Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation 9781849467087, 9781474202534, 9781849469494

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STRENGTHENING THE RULE OF LAW IN EUROPE Respect for the ‘rule of law’ is, according to Article 2 of the Treaty on European Union, a value on which the Union is founded and a prerequisite for the accession of new Member States. However in some Member States there are deficiencies as regards the independence of the justice system or other aspects of the rule of law, and on several occasions the Union has been confronted with a rule of law crisis. In order to address this problem the book elucidates the principal elements of a common European rule of law in a global context, and explores the d ­ ifferent mechanisms and instruments appropriate to safeguard the rule of law and to address future rule of law crises in the Member States. The book brings together contributions from renowned academics, high-ranking professionals and experts in the fields of European law, public international law and constitutional law. Volume 65 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: A Critique of Codification Leone Niglia Protecting Vulnerable Groups: The European Human Rights Framework Edited by Francesca Ippolito and Sara Iglesias Sanchez EU International Relations Law Second Edition Panos Koutrakos Fundamental Rights in the EU: A Matter for Two Courts Edited by Sonia Morano-Foadi and Lucy Vickers What Form of Government for the European Union and the Eurozone? Federico Fabbrini, Ernst Hirsch Ballin and Han Somsen The UK and European Human Rights: A Strained Relationship? Edited by Katja S Ziegler, Elizabeth Wicks and Loveday Hodson The European Union in International Organisations and Global Governance: Recent Developments Edited by Christine Kaddous Nudge and the Law: What Can EU Law Learn From Behavioural Sciences? Edited by Alberto Alemanno and Anne-Lise Sibony Fundamental Rights in EU Internal Market Legislation Vasiliki Kosta Uniformity of Customs Administration in the European Union Kathrin Limbach The Impact of Union Citizenship on the EU’s Market Freedoms Alina Tryfonidou Equal Citizenship and Its Limits in EU Law Päivi Johanna Neuvonen The European Union’s External Action in Times of Crisis Edited by Piet Eeckhout and Manual Lopez-Escudero The Legitimacy of Family Rights in Strasbourg Case Law: Living Instrument or Extinguished Sovereignty? Carmen Draghici For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.hartpub.co.uk/books/series.asp

Strengthening the Rule of Law in Europe From a Common Concept to Mechanisms of Implementation

Edited by

Werner Schroeder

OXFORD AND PORTLAND, OREGON 2016

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2016 © Werner Schroeder Werner Schroeder has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Editor of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives. gov.uk/doc/open-government-licence/version/3) excepted where otherwise stated. All Eur-lex materials used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-708-7 ePDF: 978-1-84946-949-4 ePub: 978-1-84946-950-0 Library of Congress Cataloging-in-Publication Data Names: Schroeder, Werner. Title: Strengthening the rule of law in Europe : from a common concept to mechanisms of implementation / edited by Werner Schroeder. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2016.  |  Series: Modern studies in European law  |  Includes bibliographical references and index. Identifiers: LCCN 2016034348 (print)  |  LCCN 2016034952 (ebook)  |  ISBN 9781849467087 (hardback : alk. paper)  |  ISBN 9781849469500 (Epub) Subjects: LCSH: Rule of law—European Union countries.  |  European Union.  |  European Court of Human Rights.  |  Transparency in government—Law and legislation—European Union countries.  |  Proportionality in law—European Union countries.  |  Legal certainty—European Union countries. Classification: LCC KJE5037 .S77 2016 (print)  |  LCC KJE5037 (ebook)  |  DDC 340/.11—dc23 LC record available at https://lccn.loc.gov/2016034348 Series: Series Modern Studies in European Law, volume 65 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Contents List of Contributors������������������������������������������������������������������������������������������������� xiii

Part I: Introduction 1. The European Union and the Rule of Law—State of Affairs and Ways of Strengthening�������������������������������������������������������������������������������3 Werner Schroeder I. Point of Departure: Dangers for the Rule of Law������������������������������������3 II. Function of the Rule of Law in the Law of the Union�����������������������������4 A. ‘Community Based on Law’ Means Respect for the Law������������������5 B. Rule of Law and Legal Protection as Maxims in the ECJ’s Jurisprudence������������������������������������������������������������������5 C. Rule of Law as Part of the Constitutionalisation Strategy������������������������������������������������������������������������������������������������6 III. Rule of Law as Part of the Legal Order of the Union�������������������������������9 A. Legal Homogeneity?���������������������������������������������������������������������������9 B. Rule of Law as Value and Principle��������������������������������������������������12 C. Normative Character of the Rule of Law�����������������������������������������14 i. Binding Legal Norm�����������������������������������������������������������������14 ii. Emanation into the Union Legal Order����������������������������������15 iii. Basis for the Mutual Recognition of Legal Decisions of the Member States����������������������������������������������16 iv. Respect for the Rule of Law in the Context of the Exercise of the Public Authority of the Union������������������������18 IV. Content of the Rule of Law���������������������������������������������������������������������19 A. Necessity of a Determination of the Content of the Rule of Law�����������������������������������������������������������������������������19 B. Doubts Regarding the Usefulness of the Concept in Legal Terms�����������������������������������������������������������������������������������21 C. Formal and Material Aspects of the Union Rule of Law����������������������������������������������������������������������������22 D. Essence of the Union Rule of Law���������������������������������������������������25 V. Systemic Crises of the Rule of Law in the Member States���������������������27 A. Risks for the Union Rule of Law Arising from Systemic Crises������������������������������������������������������������������������28 B. Consequences of a ‘Systemic Deficit’ for the Respect of the Rule of Law���������������������������������������������������������������29

