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The Rule of Law Crisis
This blog series will help you better understand what a rule of law crisis is and how it is dealt with in the EU
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- The Rule of Law CrisisThe Supreme Court of Poland issuing a resolution implementing the CJEU's A.K. and others judgment (Source: onet.pl) By Jakub Karczewski [1] In the previous blog post, we looked at the judgments of the Court of Justice of the European Union (CJEU) regarding a rule of law crisis in an EU Member State.[2] However, judgments of any court will not matter very much if they are not applied in practice and do not produce any real-world changes. One could ask, then, what real-world changes have followed from the judgments of the CJEU relating to a Member State’s rule of law crisis. Here is an overview of some of their main consequences. The lowering of the retirement age of judges The two Commission v Poland judgments (available here and here) of the CJEU concerned the lowering of the retirement age of judges. Both cases were brought before the Court by the European Commission, which claimed that Poland had violated its obligations arising from EU law (a so-called infringement procedure). In its judgments, the CJEU found, among other things, that the lowering of the retirement age of judges, accompanied by the discretionary power of the executive (the President of the Republic or the Minister for Justice) to consent to a judge continuing in his or her office beyond the newly set retirement age, did indeed violate Article 19 paragraph 1 of the Treaty on European Union (TEU). This provision obliges the EU Member States to provide effective legal protection in the fields covered by EU law. This includes the requirement that national courts which may adjudicate upon questions concerning the application or interpretation of EU law must be independent and impartial. In both cases, after the infringement procedures had been brought by the European Commission but before the CJEU issued its rulings, Poland changed the relevant legislation. The CJEU still adjudicated on the two cases, because it is obliged to assess the situation in a Member State as it was at the pre-trial stage. Nevertheless, the legislative changes adopted by Poland seem to have addressed at least some of the Article 19 paragraph 1 TEU violations found by the CJEU. The Supreme Court of Poland judges affected by the lowering of the retirement age from 70 to 65 years were either retained or reinstated, and the performance of their duties was deemed to have continued without interruption. The discretionary power of the President of the Republic to consent to a Supreme Court judge continuing in his or her office beyond the newly set retirement age was repealed. Finally, the new, lowered retirement age has been set to apply only to new Supreme Court judges, appointed to this court as of the beginning of 2019.[3] The situation is less clear as regards the ordinary courts judges affected by the lowering of the retirement age from 67 to 65 years for male judges and 60 years for female judges. On the one hand, the retirement age was fixed at 65 years for both sexes and the discretionary power of the Minister for Justice to consent to an ordinary court judge continuing in his or her office beyond the newly set retirement age was repealed. On the other hand, however, this power was vested in the National Council of the Judiciary, i.e. a Polish constitutional body which is responsible for nominating judges to be appointed by the President of the Republic. For two reasons, this does not seem to have resolved the problem indicated by the CJEU. Firstly, the independence of this body from the legislature and the executive has been undermined (see below). Secondly, in deciding whether to consent to an ordinary court judge continuing in his or her office beyond the newly set retirement age, the National Council of the Judiciary applies the same criteria that the CJEU has found to be too vague and unverifiable, such as “the needs resulting from the workload of individual courts”. Although it also applies new criteria, they are equally discretionary (for instance, “important public interest”).[4] The independence of the Disciplinary Chamber of the Supreme Court and the new mechanism of the appointment of judges The CJEU’s judgment in case A.K. v. Krajowa Rada Sądownictwa (the National Council of the Judiciary), and CP and DO v Sąd Najwyższy (the Supreme Court) (A.K. and others) dealt with, among other things, the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (the Charter). This provision establishes the right to an effective remedy before an independent and impartial court, for any person whose rights or freedoms guaranteed by EU law are violated. The case was referred to the CJEU by an adjudicating bench of the Labour and Social Insurance Chamber of the Supreme Court of Poland in a so-called preliminary reference procedure. In its judgment, the CJEU explained that Article 47 of the Charter does not allow a court which is not independent and impartial to adjudicate on cases which involve the application of EU law. It also gave guidance on how to assess whether a court is independent and impartial, and added that if a court turns out not to be independent and impartial, EU law requires that a case involving the application of EU law be heard by another court which meets these criteria. In response to this judgment, the adjudicating bench of the Labour and Social Insurance Chamber of the Supreme Court found the Disciplinary Chamber of the same court not to meet the criteria of independence and impartiality indicated by the CJEU. As a result, the adjudicating bench of the former chamber stated that the latter is not a court from the viewpoint of Article 47 of the Charter. Amongst many arguments, it indicated that the judges of the Disciplinary Chamber had been appointed on the application of the National Council of the Judiciary which, after the reforms introduced by Polish Parliament in 2017, is no longer independent from the legislature (Parliament) and the executive (the Minister for Justice). In consequence, contrary to what the Polish national law required, the adjudicating bench of the Labour and Social Insurance Chamber did not refer the case to the Disciplinary Chamber, but followed EU law (Article 47 of the Charter), disapplied the national law and ruled on the case itself. In doing so, it invoked one of the basic principles of EU law: when national law is not compliant with EU law, the latter takes precedence and the former must be disapplied. However, not every adjudicating bench of the Supreme Court of Poland was equally sensitive to the problem of the appointment of judges on the application of the reformed National Council of the Judiciary, nor to the practical consequences of these appointments. Moreover, many ordinary courts requested guidance on these issues from the Supreme