Upholding the rule of law in the European Union

Summary:

The Rafael del Pino Foundation, the Master's Degree in European Union Law of the Universidad Carlos III de Madrid and the Centre for European Legal Studies of Cambridge University organised the seminar "Defending the Rule of Law in the European Union" on 17 May 2023. Markus Gehring, Associate Professor and former Director of the Centre for European Legal Studies at Cambridge University; Dimitry Kochenov, Director of the Rule of Law Research Group at the Democracy Institute of the Central European University in Budapest and Professor at the University's Department of Legal Studies in Vienna; Catherine Barnard, Professor of European & Employment Law at Trinity College and Deputy Director of UK in a Changing Europe at the University of Cambridge; and Alessandro Nucara, Head of Unit, Partnership with Member States, Early Detection and Exclusion System, European Commission, and Professor at the Université Catholique de Lille.

 

Dialogue: In Search of a Supranational Notion of the Rule of Law

Markus Gehring: What we are seeing in the EU is not something exceptional in the European experience. There are certain similarities with all federal systems. We have various courts that verify the work of local courts, a work that is called into question by the federal courts. One of the themes that comes up most often is a unified rule of law. The rule of law is clearly present throughout the EU and all the European court cases have highlighted this. The fact that it does not behave in its full breakdown by some member states is normal in a federal system.

The tension is quite similar to what is happening in the US. There, state courts challenged many elements of the federal system, such as freedom of movement of goods or people. We have the federalist papers, which pointed out that power was being taken away from the state courts, invalidating their decisions. This grew over time because, from the beginning, there was the question of whether the US should go the way of the UK with the sovereignty of Parliament.

There are different levels of policy, which develop at different rates, and a single rule of law can grow piecemeal. In a commentary on European cases, the US court noted that the European Court of Justice had excelled in its interpretation of European treaty texts. European courts have recently expanded their rule of law. They are important for the EU because they apply European laws. The European Court has a long history of adapting to ensure compliance with European law and non-discrimination, ensuring that there was local autonomy. There have been cases where it has criticised member states for making it more difficult to protect rights.

The Polish situation undermined the independence of the judiciary, which is a challenge to the rule of law. The European Court built the relationship, requiring judges at the European level to follow the rules and accommodate the rule of law, invoking Article 19 TEU. Verifying this, the Grand Chamber went a step further and said that Poland had violated European law by attempting to dismiss the judges. Poland responded that the organisation of the judiciary did not fall within the EU's competence.

European law is based on the fact that all member states share the same values with each other. This assumes the existence of trust between the different member states, which means recognising European values and the European law that implements them, highlighting the common values. The organisation of the judicial system cannot be done in a way that undermines EU values, which is why the court calls for these obligations to be fulfilled. The court guarantees a common rule of law but does not guarantee the decisions that national states have to take.

Dimitry Kochenov: The EU is no longer a union of democracies supporting the rule of law, as in the case of Poland, with a constitutional court that does not respect the declaration of human rights and the decisions of the European Court. Hungary is even worse. The EU has to find a way to deal with this, which is something new that has not been contemplated.

The EU assumes that the situation we are in now is not going to be real on a day-to-day basis. This new challenge has been addressed at all levels, triggering a legal revolution that consists of taking rights more seriously. From the case of the Portuguese judges onwards who, from article 19 onwards, saw the powers to reform the judicial organisation, this situation could be tackled.

The EU felt it needed the Copenhagen criteria. At the structural level, these values were not seen as the heart of European legislation. This is what we have seen in court cases. The Orban government has never violated a provision of a national law because it rewrites the laws in order to take over the system and destroy the rule of law in a legal way. In Poland they don't care about institutions or the law, no matter what the European court might say.

This is a redefinition of what the EU is with its values. In the end, it is the system to ensure that we enforce the law, so now the EU has a lot to say about the rule of law, because it is based on failed circumstances as member states are not what they promised to be.

This institutional revolution is good and has changed something on the ground in Hungary and Poland. Orban won with a huge majority by manufacturing a million citizens who voted for the government. This kind of institutional revolution has not brought about institutional change. That is why the European Court is strengthened in this new competition.

When we test the applications of these new principles, questions arise about the rule of law at the supranational level, in the context of the complexity of federation. We have seen a number of alarm bells go off. In a very recent development, the European Court accepted a question from someone from Poland who is not a Polish judge, sending a strange message by aligning itself with those who want to change the Polish judicial system. There is a solid standard to ensure the solid rule of law, but it has failed at the level of applying the standard at the supranational level, especially in Hungary and Poland. It is dangerous for the EU because it has to be bound by the principles of article 2.

 

Dialogue: National identities and preserving the rule of law in the European Union

Catherine Barnard: If we look at the Maastricht Treaty, there are only eight references to the rule of law, which have to do with development and cooperation. The rule of law was seen as something external, not internal. But there are 167 pages of European Court rulings on the rule of law. The court has been involved in different ways, for example directly in the case of the judges in Poland, but also indirectly, such as the case of deforestation on Polish territory. Or the questioning of the cross-compliance mechanism by Poland and Hungary.

All this has arisen from the surprising case of the judges' courts, where the European Court imposed demands. Since the whole EU system is underpinned by Community law, to make sure that the legal system works well, you have to have a judicial system at national level that functions in a democracy.