vi  Contents VI. Procedure for the Implementation of the Rule of Law vis-à-vis the Member States�������������������������������������������������������30 VII. Conclusion—Strengthening of the Rule of Law Through Cooperation����������������������������������������������������������������������������32 Part II: Core Elements of the Rule of Law 2. Principle of Legality and the Hierarchy of Norms���������������������������������������37 Franz Merli I. Legality as the Core of the Rule of Law�������������������������������������������������37 II. Legality as a Complex Concept��������������������������������������������������������������38 III. Three Meanings of Legality��������������������������������������������������������������������39 A. Legality as Compliance with the Law���������������������������������������������39 B. Legality as Duty of the State�����������������������������������������������������������40 C. Legality as Dominance of Parliamentary Law�������������������������������41 IV. Legality and the Quality of Law�������������������������������������������������������������42 V. Legality and the Hierarchy of Norms����������������������������������������������������43 VI. The Value of Legality������������������������������������������������������������������������������44 3. Access to Justice and Judicial Independence: Is There a Role for the EU?���������������������������������������������������������������������������������������������46 Attila Badó and János Bóka I. Current Issues Concerning Judicial Independence�������������������������������47 II. Selection and Promotion of Judges�������������������������������������������������������50 III. Assignment and Transfer of Cases, Secondment of Judges������������������53 IV. Feasibility and Possibility of EU Activities Concerning Judicial Independence����������������������������������������������������������������������������58 V. Conclusions��������������������������������������������������������������������������������������������60 4. Transparency as Part of a European Rule of Law������������������������������������������61 Inger Österdahl I. Introduction�������������������������������������������������������������������������������������������61 II. Access to Documents According to the European Court of Human Rights�������������������������������������������������������������������������66 A. Leander v Sweden�����������������������������������������������������������������������������66 B. Gaskin v United Kingdom����������������������������������������������������������������67 C. Sdruzeni Jihoceske Matky v Czech Republic������������������������������������68 D. Társaság a Szabadságjogokért v Hungary����������������������������������������69 E. Kenedi v Hungary����������������������������������������������������������������������������71 F. Youth Initiative for Human Rights v Serbia�������������������������������������72 G. Janowiec and Others v Russia����������������������������������������������������������74 H. Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria���������������������������������74 III. Tentative Conclusion������������������������������������������������������������������������������76 IV. Looking Forward: Digitalisation, Internationalisation, Privatisation��������������������������������������������������������������������������������������������77

Contents vii 5. Legal Certainty�������������������������������������������������������������������������������������������������80 Anna Gamper I. Introduction���������������������������������������������������������������������������������������������80 II. Elements of Legal Certainty��������������������������������������������������������������������81 A. Formal Certainty������������������������������������������������������������������������������81 i. Recognisability��������������������������������������������������������������������������81 ii. Predictability�����������������������������������������������������������������������������81 B. Substantive Certainty�����������������������������������������������������������������������83 III. Problem Areas of Legal Certainty�����������������������������������������������������������85 A. Legal Certainty versus Legal Delegation������������������������������������������85 B. Legal Certainty versus Legality��������������������������������������������������������86 C. Legal Certainty versus Evolutive Interpretation������������������������������88 D. Legal Certainty versus Separation of Powers����������������������������������91 IV. Conclusions����������������������������������������������������������������������������������������������95 6. The Principle of Proportionality��������������������������������������������������������������������98 Peter M Huber I. Historic Roots of the Principle of Proportionality��������������������������������98 A. From Hamurabbi to Common Law�������������������������������������������������98 B. Prussian Police Law of 1794�������������������������������������������������������������99 II. Adoption and Generalisation in German Constitutional Law��������������������������������������������������������������������������������100 A. Contributions of Scholars��������������������������������������������������������������100 B. Jurisprudence of the Federal Constitutional Court����������������������101 i. The Beginning in the 1950s���������������������������������������������������101 ii. Generalisation in the 1960s and 1970s����������������������������������102 iii. Extension to the Equal Protection Clause�����������������������������103 III. Acknowledgement in the Jurisprudence of International Courts and other Countries������������������������������������������������������������������104 A. European Court of Human Rights������������������������������������������������104 B. European Court of Justice��������������������������������������������������������������105 C. Other National Legal Orders����������������������������������������������������������106 IV. Five Elements of the Proportionality Test��������������������������������������������106 V. Three Different Dimensions of Proportionality����������������������������������107 A. Bipolar Legal Relationships between Individuals and the State����������������������������������������������������������������107 B. Multipolar Legal Relationships������������������������������������������������������107 C. Competence Related Dimension���������������������������������������������������108 i. European Union (Article 5(4) TEU)�������������������������������������108 ii. Grundgesetz (Article 28(2) GG)���������������������������������������������109 VI. Problems�������������������������������������������������������������������������������������������������110 A. Standard of Scrutiny and Counter-majoritarian Difficulty�����������������������������������������������������������������������������������������110 B. Open Questions������������������������������������������������������������������������������111