Court. As a result, the Supreme Court issued a resolution in which it implemented the above-mentioned judgment of the CJEU in case A.K. and others. A resolution is a type of a Supreme Court ruling which legally binds all the adjudicating benches of the Supreme Court and is followed in practice by the ordinary courts. It is issued to explain certain provisions of law in order to unify the divergent practice of their application. In its resolution, issued by an adjudicating bench of 59 Supreme Court judges (all of the Supreme Court judges except for those appointed on the application of the reformed National Council of the Judiciary), the Supreme Court confirmed that the National Council of the Judiciary, after reforms, has become “a body subordinated directly to political authorities” (para 42 of the resolution). It pointed out, among other things, that the terms of office of the previous members of this body had been ended before they had expired, and that the new members were mainly chosen by a current parliamentary majority (21 out of 25 members were chosen by Parliament) in a non-transparent procedure. Moreover, as the Supreme Court stated, because the reformed National Council of the Judiciary “has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution of the Republic of Poland” (para 38 of the resolution). It also underlined that “courts which are no longer impartial and independent turn into adjudicating institutions which enforce the will of the governing group and the current parliamentary majority. Courts which are no longer impartial and independent cannot determine the truth and administer justice in the case of conflicts and disputes (…)” (para 14 of the resolution). As a result, the Supreme Court ruled, among other things, that if a Supreme Court judge, appointed on the application of the reformed National Council of the Judiciary, sits on an adjudicating bench, this bench is always unduly appointed or unlawful. This applies in a similar manner to equally affected adjudicating benches of the ordinary courts, with one major difference: it must be examined, on a case by case basis, whether the deficiencies in the appointment procedure of a judge result in the violation of the right to an independent and impartial court. This opens the possibility to quash at least certain judgments of the ordinary courts in cases where a judge appointed on the application of the reformed National Council of the Judiciary sat on the adjudicating bench. Neither the CJEU’s judgment in case A.K. and others, nor the two above-mentioned national rulings implementing this judgment were welcomed by the Polish political authorities. At the end of 2019, Polish Parliament enacted a statute which, among other things, prohibits courts from verifying whether the appointment of a judge was lawful and from questioning a judge’s power, derived from his or her appointment, to adjudicate. It also made it possible to punish judges, in disciplinary proceedings, for questioning the legitimacy of other judges’ appointments.[5] These legislative changes were widely seen as aiming to deprive the CJEU’s judgment in case A.K. and others and national judgments which implement it of any practical importance (to that effect see, for instance, the opinion of the Venice Commission). Moreover, the Polish political authorities initiated proceedings before the Constitutional Court of Poland in order to eliminate the practical meaning of the above-mentioned resolution of the Supreme Court implementing the CJEU’s judgment in case A.K. and others. It should not be a surprise that the political authorities turned to the Constitutional Court – its independence from them had already been effectively undermined (to that effect see, for instance, the European Commission’s proposal for the Council’s decision under the Article 7 TEU procedure). The Constitutional Court issued three rulings regarding the resolution of the Supreme Court. Two of them aimed to forbid the application of the resolution (see here and here) and the third one found it to violate the Constitution of Poland, the European Convention on Human Rights and, interestingly, the Treaty on European Union. It is worth mentioning that in all these cases, former MPs (until November 2019) of the governing political party, who had actively taken part in the legislative process reforming the National Council of the Judiciary, served as judges rapporteurs of the Constitutional Court. Moreover, persons who had been appointed as judges of the Constitutional Court unconstitutionally (to that effect see the rulings of the Constitutional Court issued before its independence was undermined: here, here and here), sat on the adjudicating bench of the Constitutional Court in all three cases. In addition, in the third of these cases, the Constitutional Court acted beyond the scope of its powers, since it has no power to adjudicate on other courts’ rulings (see Article 188 of the Constitution of Poland). It is still not entirely clear whether the actions undertaken by the Polish political authorities and supported by the rulings of the Constitutional Court of Poland, will effectively prevent the application of the CJEU’s judgment in case A.K. and others or the Supreme Court’s resolution which implements it. However, current practice is not very promising. For example, the Supreme Court judges who were appointed on the application of the reformed National Council of the Judiciary keep on adjudicating despite the resolution; an adjudicating bench composed of only such judges ruled on the validity of the presidential election held in Poland in 2020 and an equally composed adjudicating bench of the Disciplinary Chamber, in its very recent ruling, stated the CJEU’s judgment in case A.K. and others is not legally binding in the Polish legal order. Judicial cooperation in criminal matters – European arrest warrant Finally, the CJEU’s judgment in case Minister for Justice and Equality v LM concerned the impact of the rule of law deficiencies in an EU Member State on the functioning of the European arrest warrant (EAW) mechanism (on this mechanism, see the first blog post). The case was referred to the CJEU in a preliminary reference procedure by the Irish High Court, which had to decide on the execution of an EAW issued by a Polish court. In its judgment, the CJEU explained that a judicial authority of a Member State cannot execute an EAW and surrender the requested person (for example, a suspect) to another Member State, if there is a real risk that in the latter Member State the right of this person to an independent and impartial court, protected by Article 47 of the Charter, would be violated in his or her particular case. This is an exception to the principle of mutual recognition of decisions of public authorities (in the case of EAW – judicial authorities) between the EU Member States. In response to this judgment, the Irish High Court ruled that in the particular case of the suspect, the