(Image from European Commission Facebook Page)

By Jakub Karczewski[1]

When a rule of law crisis emerges in an EU Member State, one could ask what the EU has to do with it. Why would it matter for the EU and its institutions? Isn’t it just an internal problem that should be dealt with by the Member State concerned?

For three main reasons, a rule of law crisis in a Member State is not just a problem of that Member State. It affects other Member States, the EU and its institutions as well. Here is why:

First: the rule of law is one of the foundational values of the EU that all the Member States share and must respect

The rule of law is one of the foundational values of the EU, listed in the Treaty on European Union (see Article 2 TEU), i.e. in one of the two Treaties which constitute the basis of the EU legal order (“the constitution” of the EU). A country which wishes to become a Member State of the EU must respect these foundational values (see Article 49 TEU) and, once it has joined the EU, must continue to observe them. This observance stems from, amongst other sources, the legal obligation of every Member State to abide by EU law, including the Treaties, as well as the values on which the EU has been built. In addition, some elements of the rule of law are enshrined in other provisions of EU law (see below), which every Member State is also, of course, legally obliged to respect.

The rule of law is a complex concept.[2] Part of the concept refers to the idea that all public authorities are bound by the law and must abide by the law, i.e. they can only do what the law authorises them to do, and in a manner that is prescribed by the law. In other words, they cannot do just what they want or find useful – all their actions must always be within the legal framework. The judiciary is the branch of the government which is responsible for verifying that the public authorities act lawfully and not arbitrarily. It reviews, for instance, the way the police or other public administration institutions act. To perform its task effectively, the judiciary must be independent from other branches of the government (the legislature, e.g. the parliament, and the executive, e.g. ministers and public administration) and from other external parties (e.g. lobbyists or interest groups), so that they cannot influence its judgments. Judicial independence would not be guaranteed if, for instance, a minister were given the power to punish judges for the way they adjudicate. The courts’ judgments must be based only on the law – otherwise, the law would not rule.

The independence of the judiciary is protected by EU law not only as a part of the rule of law enshrined in Article 2 of the Treaty on European Union, but also by other provisions that the Member States must respect. Above all, it is enshrined in Article 19 of this Treaty, which obliges the Member States to provide effective legal protection in the fields covered by EU law. As explained by the Court of Justice of the EU, this means that national courts which may adjudicate upon questions concerning the application or interpretation of EU law must be independent and impartial (this issue will be elaborated on in the third post of this series). Moreover, the Charter of Fundamental Rights of the EU 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 (see Article 47 of the Charter).

The independence of the judiciary has been the burning rule of law issue in some EU Member States for several years. It has pushed EU institutions to take action towards these Member States.

Second: the rule of law is necessary to ensure the effectiveness of EU law

A rule of law crisis in a Member State matters for the EU not only because every Member State is legally obliged by EU law to respect the rule of law and its elements, such as the independence of the judiciary. There are more substantive grounds as well. In fact, the rule of law is one of the necessary conditions that must be met for any law – and, therefore, also EU law – to be effective, i.e. applied in practice. As EU law is applied not only by EU institutions, but also, and even mostly, by the institutions of the Member States, EU law cannot be effective if the national public authorities do not abide by it and if the national judiciary is not independent. For instance, the right of men and women to receive equal pay for equal work or work of equal value, which is protected by EU law (see, among others, Article 157 of the Treaty on the Functioning of the European Union), would only exist on paper, if the public authorities simply ignored it and, to draw back to the example above, if the judges ruling on the claims in this regard could be punished by a minister who thinks that men and women should not receive equal pay for equal work.

Since in every Member State there are national courts which may adjudicate upon questions concerning the application or interpretation of EU law, for instance upon cases regarding the rights derived from EU law, these courts must be independent. Otherwise, for the reasons indicated above, they would not be able to ensure the effectiveness of EU law.

Third: judicial cooperation between the Member States in criminal and civil matters is based on the rule of law

Judicial cooperation between the Member States in criminal and civil matters forms part of one of the main policies of the EU – the Area of Freedom, Security and Justice. Thanks to this cooperation, different judicial procedures that require the involvement of the public authorities from more than one Member State go much more swiftly than with the use of traditional instruments. For example, the European arrest warrant (EAW) mechanism has successfully replaced traditional extradition proceedings between the Member States and has made handing over suspects and convicted persons efficient and fast. In 2018 alone, almost 7 000 people were surrendered between the Member States thanks to this mechanism. The EAW owes this efficiency and speed to the principle of mutual recognition, which means that generally, decisions of public authorities (in the case of EAW – judicial authorities) of a Member State are automatically recognised by the public authorities of all other Member States. For instance, a court in Italy may issue an EAW on the basis of which a suspected person will be arrested in Slovenia by the local authorities and then, if the EAW issued fulfils the requirements prescribed by relevant EU law provisions, this person will be swiftly surrendered to Italy.

Mutual recognition underpins the judicial cooperation between the Member States in criminal and civil matters and is founded on mutual trust between the Member States. This mutual trust, in turn, stems from the fact that the Member States share and are bound by the same values, including the rule of law and other values listed in the above-mentioned Article 2 of the Treaty on European Union. Therefore, every Member State can assume that, for example, a suspect surrendered to another Member State will be tried in accordance with the requirements of the rule of law, which means, among others, by an independent and impartial court. However, when a rule of law crisis arises in a Member State, the authorities of another Member State may doubt whether they can still trust the former and whether they should still automatically recognise decisions issued by its authorities. This is why two years ago, in a famous case, an Irish court hesitated to surrender a suspect to Poland due to the ongoing rule of law crisis, especially regarding the independence of the judiciary, in the latter Member State. This case shows that the respect for the rule of law in every Member State is needed for the judicial cooperation between the Member States to function smoothly.

Conclusion

In sum, a rule of law crisis in a Member State matters for the EU, as the rule of law is a foundational value of the EU itself. The respect for this value is crucial to the effectiveness of EU law, the functioning of the EU’s policies, and the cooperation between the Member States. Therefore, a rule of law crisis in one Member State poses a risk to the entire EU legal order.

If you are eager to learn more about the importance of the rule of law for the EU and its Member States, you can check out this website of the European Commission and their communication.

[1] I would like to thank Robin Leick and Julia Prummer for their helpful remarks on the previous versions of this blog post, as well as to Muhammad Saad Siddiqui for the linguistic revision of the text.

[2] You can find an accessible overview of this concept in: Brian Z. Tamanaha, The History and Elements of the Rule of Law, “Singapore Journal of Legal Studies” Dec 2012, pp. 232–247.