viii  Contents Part III: Council of Europe and European Union—Different Concepts of the Rule of Law? 7. The Council of Europe and the Rule of Law������������������������������������������������115 Jörg Polakiewicz and Jenny Sandvig I. Introduction�������������������������������������������������������������������������������������������115 II. Defining the Rule of Law within Europe����������������������������������������������117 III. Monitoring Mechanisms and Other Rule of Law Activities����������������121 A. European Commission for Democracy through Law (Venice Commission)���������������������������������������������������������������������122 B. PACE Monitoring Committee�������������������������������������������������������124 C. Group of States against Corruption (GRECO)�����������������������������126 D. European Commission for the Efficiency of Justice (CEPEJ)���������������������������������������������������������������������������128 E. Council of Europe Commissioner for Human Rights������������������128 IV. Cooperation on the Rule of Law with the European Union���������������130 V. Concluding Observations����������������������������������������������������������������������133 8. The Rule of Law in the Jurisprudence of the European Court of Human Rights���������������������������������������������������������������������������������135 Elisabeth Steiner I. Introduction�������������������������������������������������������������������������������������������135 II. Attempting to Define the Rule of Law��������������������������������������������������136 III. The Rule of Law in the Case Law of the European Court of Human Rights������������������������������������������������������������������������139 A. The Rule of Law as a Fundamental Principle of a Democratic Society�����������������������������������������������������������������140 B. Guarantees that are Inherent to the Rule of Law��������������������������142 i. The Rule of Law and Judicial Oversight��������������������������������142 ii. Due Process Guarantees���������������������������������������������������������147 C. The Principle of Legality Under the Convention��������������������������150 i. The Quality of Law�����������������������������������������������������������������151 IV. Concluding Remarks�����������������������������������������������������������������������������154 9. The Rule of Law in the Recent Jurisprudence of the ECJ���������������������������155 Thomas von Danwitz I. Recent Jurisprudence of the ECJ on the Rule of Law��������������������������156 A. Effective Judicial Protection Against Restrictive Measures�����������������������������������������������������������������������157 B. Legislative Discretion and Judicial Scrutiny����������������������������������159 C. Balancing Fundamental Rights������������������������������������������������������160 II. Ensuring the Respect of the Rule of Law by Member States of the European Union��������������������������������������������������������������������������162 A. Actual Context��������������������������������������������������������������������������������163

Contents ix B. The Role of the ECJ in Ensuring the Respect of the Rule of Law by EU Member States�����������������������������������167 i. Impressions of an Ongoing Integration Process����������������167 ii. The Recent Constitutional Evolution in Hungary under Review by the ECJ���������������������������������168 III. Ensuring the Rule of Law—A Never Ending Story���������������������������169 Part IV: Mechanisms of Implementing the Rule of Law in Europe 10. Reinforcement of the Rule of Law Oversight in the European Union: Key Options��������������������������������������������������������������������173 Carlos Closa and Dimitry Kochenov I. Introduction����������������������������������������������������������������������������������������173 II. Arguments in Favour of the Rule of Law Oversight��������������������������175 A. The ‘What?’ Question: On the Nature of the Rule of Law Problems at Issue�������������������������������������������������������������175 B. The ‘Why?’ Question: What does the EU have to do with all this?������������������������������������������������������������������������177 i. The All-affected Principle����������������������������������������������������177 ii. The Supranational Federation Approach���������������������������178 iii. The Principle of Congruence����������������������������������������������179 III. The Legal Basis for Reinforced EU Oversight������������������������������������179 A. Article 7 TEU��������������������������������������������������������������������������������180 B. Key Options Framing the Way Forward: What About the Treaty Change?������������������������������������������������������������180 C. Legal Bases Currently Available���������������������������������������������������182 i. Articles 2 TEU and 4(2), 3(1) and 13(1) TEU Read Together����������������������������������������������������������������������183 ii. Articles 2 TEU and 19 TEU Read Together������������������������184 iii. Articles 2 TEU and 258 TFEU Deployed Together������������184 iv. Adding Article 260 TFEU����������������������������������������������������185 IV. Oversight Procedures��������������������������������������������������������������������������186 A. Key Components and Classifications of Procedures������������������187 i. Brand-new Procedures versus (Updated) Existing Ones�����������������������������������������������������������������������187 ii. Judicial versus Political Procedures�������������������������������������188 iii. Ex ante versus Ex post Procedures��������������������������������������188 iv. Avoiding Semblance of Change������������������������������������������189 B. Legal Procedures��������������������������������������������������������������������������189 i. Systemic Infringement Procedure���������������������������������������189 ii. ECJ Involvement via EU Citizenship Rights����������������������190 C. Political Procedures����������������������������������������������������������������������191 i. Learning from the Council of Europe��������������������������������191 ii. Using Existing EU Bodies����������������������������������������������������192 iii. Creating a Special New EU Organ: The Copenhagen Commission��������������������������������������������192