rule of law deficiencies in Poland would not result in violating his right to an independent and impartial court. In this regard, the High Court pointed out that the conditions to be met in order to refuse the execution of an EAW, as indicated by the CJEU, are not easy to be satisfied. This decision of the Irish High Court was later upheld by the Supreme Court of Ireland. Nevertheless, as the rule of law crisis in Poland is getting worse, this year some national courts of the EU Member States have refused to execute EAWs issued by Poland or have suspended their execution (for instance, the courts from Germany and the Netherlands). It remains to be seen in how many other cases national courts will find the criteria indicated by the CJEU in case Minister for Justice and Equality v LM to be met, and will refuse to surrender the requested person to a Member State with an ongoing rule of law crisis. Conclusion The judgments of the Court of Justice of the EU relating to a Member State’s rule of law crisis have produced some important real-world changes. In the case of Poland, the infringement procedures have “encouraged” its authorities to amend the relevant legislation concerning the retirement age of judges in a way that seems to have limited the extent of the rule of law deficiencies. Moreover, the answers provided by the CJEU to the questions of national courts have led the latter to undertake actions to protect the right of everyone to an independent and impartial court. However, the success of these actions may depend on who is asking – a national court of a Member State with an ongoing rule of law crisis or of a Member State which is free from such a crisis. The example of Poland shows that it may be very difficult for the former, even for the Supreme Court, to effectively protect the EU’s rule of law standards according to the CJEU’s judgments. This is because the political authorities of a Member State with an ongoing rule of law crisis, as well as the institutions influenced by these authorities, may attempt to prevent the effective application of the EU’s rule of law standards by national courts. As Poland has proved, this may go as far as attempting to deprive the CJEU’s judgments of any practical meaning and openly questioning their legally binding force. References [1] I would like to thank Robin Leick, Julia Prummer, and a person who preferred to stay anonymous for their helpful comments on earlier drafts of this blog post, as well as to Muhammad Saad Siddiqui for the linguistic revision of the text. The links provided in this blog post were last accessed on 29.9.2020. Most of them refer to the texts in English, but some of the texts are available only in Polish. [2] If you would like to learn more about the content of the judgments, but you do not feel ready yet to read the judgments in their entirety (all are linked in the main text), you may wish to read the press releases issued by the Court of Justice of the EU first (the order as the judgements appear in the main text): Commission v Poland (the retirement age of the Supreme Court judges); Commission v Poland (among other things, the retirement age of the ordinary courts judges); A.K. v Krajowa Rada Sądownictwa (the National Council of the Judiciary), and CP and DO v Sąd Najwyższy (the Supreme Court); Minister for Justice and Equality v LM. [3] See Article 1 points 4–6 and Article 2 para 1 of the Act of 21 November 2018 amending the Supreme Court Act (Journal of Laws of 2018, item 2507): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20180002507/O/D20182507.pdf. [4] See Article 1 point 4 subsection a) and b) of the Act of 12 April 2018 amending the Law on the ordinary courts, the National Council of the Judiciary Act, and the Supreme Court Act (Journal of Laws 2018, item 848): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20180000848/O/D20180848.pdf. [5] See, for instance, Article 1 points 19 and 32 of the Act of 20 December 2019 amending the Law on the ordinary courts, the Supreme Court Act, and certain other acts (Journal of Laws 2020, item 190): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20200000190/O/D20200190.pdf.Like
- The Rule of Law CrisisBy Robin Leick[1] EU values, as laid down in Article 2 of the Treaty on European Union (TEU), and, specifically, human rights, democracy and rule of law issues arise in many Member States of the EU. However, in only a few amongst them – especially Hungary and Poland – such issues seemed to have intensified in recent years to the extent that one may speak of EU values crises there.[2] Two indicators of this are the Article 7 procedures which have been initiated with regard to these two countries.[3] With a view to the rule of law, another indicator may be the several rule of law-related rulings of the Court of Justice of the EU (CJEU) during the last two years, which have mostly concerned Poland. The latter gives a reason for taking a closer look at the EU’s possibilities for a judicial handling of a rule of law crisis in a Member State. Thus, whereas last week’s blog post aimed to provide an overview of several important measures of the EU to prevent or tackle a rule of law crisis in a Member State, this blogpost will focus on the CJEU’s reactions to such crises. Its judgments are particularly important because of the CJEU’s role in clarifying EU legal principles, including the rule of law. Firstly, the most important procedural opportunities of the CJEU to decide on the rule of law cases concerning an EU Member State will be briefly described. Subsequently, both the controversial actions in question and the Court’s respective responses will be presented. The conclusion will summarise the most important findings and provide an outline to the next and final blogpost. 1. The CJEU’s opportunities to get involved with a rule of law crisis in a Member State There are several ways in which the Court of Justice may be faced with a rule of law crisis in a Member State. In particular, the European Commission[4] or another Member State[5] can bring a case of a Member State’s alleged violation of EU law to the Court of Justice.[6] Furthermore, any court or tribunal of a Member State may request a CJEU ruling concerning, in particular, the interpretation of the Treaties “if it considers that a decision on the question is necessary to enable it to give judgment” (Article 267 TFEU). As will be seen in the next paragraphs, both paths were followed in the rule of law debate concerning Poland. 2. The controversial legislative changes in Poland and the CJEU’s responses Since 2015, the Polish Parliament has adopted several legal acts in order to introduce controversial changes within the Polish justice system. Next to modifications regarding the composition and operation of the Polish Constitutional Court in 2015 and 2016,[7] the changes in the judiciary influenced in particular judicial independence and impartiality. The lowering of the retirement age of judges In 2017 and 2018, two statutes entered into force which, firstly, reduced the retirement age of ordinary courts’ judges from 67 to 65 (male judges) and 60 (female judges)[8] and, secondly, reduced the retirement age of Supreme Court judges from 70 to 65.