We should praise the Court for its careful staging of the law and for its courage in standing up to increasingly authoritarian regimes. The rule of law is a fundamental principle that must be upheld. The European Court has intervened a great deal in this regard, in situations similar to the Cassis-Dijon case in shaping the Single Market. The Court engages as far as possible in a vertical dialogue with national courts and horizontally with the European Court of Human Rights.

This is all very positive, but there are two buts. The first is obvious. The court is limited by the cases that come before it, it is not an independent actor from this point of view. If there were no cases, what would have happened to the rule of law? The answer is quite disastrous.

Secondly, the European Court has been placed at the centre of the debate on the rule of law and this is a rather dangerous place for it to be because courts are not democratically elected. They are also very easy targets for the far-right press. We have seen it in the UK, where the Daily Mail put on the front page pictures of three judges it called enemies of the people for their stance on Brexit, following the court's decision that Brexit was not a matter for Prime Minister Theresa May but for Parliament. What he was saying was that the judges were blocking Brexit, when it was a more fundamental issue. But it was the constitution working as it should, with its checks and balances.

What would have happened if there had been no one brave enough to stand up to the executive, like the individual whistleblower in the UK case? We would have a very fragile democracy.

From the outside, it looked like the courts wanted to occupy a very important political space and wanted to cause trouble. We see exactly the same thing in the case of Poland, where the response of the Polish press to the decisions of the European Court of Justice is the same kind of rhetoric, with very strong language. The risk that the court is at the centre of the debate plays to the narrative of elites imposing themselves over the will of the people. There is a very real risk that the courts will lose the respect of the citizens in the country concerned.

What can be done? The question of the rule of law has to be resolved through political debate. Critics have urged the Commission to be more radical and use other, stronger tools. The Commission is being very cautious because it is very sensitive to all these issues. What the Commission is doing is looking at a number of tools in the Article 7 mechanism, which protect the European Court and its reputation in the longer term. The most far-reaching is the conditionality mechanism, which has been deployed against Hungary, which is now very concerned about the losses it is going to face, especially from its inflation situation. Money matters and speaks with more power in this context than many cases that end up in the European Court of Justice.

Alessandro Nucara: The European Court is a key player and always has been. It has been instrumental in the development of the rule of law. We have to find a way to deal with the challenges to the rule of law. I don't know whether the Commission and the European institutions are winning or losing. We are striving to win this battle and the Hungarian case is an example. One misinterpretation we see in the media is that the European conditionality mechanism is not a magic wand that gets rid of the European oligarchs. It is a tool to get closer to an agreement to pass the budget, not a tool for these situations. We must apply the rules fairly, objectively and impartially.

There are instruments of law that are preventive, that promote the rule of law, that lead the Commission to write recommendations to member states, so it is not binding. We also have the Article 7 response mechanisms, infringements and the conditionality mechanism, which has been in place since 2021 and applies to breaches of the rule of law that pose a financial risk.

The Court emphasises this very strongly, so that the connection between the mechanism and the budget does not have to be theoretical, but based on objectives, so that the evidence has to be found to implement this in the budget. Conditionality is there to deal with breaches of the rule of law. Proportionality is built into the rules, so the measures that the Council can take have to be proportional. It also includes the independence of the judiciary, the treatment of conflicts of interest, ... This affects the proper functioning of public administration when it allocates European funds.

Another important condition that people always forget is that you can only use conditionality if there are no other mechanisms that can protect the budget, so you have to do a complementary analysis to see if it is the most efficient mechanism or if there are others. Conditionality can be used in individual cases, but it is better if we have systematic breaks. The measures that can be taken are solid measures, such as the 6 billion in European funds, which is one third of the funds that Hungary receives. So this is a mechanism that puts member states under a lot of pressure.

If the issues are resolved, the measures can be lifted. The aim is not to sanction, but to protect the budget. It is not to punish Hungary or Poland. It is a tool that gives us the power to solve the problems. The process is very tight, it lasts between five and nine months from the time it is launched.

In Hungary, all cohesion funds are blocked because they do not comply with fundamental issues, such as academic freedom, judicial independence, etc. The same goes for the recovery funds. Hungary is very good at complying with the letter of the law, but the problems are at street level, for example, that it is always the same company that wins the tenders, which is somehow related to the ruling party and the prime minister.

Hungary is now in talks with the Commission to lift these measures.

The decision is taken by the Council and member states vote in the conditionality mechanism.

The Rafael del Pino Foundation is not responsible for the comments, opinions or statements made by the people who participate in its activities and which are expressed as a result of their inalienable right to freedom of expression and under their sole responsibility. The contents included in the summary of this conference are the result of the debates held at the meeting held for this purpose at the Foundation and are the responsibility of their authors.

The Rafael del Pino Foundation is not responsible for any comments, opinions or statements made by third parties. In this respect, the FRP is not obliged to monitor the views expressed by such third parties who participate in its activities and which are expressed as a result of their inalienable right to freedom of expression and under their own responsibility. The contents included in the summary of this conference are the result of the discussions that took place during the conference organised for this purpose at the Foundation and are the sole responsibility of its authors.

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