x  Contents D. Penalties and Sanctions����������������������������������������������������������������193 i. Financial Sanctions��������������������������������������������������������������193 ii. Ejecting a Non-compliant Member State from the Union��������������������������������������������������������������������194 V. Conclusions�����������������������������������������������������������������������������������������194 11. The EU Rule of Law Framework�����������������������������������������������������������������197 Emmanuel Crabit and Nicolaas Bel I. Introduction����������������������������������������������������������������������������������������197 A. The Concept of Rule of Law—A Common Understanding������������������������������������������������������������������������������198 II. Why has the Commission Established the EU Rule of Law Framework?�����������������������������������������������������������������������������198 A. Infringement Proceedings�����������������������������������������������������������199 B. The Mechanisms of Article 7 TEU����������������������������������������������200 C. The Need to Address Intermediate Situations����������������������������201 III. What are the Conceptual Components of the EU Rule of Law Framework?�����������������������������������������������������������������������������202 A. The Objective of the EU Rule of Law Framework����������������������202 B. ‘National Rule of Law Safeguards’�����������������������������������������������203 C. ‘Systemic Threat to the Rule of Law’�������������������������������������������203 D. ‘Rule of Law Crisis’�����������������������������������������������������������������������204 E. The Power of the Commission to Establish the Framework�����������������������������������������������������������������������������204 IV. How Will the EU Rule of Law Framework Function?�����������������������205 V. Conclusions�����������������������������������������������������������������������������������������206 12. Global Activities and Current Initiatives in the Union to Strengthen the Rule of Law—A State of Play����������������������������������������207 Andreas J Kumin I. Introductory Remarks�������������������������������������������������������������������������207 II. Global and Regional Activities������������������������������������������������������������208 A. Global Activities���������������������������������������������������������������������������208 B. Regional Activities������������������������������������������������������������������������211 III. Current Initiatives in the European Union����������������������������������������212 A. Problems and Shortcomings��������������������������������������������������������212 B. The Initiative of the Irish Presidency of the Council in 2013����������������������������������������������������������������������������215 C. The Initiative of ‘Four Member States’����������������������������������������216 D. Approaches by the Other EU Institutions����������������������������������217 13. Managing the Rule of Law in a Heterogeneous Context: A Fundamental Rights Perspective on Ways Forward������������������������������221 Gabriel N Toggenburg and Jonas Grimheden I. How Much Heterogeneity can European Unity Afford? The Argument for Minimum Constitutional Cohesion�������������������221

Contents xi II. How to Look at the Rule of Law Debate? The Argument for a Fundamental Rights Perspective�����������������������������������������������225 III. How to Ensure a Rights-based Performance? The Argument for Fundamental Rights Indicators���������������������������������������������������227 IV. How to Move Beyond Sanctions: The Argument for Leading by Example and Learning from Peers�����������������������������������������������230 V. How to Make Fundamental Rights a ‘Joined-up’ Mission? The Argument for a Bottom-up Approach���������������������������������������233 VI. How to Move the Value Debate from Extreme Scenarios to Day to Day Business? The Argument for a Strategic Framework�����������234 VII. Who Does What? Addressing the ‘Elephant in the Room’ Through a Hybrid Approach with Supranational and Intergovernmental Elements�������������������������������������������������������������237 Part V: Institutional Implications of Implementing the Rule of Law in Europe 14. The EU and Rule of Law—The Unavoidable Question of: Who Controls it?������������������������������������������������������������������������������������������243 Gregor Schusterschitz I. Introduction���������������������������������������������������������������������������������������243 II. Institutional Power Play in Organisations and in the EU����������������244 III. The Prelude to the Rule of Law Mechanism—The Negotiations for the Fundamental Rights Agency���������������������������245 A. The Role of the Agency in the Legislative Procedure����������������246 B. Remit of the Agency—Question of National Country Situations����������������������������������������������������������������������246 C. Role of Council of Europe����������������������������������������������������������247 D. Relevance for Rule of Law Discussion���������������������������������������247 IV. Institutional Considerations behind the Rule of Law in the EU��������������������������������������������������������������������������������247 A. European Commission���������������������������������������������������������������248 B. European Parliament������������������������������������������������������������������249 C. Council����������������������������������������������������������������������������������������250 D. Comparison of the Concepts of the Three Principal EU Organs�������������������������������������������������������������������252 V. Conclusion�����������������������������������������������������������������������������������������253 15. The Rule of Law in European Policy: A Parliamentarian’s View�������������255 Eva Lichtenberger I. Introduction���������������������������������������������������������������������������������������255 II. The Rule of Law in Neighbourhood Policy and External Action���������������������������������������������������������������������������255 A. Neighbourhood-policy: Western Balkans���������������������������������256 B. Mexico�����������������������������������������������������������������������������������������256

xii  Contents III. The Rule of Law Within the Borders of the EU���������������������������������257 A. The Need for an Administrative Law for the European Institutions������������������������������������������������������������������258 B. The Case of Hungary: The Article 7 Dilemma���������������������������259 C. The Future of Article 7 TEU��������������������������������������������������������262 16. The Rule of Law and the Constitutionalisation of the European Union��������������������������������������������������������������������������������265 Monica Claes and Matteo Bonelli I. Introduction����������������������������������������������������������������������������������������265 II. Rule of Law, the Concept and the European Union��������������������������266 III. Rule of Law and the Process of the Constitutionalisation of the European Union�����������������������������������������������������������������������269 A. The Rule of EU Law���������������������������������������������������������������������270 B. The Rule of Law at the EU Level�������������������������������������������������271 C. The Rule of Law in the Member States���������������������������������������274 IV. Enforcing the Rule of Law in the EU Member States: the Dilemma�������������������������������������������������������������279 V. The Responsibility to Guarantee the Rule of Law in the Member States: from Institutional Struggle to Institutional Cooperation?�����������������������������������������������������������������282 VI. The Way Forward?�������������������������������������������������������������������������������288