[9] At the same time, the President of the Republic of Poland, in the case of Supreme Court judges, and the Minister for Justice, in the case of ordinary courts’ judges, were given discretionary power to consent to a judge continuing in his or her office beyond the newly set retirement age.[10] It seems worth mentioning that the application of the new retirement age affected almost one third of the Supreme Court judges.[11] In 2019, the Court of Justice of the European Union, in response to the applications submitted by the European Commission, ruled that Poland had – next to an infringement of the European principle of equal pay for male and female workers for equal work[12] – violated its obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” (Article 19 paragraph 1 TEU). This obligation must be seen in the context of the role of national courts within the EU: the realisation of its legal acts greatly depends on the national judiciary, which has to directly apply most of them. According to the Court, Article 19 TEU contains the Member States’ obligation to guarantee the independence and impartiality of judges in the fields covered by Union law[13] and serves as a “concrete expression to the value of the rule of law affirmed in Article 2 TEU”[14]. Independence and impartiality “require that the body concerned exercise its functions wholly autonomously, being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions, with due regard for objectivity and in the absence of any interest in the outcome of proceedings. The rules seeking to guarantee that independence and impartiality must be such that they enable any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it to be precluded.”[15] This includes, among other things, rules against disproportionate removal from office[16]. The CJEU considered the lowering of the retirement age of judges combined with discretionary power of the executive (the President of the Republic and the Minister for Justice) to freely decide, without “any objective and verifiable criterion”[17], whether a judge shall be allowed to remain in office for five or even ten more years (in the case of female judges of ordinary courts) to be surrounded by doubts as regards “the true aims of the reform”[18]. In particular, the new measures seemed “to exclude a pre-determined group of judges”[19]. The CJEU did not recognise both a legitimate objective that could justify these measures[20] and sufficient safeguards to protect the affected judges “from potential temptations to give in to external intervention or pressure”[21] in order to obtain an extension. As a result, the CJEU found both laws to violate Article 19 TEU and thus defended directly the EU’s rule of law standards in a Member State.[22] The introduction of a new disciplinary framework Again in 2018, Polish Parliament changed the rules governing disciplinary liability of judges in several ways. Among other things, it established a new Disciplinary Chamber at the Supreme Court. The status of this newly established Disciplinary Chamber at the Supreme Court raised doubts of another chamber of this very court – the Labour and Social Insurance Chamber. According to the newly amended national law, the former – and no longer the latter – was now empowered to decide on actions brought by several judges who were affected by the new retirement laws explained above.[23] The actions of these judges concerned questions regarding EU laws against age discrimination, and with them, the question of legal protection adequate to EU standards as set out in Article 47 of the Charter of Fundamental Rights of the European Union and of Article 19 TEU.[24] The Labour and Social Insurance Chamber thus referred several questions to the CJEU and asked for guidance in particular on the EU’s legal standard of independence and impartiality of the judiciary to be applied to the “composition and the circumstances and conditions surrounding the appointment of the judges called to sit on that court [in this case, the Disciplinary Chamber – R.L.]”[25]. The CJEU did not have the power to decide whether the new chamber was in breach of the EU’s principle of independence and impartiality of the judiciary.[26] However, it indicated several factors that – if read in conjunction – may be relevant for the Labour and Social Insurance Chamber to decide whether the new Disciplinary Chamber fulfils EU rule of law standards or not.[27] First, the CJEU gave its views on what might be a possibly problematic way of appointment for the judges of the Disciplinary Chamber. Here, the court referred in particular to the circumstances of the reform process of the institution nominating those judges, which seemed to have shown several conspicuous features and to have led to a greater influence of the Polish Parliament.[28] Second, the CJEU indicated that the context of the mode of operation of the new chamber would be important to determine its independence and impartiality. Relevant factors could be the newly granted exclusive and autonomous power of the new chamber to adjudicate upon retirement questions; this was all the more important as, at the same time, the above-mentioned new and controversial rules on retirement of Supreme Court judges were introduced.[29] Thus, the CJEU paved the way for the Polish courts themselves to enforce European rule of law standards. Moreover, in 2019 and 2020 the European Commission initiated two infringement procedures, as – among other things – it doubted the independence and impartiality of the above-mentioned Disciplinary Chamber and further criticised how disciplinary rules allow in particular “the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts”[30]. How the CJEU will decide these two cases remains to be seen. Implications on the cooperation within the EU The changes in the Polish justice system have also had implications on the intra-EU cooperation between individual Member States. In 2018, the Irish High Court expressed its concerns to the CJEU regarding the requested surrender of a suspect to Poland. The request was based on the EU Framework Decision on the European arrest warrant.[31] The CJEU recognised the power and the legal obligation of Member States’ courts to deny the surrender of suspects to Poland – as to any other Member State – if a two-step test is fulfilled. First, the executing judicial authority – in this case the Irish High Court – needs to undertake a general assessment on whether a breach of the fundamental right to a fair trial could happen in the requesting Member State – in this case Poland – due to systemic deficiencies concerning that Member State’s judiciary.[32] One possible indication for such deficiencies is the introduction of the early warning procedure of Article 7 paragraph 1 TEU.