, cit.

[49] Ibid., p 2.

[50] Commission Recommendation (UE) 2016/1374, of 27 July 2016, regarding the rule of law in Poland, Official Journal of the European Union, L 217 of 12 August 2016, p. 53.

[51] Venice Commission, Opinion on Poland, Adopted by the Venice Commission at its 113th Plenary Session (8-9 December 2017), para.131. This document is the most recent of a series of opinions on Poland adopted by the Venice Commission.

[52] Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland. Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM(2017) 835 final of 20 December 2017.

[53] European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), para. 20.

[54] European Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, A Modern Budget for a Union that Protects, Empowers and Defends. The Multiannual Financial Framework for 2021-2027, COM(2018) 321 final of 2 May 2018, p. 4.

[55] Judicial cooperation in criminal matters, provided for in Chapter 4 of Title V TUE.

[56] “The concept of mutual recognition draws on the idea that in regard to certain factual circumstances the authorities of a Member State have to accept the legal acts of another Member State as binding, thus treating them as if these factual circumstances had been decided upon by the Membet State’s own legal order” (W. Schroeder, The European Union and the Rule of Law – State of Affairs and Ways of Strengthening,cit. p. 16). One field of application of this principle is the European arrest warrant within the area of freedom, security and justice.

[57] Opinion of Advocate General Tanchev in case C-216/18 PPU Minister for Justice and Equality ECLI:EU:C:2018:517, para. 54.

[58] Judgment in case C-216/18 PPU Minister for Justice and Equality ECLI:EU:C:2018:586.

Hristo Kirilov

Реферандер в Общия съд на Европейския съюз.