Index�����������������������������������������������������������������������������������������������������������������������291

List of Contributors ATTILA BADÓ is Professor of Comparative Law at the University of Szeged. NICOLAAS BEL is legal officer in the Unit ‘General Justice policies and judicial systems’ in the Directorate-General for Justice of the European Commission, Brussels. JÁNOS BÓKA is Senior Lecturer at the University of Szeged and Associate ­professor at the National University of Public Service. MATTEO BONELLI is a PhD researcher at the University of Maastricht. CARLOS CLOSA is Part-time Professor at the Global Governance Programme, Research Area Director ‘European, Transnational and Global Governance’ at the European University Institute, Florence. MONIKA CLAES is Professor of European and Comparative Constitutional Law at the Law Faculty of Maastricht University. EMMANUEL CRABIT is the Head of the Unit ‘General Justice policies and judicial systems’ in the Directorate-General for Justice of the European Commission, Brussels. THOMAS VON DANWITZ is Judge, Court of Justice of the European Union, Luxembourg, and President of the Fifth Chamber of the Court since 2012, and Professor of European Law at the University of Cologne. ANNA GAMPER is Professor of Public Law at the University of Innsbruck. JONAS GRIMHEDEN is Head of Sector Access to Justice at the European Agency for Fundamental Rights, Vienna and Associate Professor of Law at the Faculty of Law at Lund University. PETER M. HUBER is Judge, Federal Constitutional Court of Germany, Karlsruhe and Professor of Public Law at the University of Munich. DIMITRY KOCHENOV is Professor of EU Constitutional Law at the Department of European and Economic Law, University of Groningen and Visiting Professor of Private Law, University of Turin. ANDREAS KUMIN is Deputy Legal Advisor in charge of the Department of ­European Law, Austrian Ministry for Europe, Integration and Foreign Affairs, Vienna. EVA LICHTENBERGER is a former Member of the European Parliament, Brussels.

xiv  List of Contributors FRANZ MERLI is Professor of Public Law at the University of Vienna. INGER ÖSTERDAHL is Professor of Public International Law at the University of Uppsala. JÖRG POLAKIEWICZ is Professor at the Europa-Institut of the University of Saarbrücken and Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe, Strasbourg. JENNY SANDVIG, Master of Laws from the University of Oslo, is Associate ­Lawyer at the Norwegian Attorney General’s Office—Civil Affairs (on leave) and was an intern at the Directorate of Legal Advice and Public International Law, Council of Europe, Strasbourg. WERNER SCHROEDER is Professor of European and International Public Law at the University of Innsbruck. GREGOR SCHUSTERSCHITZ is Austrian Ambassador to Luxembourg and former Deputy Permanent Representative of Austria to the EU in Brussels. ELISABETH STEINER is a former Judge, European Court of Human Rights, Strasbourg. GABRIEL TOGGENBURG is Senior Legal Advisor with the European Union Agency for Fundamental Rights, Vienna and Visiting Professor at the Faculty of Law, University of Graz.

Part I

Introduction

2

1 The European Union and the Rule of Law—State of Affairs and Ways of Strengthening WERNER SCHROEDER

I.  POINT OF DEPARTURE: DANGERS FOR THE RULE OF LAW

A

CCORDING TO THE first sentence of Article 2 of the Treaty on European Union (TEU), the European Union is founded on values among which figure the respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights, including the rights of persons belonging to minorities. The second sentence of this provision assumes that the Member States respect and observe these values. In the last years, however, the political situation in some Member States has made manifest that these values are partly jeopardised to a considerable degree; this notably holds true for the principle of the rule of law. The most notorious example is Hungary, where the Government is formed by a coalition which abuses its constitution-changing majority in order to eliminate forms of extra-parliamentary control through the court system as well as the media.1 Similar tendencies can also be observed in some other Member States, as is the case in Poland since autumn of 2015, where the governing coalition has undermined the independence and functioning of the Constitutional Court2 and seeks to restrict the freedom of the media. Meanwhile, such methods, which are geared to the Hungarian model of an illiberal democracy and to the idea that an electoral victory endows a government that can rely on a majority in Parliament with a comprehensive entitlement to recast the State according to its visions,

1  See KL Scheppele, ‘Understanding Hungary’s Constitutional Revolution’ in A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford, Hart Publishing, 2015) 112. 2  It did not stop with the government’s attempt to bend the constitutional court to its will by ‘court packing’, see TT Koncewicz, ‘“Court packing” in Warsaw: The plot thickens’ (Verfassungsblog, 18 December 2015) www.verfassungsblog.de/court-packing-in-warsaw-the-plot-thickens.