[33] If such indications exist, then the executing judicial authority has to make a case-by-case assessment of whether the suspected person will run the risk of having their fundamental rights violated.[34] As a result, the CJEU has given a prominent place to the rule of law, which may even lead to the cessation of cooperation between all the Member States and the Member State concerned and – possibly – persuade this Member State to turn back. 3. Conclusion To conclude, the judgments outlined above have shown that the Court of Justice of the European Union finds ways to react to specific rule of law shortcomings. For this, the Court uses in particular the obligation of every Member State to provide for an independent and impartial judiciary in the fields covered by Union law in order to address rule of law deficits in a Member State. However, the Court does not and cannot work on its own: it needs other actors, such as the European Commission or national courts and tribunals, to lodge cases on the basis of which it can defend EU values, such as the rule of law. The next and final blog post will tackle the question of whether the Court’s efforts to protect the rule of law in the Member States also bear fruit in reality. References [1] I would like to thank Vanessa Ackva, Jakub Karczewski and David Preßlein for their valuable comments on a previous version of this blog post as well as Muhammad Saad Siddiqui for the linguistic revision of the text. All linked websites were last accessed on 28 September 2020. I have already authored several smaller (partly also introductory) contributions to the debate on values and the rule of law, see in particular Robin Leick, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2020, “Fortgesetzte Sicherung europäischer Werte in Polen – die Macht der kleinen Schritte”, 291, which takes the CJEU’s case C-192/18 of 5 November 2019, Commission/Poland, ECLI:EU:C:2019:924, as an opportunity to briefly analyse both the judgment and the CJEU’s recent case law on the rule of law. [2] Using the term “Hungarian Human Rights crisis” early Gayeon Lee, “Three reasons why Article 7 TEU has never been used: Applying the Hungarian problem”, in: Anne Pieter van der Mei/Ellen Vos, The Institutional Functioning of the EU, EU Law Foundations, 2013-2014 Volume IV, Maastricht Centre for European Law, Maastricht University, p. 197 (203); using the term “Polish rule of law crisis” e.g. Robert Grzeszczak, Ireneusz Paweł Karolewski, “The Rule of Law Crisis in Poland: A New Chapter”, Verfassungsblog of 8 August 2018. [3]On this see the last week’s blog post. [4] Article 258 Treaty on the Functioning of the European Union(TFEU). [5] Article 259 TFEU. [6]For further information see the last week’s blog post. [7]See for this European Commission, Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374, recitals 7 et seq. [8]See CJEU, case C-192/18 of 5 November 2019 (note 1), paras. 15 et seq. [9]See CJEU, case C-619/18 of 24 June 2019, Commission/Poland, ECLI:EU:C:2019:531, paras. 9 et seq. [10] See CJEU, case C-619/18 of 24 June 2019 (note 9), paras. 11 et seq.; case C-192/18 of 5 November 2019 (note 1), para. 19, respectively. [11] See CJEU, case C-619/18 of 24 June 2019 (note 9), para 86. [12] See CJEU, case C-192/18 of 5 November 2019 (note 1), paras. 58-84; see on this also Robin Leick, NVwZ 2020, 291, 293 with reference to the EU’s value of equality. [13] Elaborated in particular in CJEU, case C-64/16 of 27 February 2018, Associação Sindical dos Juízes Portugueses, ECLI:EU:C:2018:117, paras. 41 et seq.; on the interaction between Art. 19 TEU and Art. 47 of the Charter of Fundamental Rights of the EU see Robin Leick, NVwZ 2020, 291 (292). [14] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 47; case C-192/18 of 5 November 2019 (note 1), para. 98. [15] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 108; similarly case C-192/18 of 5 November 2019 (note 1), paras. 109–111. [16] CJEU, case C-619/18 of 24 June 2019 (note 9), paras. 75–77; case C-192/18 of 5 November 2019 (note 1), paras. 112–114. [17] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 114; similarly, case C-192/18 of 5 November 2019 (note 1), para. 122. [18] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 87; as a result similarly case C-192/18 of 5 November 2019 (note 1), para. 127. [19] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 85; similarly case C-192/18 of 5 November 2019 (note 1), para. 127. [20] In case C-619/18 of 24 June 2019 (note 9), para. 96; C-192/18 of 5 November 2019 (note 1), paras. 113, 115, 130. [21] CJEU, case C-619/18 of 24 June 2019 (note 9), para. 112; case C-192/18 of 5 November 2019 (note 1), para. 120. [22] The practical effectiveness of the EU’s and especially the CJEU’s efforts will be evaluated in the next blog post. [23] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019, A. K. and Others/Sąd Najwyższy, ECLI:EU:C:2019:982, paras. 23–24. [24] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 51–52. [25] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), para. 131. [26] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), para. 132. [27] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 142, 152. [28] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 140–144; however, the fact that the majority of the members of the appointing institution are chosen by the legislature does not seem to be sufficient to rise doubts as for the independence of the appointed judges, see on the Judicial Appointing Committee of the German Land Hessen CJEU, C-272/19 of 9 July 2020, Land Hessen, ECLI:EU:C:2020:535, paras. 55, 58. [29] CJEU, case C-585/18, C‑624/18 and C‑625/18 of 19 November 2019 (note 23), paras. 146–148, 151. [30] CJEU, Application of case C-791/19 of 25 October 2019, Commission/Poland; see also European Commission, “Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland”, Press Release of 29 April 2020. [31] CJEU, case C-216/18 PPU of 5 July 2018, LM, ECLI:EU:C:2018:586, paras. 21–25 [32] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 68. [33] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 79; see on the Article 7 procedure the last week’s blog post. [34] CJEU, case C-216/18 PPU of 5 July 2018 (note 31), para. 68.Like