4  Werner Schroeder are called ‘Orbanization’.3 They collide, however, with the principle of rule of law which, as a common principle of the EU Member States, restricts the majority rule in the State through institutions such as separation of powers, independence of the courts, submission of the legislation to the Constitution and fundamental rights and which guarantees the liberty of the individuals. The examples of Hungary and Poland reveal a serious deficit in the Union’s architecture: States are intensely checked before their accession to the Union, on the basis of Article 49 TEU, in regard to their ability and preparedness to respect the values of that Union. If, however, the rule of law and fundamental rights erode in a Member State after having joined the Union, the latter faces a dilemma. It is disposed of only limited legal instruments to counter such development. This also helps to explain the Union’s hesitant action vis-à-vis the events in Hungary since 2010. The threat of the sanctioning procedure of Article 7 TEU or of an infringement procedure according to Article 258 Treaty on the Functioning of the ­European Union (TFEU) proves to be of only little effect. This situation is commonly referred to as the ‘Copenhagen’ dilemma,4 and it has meanwhile grown into a significant problem for the European integration. Some speak of a ‘rule of law crisis’ of the European Union which is said to challenge the foundations of the European integration to a not lesser degree than the sovereign debt crisis.5 The Union draws a great part of its legitimacy from the fact that its organs and its ­Member States respect the law, democracy and fundamental rights. Unless the Union asserts its values vis-à-vis its own members, it loses any credibility in actively pleading those values to the outside, as provided in Article 3, paragraph 4, first sentence, as well as Article 21 TEU. This concerns the Union’s relationship with third States as well as with candidates for accession to the Union. Alas, even more importantly, the rule of law of the Member States holds together the system of the Union from the inside.

II.  FUNCTION OF THE RULE OF LAW IN THE LAW OF THE UNION

It is a truism that the rule of law represents a central element of the Union’s constitution. 3 T Garton Ash, ‘Poland has survived worse than this shift to conservativism’ (The Guardian, London, 26 October 2015) www.theguardian.com/commentisfree/2015/oct/26/poland-electionsurvived-worse-orbanisation. 4  This term is used to describe that the so-called ‘Copenhagen criteria’ enshrined in Article 2 TEU (see for the genesis of Art 2 TEU St Mangiameli, ‘Article 2: The Homogeneity Clause’ in H-J Blanke and St Mangiameli (eds), The Treaty on European Union (TEU) (Heidelberg, Springer, 2013) para 2 note 6) are not adhered to; to this dilemma also G Toggenburg, ‘Was soll die EU können dürfen, um die EU-Verfassungswerte und die Rechtsstaatlichkeit der Mitgliedstaaten zu schützen’ (October 2013) Österreichische Gesellschaft für Europapolitik Policy Brief 4. 5  D Kochenov, ‘The EU in its most serious crisis ever (and that’s not the Euro crisis)’ (­Verfassungsblog, 13 June 2013) http://verfassungsblog.de/en/the-eu-in-its-most-serious-crisis-ever-and-thats-not-theeuro-crisis-2; A von Bogdandy and M Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What has been Done, What can be Done’ (2014) 51 CML Rev 59, 60.

The EU and the Rule of Law 5 A.  ‘Community Based on Law’ Means Respect for the Law Already at the beginning of the 1960s, Walter Hallstein coined, in regard to the then European Economic Community (EEC), the concept of a ‘community based on law’.6 This term has made a remarkable career since then. It was later taken up by the European Court of Justice (ECJ) and represents an essential element of Union law doctrine. Hallstein’s remark did however not refer to the Member States of the then Community as all being States governed by the rule of law. He did not primarily seek to illustrate that the Community has institutions such as fundamental rights, separation of powers, legal protection and so on, and is therefore endowed with all insignia of a State based on the rule of law. He rather aimed at emphasising that the Community ‘solely’ disposed of legal power and not of means of coercion. Hence, the Union’s power is exclusively based on the respect for the law.7 As a matter of fact, the law of the Union does not contain any instruments for the emergence of a ‘state of emergency’8 between the Union and its Member States. It only governs the ‘normal condition’.9 The Union law’s legal concept for the handling of borderline situations where the rule of law is threatened in and by the Member States does not provide for the use of force, but, as it is common in other modern federal systems, for cooperation10 and consideration. The sanctioning procedure for the massive violation of rule of law principles, which is enshrined in Article 7 TEU and which was created by the Amsterdam Treaty, does not change much in this regard since it does not provide for the use of force against a Member State. B.  Rule of Law and Legal Protection as Maxims in the ECJ’s Jurisprudence As is commonly known, the ECJ took up the concept of a Community based on law and linked it to the constitutional character of the Treaties. According to the 6  See W Hallstein, ‘Die EWG als Schritt zur Europäischen Einheit’ in T Oppermann (ed), Walter Hallstein—Europäische Reden (Stuttgart, Deutsche Verlags-Anstalt, 1979) 109; see also EW Fuß, Die Europäischen Gemeinschaften und der Rechtsstaatsgedanke (Heule, UGA, 1968) 16 f. 7  W Hallstein, Der unvollendete Bundesstaat: europäische Erfahrungen und Erkenntnisse (Düsseldorf, Econ-Verl, 1969) 33. 8  For the state of emergency as a test case of jurisdiction, the famous quote: ‘Souverän ist, wer über den Ausnahmezustand entscheidet’ (‘Sovereign is he who decides on the exception’) in C Schmitt, Politische Theologie—Vier Kapitel zur Lehre von der Souveränität 4th edn (Berlin, Duncker & Humblot, reprint 1985) 11; see also F Rosenstiel, Le Principe de ‘supranationalité’: essai sur les rapports de la politique et du droit (Paris, A Pedone, 1962) 29, 34. 9 Against a theoretical aggravation of the European integration according to the theory by C Schmitt also I Pernice, ‘Carl Schmitt, Rudolf Smend und die europäische Integration’ (1995) 120 Archiv des öffentlichen Rechts 100, 109 ff; see W Schroeder, Das Gemeinschaftsrechtssystem: eine Untersuchung zu den rechtsdogmatischen, rechtstheoretischen und verfassungsrechtlichen Grundlagen des Sytemdenkens im Europäischen Gemeinschaftsrecht (Tübingen, Mohr Siebeck, 2002) 220. 10  FW Scharpf, ‘Die Politikverflechtungsfalle: Europäische Integration und deutscher Föderalismus im Vergleich’ (1985) 4 Politische Vierteljahresschrift 323 ff; for ‘kooperativen Föderalismus’ see K Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 18th edn (Heidelberg, Müller, 1991) para 234.