- The Rule of Law CrisisBy Robin Leick [*] In his blog post from 9 September 2020, Jakub Karczewski explained why a rule of law crisis in a Member State matters for the EU. Now we want to answer the question of what the EU institutions can do to prevent or tackle such a crisis. This blog post will take a look at seven different mechanisms – some pre-existing, others suggested – that can either prevent a rule of law crisis or deal with such an ongoing crisis.[2] This post begins with preventive mechanisms and then works its way through to possible punitive mechanisms, even though it is not always possible to draw a sharp line between the prevention and the handling of a crisis. 1. The initial screening procedures The first opening for the EU to secure certain rule of law standards within its Member States arises even before a state becomes an EU member. Before a European state is able to join the EU, it has to fulfil certain foundational requirements. It has to respect “the values referred to in Article 2”, including the value of the rule of law, “and [has to be] committed to promoting them” when applying for an EU membership (Article 49 of the Treaty on European Union (TEU)). In practise, the prospective Member State often conducts numerous preliminary talks with EU institutions in order to receive sufficient guidance.[3] After submission of the application, a thorough screening process starts.[4] Moreover, after the application or the accession the parties involved may take follow-up action if there is still room for improvement.[5]For instance, the EU Member States have accepted the accession of Romania and Bulgaria. However, jointly with the accessioning states it was decided to grant the European Commission the power to develop “appropriate measures” if Romania/Bulgaria breach (or seriously risk breaching) the functioning of theinternal market rule, and/or fail to properly implement the rules relating to mutual recognitionin criminal and civil matters.[6] Following on from that, the European Commission has created the so-called “mechanism for cooperation and verification” due to “remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies” in Romania and Bulgaria.[7]Based on country-specific benchmarks, such as the creation of “a more transparent and efficient judicial process”[8] or “measures to prevent and fight against corruption”[9], the Commission continuously reviews the developments in both countries and formulates explicit requests, such as the recommendation to repeal several Romanian emergency ordinances in 2012.[10] 2. The EU Justice Scoreboard Similar to the initial screening of prospect or new Member States, a constant review of the rule of law observance within all the Member States is essential. The EU Justice Scoreboard plays an important role here. It is an annual analytical and comparative report of the efficiency, quality and independence of all the national justice systems of the EU Member States.[11]The Scoreboard allows the EU to detect both national and EU-wide developments and “aims to assist the EU and Member States to improve the effectiveness of national justice systems”[12]. 3. Prospective Annual Rule of Law Report In addition to the EU Justice Scoreboard, the new European Commission, led by Ursula von der Leyen, implemented[13]another tool to collect and present information about the rule of law situation in the EU: The Annual Rule of Law Report. It is part of an intended “comprehensive European Rule of Law Mechanism”[14]. The report is based on consultations with relevant stakeholders, such as judges’ and journalists’ organisations, and provides a “country specific synthesis of significant developments in Member States”[15]. The first report will be published already this month.[16] 4. The Structural Reform Support Service Alongside monitoring, actual improvement of rule of law implementation is a key preventive tool. Many Member States strive for a better level of implementation of the EU’s values and in particular the rule of law. However, it often seems difficult for these Member States to realise these plans without any further help. Here, the Structural Reform Support Service (SRSS) comes into play. The SRSS is a service provided by the Directorate-General REFORM of the European Commission. With a budget of almost 223 million Euros for the years 2017-2020, the Directorate-General helps national public authorities to implement plans of structural improvement within individual countries.[17] The support can be targeted at widely diverse areas, including rule of law related tasks, such as anti-corruption measures or judicial reforms.[18] For example, the SRSS financed the exchange of French, Dutch and Slovenian judges in 2017 to support and advise, among other things, improvements within the Croatian administration of courts.[19] 5. The Rule of Law Framework and the Article 7 TEU procedures Whenever a rule of law crisis is being discussed, it is likely that the so-called Rule of Law Framework and the preventive and the sanctions procedures, as set out in Article 7 TEU (“Article 7 procedures”),[20] are mentioned. The Rule of Law Framework The so-called “Rule of Law Framework”, initiated by the European Commission in 2014, “precedes and complements [the] Article 7 TEU mechanisms”[21] and acts on three stages: “a Commission assessment, a Commission recommendation and a follow-up to the recommendation”[22]. Its aim is, inter alia, to “avoid the [Commission’s] use of Article 7 TEU mechanisms” by “finding a solution through a dialogue with the Member State concerned”.[23]However, if this dialogue remains unsuccessful, the Commission – as well as several other EU institutions without such preliminary procedure – can initiate one of the Article 7 procedures. The preventive procedure of Article 7, paragraph 1 TEU[24] In 2003, the preventive procedure of Article 7, paragraph 1 TEU was established, as a reaction to the Austrian case,[25] which will be further explained below. This mechanism allows one to determine “a clear risk of a serious breach by a Member State of the values referred to in Article 2 [TEU, including the rule of law – R.L.]”. It can be divided into three steps: • In step one, one third of the Member States, the European Parliament or the European Commission have the opportunity to issue a “reasoned proposal” that a clear risk of a serious breach of European values, including the rule of law, by a Member State does exist. Until today, this step has been taken twice. On 20 December 2017, the European Commission initiated the preventive procedure “to defend judicial independence in Poland”. This reasoned proposal was preceded by a multitude of the Commission’s recommendations concerning the rule of law situation in Poland, which were developed within the Rule of Law Framework of the Commission mentioned above.[26] On 12 September 2018, the European Parliament initiated the early warning procedure against Hungary also because of, among other things, the rule of law defects in this Member State. • In step two, “the Council shall hear the Member State in question and may address recommendations to it”, after obtaining the consent of the European Parliament. • In step three, “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 [TEU, including the rule of law – R.L.]”