6  Werner Schroeder Court, the then EEC is ‘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’.11 The terminology applied by the Court of Justice implies that in Union law there exist certain principles and structures related to the rule of law which are familiar to the national constitutional law.12 The case-law, however, reduces the substance of this community of law more or less to the requirement of effective legal protection.13 In addition, in its understanding of the community of law, the Court of Justice is focused on its own role in the European court system.14 Against this background, the ECJ derives from the principle of the community of law claims for the autonomy of the Union and, above all, for its own position as the Union’s constitutional court. Accordingly, the Court of Justice uses the statement that the treaties constitute ‘the constitutional charter of a Community based on the rule of law’, when compared with other international treaties, for the purpose of repelling supposed attacks on the autonomy of the Union legal order due to the participation of the Union in international dispute settlement systems.15 This jurisprudence of the Court of Justice provides two important insights for this examination of the role of the rule of law in the Union: on the one hand, the concept is primarily focused on the rule of law within the Union itself, but not in the Member States, and on the other hand, it restricts the content of the rule of law on the Union level to questions of legal protection.

C.  Rule of Law as Part of the Constitutionalisation Strategy Already Walter Hallstein used the concept of the rule of law in order to manifest the constitutional character of the Treaties.16 This idea was endorsed by the 11  Case C-294/83 Les Verts v Parliament [1986] ECR 1339, para 23; see also Case C-550/09 E and F [2010] ECR I-6213, para 44 and Case T-443/08 Freistaat Sachsen and Others v Commission [2011] ECR II-1311, para 55 ‘union based on the rule of law’ (‘Rechtsunion’). 12  For the relationship between the Community’s constitutional character and legal community, see Fuß (n 6) 16 f; Hallstein (n 7) 41, 48 f; JP Jacqué, ‘Cours général de droit communautaire’ in ­Academy of European Law, Collected Courses of the Academy of European Law (Oxford, Oxford ­University Press, 1990) vol 1, book 1, 237, 277 ff; GC Rodríguez Iglesias, ‘Zur “Verfassung” der Europäischen ­Gemeinschaft’ (1996) 23 Europäische Grundrechte-Zeitschrift 125, 131. 13  This principle is specified in: Case C-294/83 Les Verts v Parliament (n 11) para 23; Case C-2/88 IMM—Zwartveld and Others [1990] ECR I-4405, para 16; with respect to Community actions and Member States, respectively Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paras 18 f; explicitly Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 281, 316. 14  See, eg Iglesias (n 12) 125. 15  Opinion Avis 1/91 Avis 1 v 91 [1991] ECR I-6079, paras 21, 46, 71 f. This reasoning is repeated in the new Opinion regarding the accession to the ECHR, Opinion Avis 2/13 Avis au titre de l‘article 218, paragraphe 11, TFUE EU:C:2014:2454, paras 163 ff. 16  See Fuß (n 6) 16 f; Hallstein (n 7) 41, 48 f; against, without reference to the constitutional character, AJ Mackenzie Stuart, The European Community and the Rule of Law (London, Stevens, 1977).