. So far, the Council has never declared such a risk. The sanctions procedure of Article 7, paragraphs 2 and 3 TEU[27] The sanctions procedure was established in 1999 and has remained almost unchanged in today’s Article 7, paragraphs 2 and 3 TEU. It can be further divided in two sub-procedures. According to the Article 7(2) procedure, the European Council[28], “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 [TEU, including the rule of law – R.L.], after inviting the Member State in question to submit its observations.” The Article 7(3) procedure follows on from that, by stating that the Council[29], “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.” Thus, while strong sanctions might apply, the criteria for EU institutions to act are very strict: it is not only necessary to detect a serious and persistent breach of the rule of law or another EU foundational value within a Member State, but also to act by unanimity in the European Council (with the exception of the state concerned) in order to initiate the so-called “nuclear option”[30]and to issue a sanction. In practise, both conditions do not seem to encourage the application of this mechanism. In 2001, the then fourteen EU Member States decided to apply controversial measures against Austriaoutside the EU’s legal framework and thus not to draw back to Article 7 TEU in order to oppose the new Austrian governmental coalition between the centrist Austrian People’s Party and the far-right Freedom Party.[31] In the aftermath, experts argued that an EU procedure with preventive objectives was needed to “[deal with] a situation similar to the […] situation in Austria […] within the EU”[32] in the future. Thus, this case contributed to the introduction of current Article 7, paragraph 1 TEU. Furthermore, from the words of the Hungarian Prime Minister Viktor Orbán with regard to Poland it has become clear that the unanimity requirement may invite certain Member States to protect other Member States which seem to breach the rule of law. In theory, Article 7 procedures thus provide for several far-reaching mechanisms to deal with upcoming or existing rule of law crises. In political reality, however, at least some of these tools seem difficult to use. 6. The infringement procedure before the Court of Justice of the EU Another way to tackle difficulties with the respect for the EU foundational values, including the rule of law, is the infringement procedure before the Court of Justice of the EU. This procedure can be initiated by the European Commission[33] or by any Member State[34] and is to be directed against Member States’ failures to fulfil EU obligations. The advantages of this procedure are its low initiation requirements and the power of the Court of Justice of the EU to impose a lump sum or penalty payment on the Member State concerned, if this Member State does not take the necessary measures to comply with the judgment of the Court. However, to my knowledge, the infringement procedure has never been used to directly tackle a violation of the rule of law itself, and it is highly disputed whether this is even possible from a legal perspective.[35] Nevertheless, in recent years, the procedure was frequently used to handle the violations of certain aspects of the rule of law, especially the obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” (Article 19 paragraph 1 TEU). This topic will be further discussed in the next blog post on 23rd September 2020. 7. Prospective budget conditionality As mentioned in the introductory blogpost, the most recent initiative to tackle rule of law shortcomings in a Member State is to make pay-outs from the EU budget and the EU coronavirus recovery fund (the so-called “Next Generation EU”) conditional upon respect for the rule of law. A proposal of the European Commission, as amended by the European Parliament, provides for the European Commission to adopt appropriate measures, such as the suspension of payments to a national government entity, if a generalised deficiency regarding the rule of law is detected. Following Article 2a of this amended proposal, a generalised deficiency shall be considered in particular in cases of an “endangering of the independence of judiciary” or a “failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities”. In its conclusions of its special meeting in July 2020, the European Council stated that “a regime of conditionality to protect the budget and Next Generation EU will be introduced. In this context, the Commission will propose measures in case of breaches for adoption by the Council by qualified majority. The European Council will revert rapidly to the matter.” This statement was seen to lead to confusion “over how the decision on a rule-of-law mechanism would be made, and which body or bodies would be responsible: whether, as Poland’s government claims, unanimity at the European Council will be required, or whether qualified majority voting in the Council of the EU is sufficient.”[36] Thus, only time will tell if and in which format the rule of law conditionality of pay-outs will be introduced. Conclusion EU institutions have various mechanisms at their disposal to prevent and tackle rule of law crises in the Member States. It begins with a thorough screening process before the accession and in the early stages of the membership of a new Member State. With a view to all Member States, the EU Justice Scoreboard and the prospective Annual Rule of Law Report create a factual basis for further initiatives. Such initiatives are ratherpreventive in nature, much like the Structural Reform Support Service. On the other hand, there are alsopunitive options, such as Article 7 TEU, the infringement procedure or – maybe in the future – a budget procedure. Whether all these options are capable of maintaining a sufficient rule of law standard within the EU Member States remains to be seen.[37] An earlier version of this article incorrectly made reference to Article 47 of the Charter of Fundamental Rights of the EU instead of Article 19 TEU, when referring to the ECJ infringement procedures under Point 6. We apologize for the error. References [*] I would like to thank Jakub Karczewski, David Preßlein and Quirin Weinzierl for their valuable comments on a previous version of this blog post as well as Muhammad Saad Siddiqui for the linguistic revision of the text. All linked websites were last accessed on 16 September 2020. [2] The choice of measures characterised in this blog post is partly inspired by the “EU’s Rule of Law Toolbox”, which also refers to further instruments, see https://ec.europa.eu/info/sites/info/files/rule_of_law_factsheet_1.pdf. [3] Christoph Ohler, in: Grabitz/Hilf/Nettesheim (eds.), Das Recht der Europäischen Union (The law of the European Union), 70thed. 2020, Artikel 49 EUV (Article 49 TEU), para. 17, 23. [4] European Commission, “EU Enlargement Fact Sheet”, p. 2, available at https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/publication/factsheet_en.pdf; Christoph Ohler (note 2), para. 32. [5] See Christoph Ohler (note 2), para. 31, 55-57, also regarding the so-called safeguard clauses, which are discussed below. [6] See Article 4, paragraph 3 of the Act of Accession of Romania and Bulgaria, OJ of 21/06/2005, L 157/11, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12005S/TTE&from=DE, in conjunction with Articles 37 and 38 of the Protocol Concerning the conditions and arrangements for admission of the republic of Bulgaria and Romania to the European Union, OJ of 21/06/2005, L 157/29, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12005SP&from=DE. [7] Recital 6 of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), OJ of 14/12/2006, L 354/56 and L 354/58, available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006D0928and https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006D0929. [8] Benchmark no. 1 for Romania and Benchmark no. 2 for Bulgaria, see Annex of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), note 6 above. [9] Benchmark no. 4 for Romania, similar Benchmark no. 5 for Bulgaria, see Annex of Commission Decisions 2006/928/EC (Romania) and 2006/929/EC (Bulgaria), note 6 above. [10] See further on this issue Radu Carp, “The Struggle for the Rule of Law in Romania as an EU Member State: The Role of the Cooperation and Verification Mechanism”, Utrecht Law Review 2014, 1 (9 et seqq.). [11] See European Commission, Press release from 10 July 2020, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1316. [12] European Commission, “2020 EU Justice Scoreboard - Questions and Answers”, available at https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1315. [13] The Annual Rule of Law Report was initiated in 2019 by the former European Commission, see European Commission, “Strengthening the rule of law within the Union - A blueprint for action”, COM(2019) 343 final, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0343&from=EN. [14] Ursula von der Leyen, “A Union that strives for more – My agenda for Europe, Political Guidelines for the next European Commission 2019-2024”, pp. 14-15, available at https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf. [15] European Commission, “The 2020 EU Justice Scoreboard”, Fact sheet July 2020, available at https://ec.europa.eu/info/sites/info/files/2020_eu_justice_scoreboard_factsheet.pdf. [16] European Parliament, “Legislative Train 8.2020”, available at https://www.europarl.europa.eu/legislative-train/api/stages/report/current/theme/a-new-push-for-european-democracy/file/2020-annual-rule-of-law-report. [17] Directorate-General for Structural Reform Support, “Helping EU Member States carry out growth-enhancing reforms” (2020), pp. 2, 4, available at https://ec.europa.eu/info/sites/info/files/srss-information-brochure_en_2.pdf. [18] Directorate-General for Structural Reform Support (note 16), p. 5. [19] See European Commission, “Three years Structural Reform Support Service” (2018), p. 14, available at https://ec.europa.eu/info/sites/info/files/report-on-the_3-years-of-the-srss_en_.pdf. [20] Following the structuring of the European Commission (note 2), p. 4. [21] European Commission, “A new EU Framework to strengthen the Rule of Law”, COM(2014) 158 final, p. 3, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0158&rid=9. [22] European Commission (note 20), p. 7. [23] European Commission (note 20), p. 7. [24] Designation similar to European Commission (note 2), p. 4. [25] See Ruffert, in: Calliess/Ruffert (eds.), EUV/AEUV Kommentar (TEU/TFEU Commentary), 5th ed. 2016, Artikel 7 EUV (Article 7 TEU) para. 2. [26] See European Commission, “Further strengthening the Rule of Law within the Union – State of play and possible next steps”, p. 3, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0163&from=EN. [27] Designation and classification inspired by European Commission (note 2), p. 4. [28] The European Council is an EU institution that consists of the Heads of State or Government (e.g. presidents, prime ministers) of the Member States and is responsible for defining the EU’s general political directions and priorities (Article 15 paragraphs 1, 2 TEU). The European Council should not be confused with the Council (see note 28 below). [29] The Council is another EU institution that consists of a representative of each Member State at ministerial level (e.g. ministers of educations if the Council discusses the education issues) and is responsible, jointly with the European Parliament, for exercising legislative and budgetary functions (Article 16 paragraphs 1, 2 TEU). The Council shall not be confused with the European Council (see note 27 above). [30] José Manuel Durão Barroso, “State of the Union address 2013”, available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_13_684. [31] For further information regarding the European opposition against the controversial Austrian coalition see Ian Black, “Europe rallies against Haider coalition”, The Guardian, 4 February 2000, available at https://www.theguardian.com/world/2000/feb/04/austria.ianblack. [32] See Report by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja, 8/9/2000, para. 117, available at https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AUT/INT_CCPR_NGO_AUT_89_8061_E.pdf. [33] Article 258 Treaty on the Functioning of the European Union(TFEU). [34] Article 259 TFEU. [35] Regarding the latter, see e.g. Kim Lane Scheppele, “Enforcing the basic principles of EU law through systemic infringement actions”, in Closa and Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (2016), pp. 105-132. [36] Maria Wilczek, “Poland celebrates EU budget success but confusion remains over rule-of-law conditionality”, Notes from Poland, 21 July 2020, available at https://notesfrompoland.com/2020/07/21/poland-celebrates-eu-budget-success-but-confusion-remains-over-rule-of-law-conditionality/. [37] For further reflections and initiatives, see the European Commission’s summary of the stakeholder contributions 2019, available at https://ec.europa.eu/info/sites/info/files/ruleoflaw_summary_150719_v3.pdf as well as a special Eurobarometer survey, available at https://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/87324.Like
What light has Brexit shed on the meaning and the effect of Article 50 TEU?
An award-winning essay by Julia Prummer, a member of the Cambridge European Horizons Solving EU's Polycrisis Team
This essay was also featured on the Magdalene College website. Julia was a postgraduate student on the LL.M programme at Magdalene from 2019-2020.
With this excellent essay, Julia won the 2020 United Kingdom Association for European Law (UKAEL) essay competition.
This year’s essay competition focused on the UK’s withdrawal from the European Union (EU). Participants were asked to discuss the meaning and effect Brexit has had on the interpretation of Article 50 of the Treaty on European Union (TEU), the clause allowing member states to withdraw the EU which was triggered by the UK on 29 March 2017.
Papers and Essays
All 4 of our 2019-2020 papers are in the process of being published and will be linked here after publication.
The global European Horizons IDEAS blog promotes civil discussion on contested issues of European and Transatlantic affairs. Quality publications in the Cambridge chapter's blog will be considered for publication.