The EU and the Rule of Law 7 case-law of the ECJ only in the middle of the 1980s.17 At this time, it had already become clear that the jurisprudence on the primacy of EU law, its direct effect and on fundamental rights had effected a ‘constitutionalisation’ of Community law.18 The topos of the rule of law immediately became part and parcel of this constitutionalisation strategy.19 It perfectly lends itself to distinguish the law of the Union from international law and to support the proposition that the Union is not an intergovernmental organisation as the others, but a public authority sui generis endowed with a supranational constitution.20 The Court of Justice also applies such constitutional and rule of law terminology to the effect of securing the substantial legitimacy of the law of the Union, particularly by underscoring that the rule of law constitutes an element of the Union’s particular identity on the international plane.21 Methodologically, this jurisprudence draws on the fact that the rule of law can be conceived of as an element of the common constitutional traditions of the Member States and therefore a general principle of the law of the Union. In some Member States, albeit certainly not in all of them, the rule of law is indeed intimately linked to the existence of a constitution which represents the normative foundation for the exercise of public authority.22 The rule of law was, however, only recognised as a genuine element of the law of the Union with the Amsterdam Treaty, namely in Article 6 TEU (old version). Since then, it explicitly pertains to the constitutional law profile of the Union which is not only applicable for the Union itself, but also for the Member States (Article 2, second sentence and Article 7 TEU). It has therefore taken several decades for the rule of law to acquire the status of, and to establish itself as, a principle of the Union’s law. This is understandable given the fact that the objectives and means of operation that were origi-

17 

Case C-294/83 Les Verts v Parliament (n 11) para 23. See especially E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1; JHH Weiler, ‘The Community System: the Dual Character of Supranationalism’ (1981) 1 Yearbook of European Law 267, 274; later also T Hartley, ‘Federalism, Courts and Legal Systems: The Emerging Constitution of the European Communities’ (1986) 34 American Journal of Comparative Law 229, 231 ff; GF Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 26 595 ff; K Lenaerts, ‘Constitutionalism and Many Faces of Federalism’ (1990) 38 American Journal of Comparative Law 205 ff; Jacqué (n 12) 265; see Fuß (n 6) 16 ff, but he had transferred substantive rule of law concepts to the communities and concluded those would possess a ‘konstitutionelle Verfassung’. 19  See Mangiameli (n 4) para 11. 20  Opinion Avis 1/91 Avis 1 v 91 (n 15) para 108; see Opinion Avis 2/13 Avis au titre de l‘article 218, paragraphe 11, TFUE (n 15) paras 156 f, 163 ff. 21  In contrast to the UN system, see Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission (n 13) paras 281 ff; following from Art 21 TEU, see M Hilf and F Schorkopf, ‘EUV Art 2’ in E Grabitz, M Hilf and M Nettesheim (eds), Das Recht der Europäischen Union (Munich, CH Beck, 57th additional supp, August 2015) paras 12–54. 22  See, eg for Germany, E Schmidt-Aßmann, ‘§ 26: Der Rechtsstaat’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland: Band II: Verfassungsstaat 3rd edn (Heidelberg, CF Müller, 2004) para 28. 18 

8  Werner Schroeder nally agreed upon by the Member States of the Community were primarily of an ­economic and social policy character and that the ‘Common Market’ and the ‘market freedoms’ were at the heart of this economic order.23 Therefore, the ­Treaties of Rome did not contain, with the exception of legal protection, any elements testifying an explicit rule of law terminology. Nonetheless, already when establishing the Communities, the participating States fundamentally agreed on certain rule of law principles without which the common integration project would not have been possible in the first place.24 The ECJ could tie in with these commonalities when in 1969 it identified the fundamental rights as rule of law proprium of the then Community, and this without an express basis in the Treaties, or when in 1986 it qualified the rule of law as an unwritten constitutional principle. It thus discovered an essential part of those unwritten constitutional principles which are now contained in Article 2 TEU. These and other decisions such as the assertion of primacy and the direct effect of Community law25 ultimately led to an ever stronger juridification of the process of integration and resulted in the ‘transformation’26 of Europe from an economic community to a community of law. This transformation was accompanied by a constitutional rhetoric which the ECJ itself employed since the middle of the 1980s. The ‘­discovery’ of the rule of law in the Community law supports this transformation since this principle is understood as a ‘constitutional principle’.27 With the advent of the interpretation of the Treaties as a constitution which organises and legitimises supranational public authority not only in economic, but also in highly political fields,28 the Member States also became interested more strongly in giving an explicit status to the constitutional principles such as the rule of law, fundamental rights and democracy. This was realised by virtue of Article F paragraph 1 of the Maastricht Treaties which, however, merely acknowledged that the governmental systems of the Member States are founded on democratic principles. The principle of the rule of law is first mentioned in the context of the law of the Union in the Conclusions of the European Council of Copenhagen in 1993 where the candidate countries for EU membership are committed to ‘stability of institutions guaranteeing democracy, the rule of law, human rights, respect

23  Even though, in the long run, the Schuhman plan was expecting the political integration of involved states as a functionalistic result, see J Monnet, Mémoires (Paris, Fayard, 1976) 353; E Haas, The Uniting of Europe: Political, Social, and Economic forces 1950–1957 (Stanford, Stanford University Press, 1958) 16 ff; HP Ipsen, Europäisches Gemeinschaftsrecht (Tübingen, Mohr, 1972) 176 ff. 24  C Calliess, ‘EUV Art 2’ in C Calliess and M Ruffert (eds), EUV/AEUV: Kommentar 4th edn (Munich, CH Beck, 2011) para 1. 25  Case C-6/64 Costa v ENEL [1964] ECR 1141, 593 f; Case C-26/62 Van Gend en Loos v Administratie der Belastingen [1963] ECR 3, 6. 26  JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403 ff. 27  See A von Bogdandy, ‘Founding Principles’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law 2nd edn (Portland, Hart Publishing, 2009) 11, 13, 22. 28  For this new interpretation, see F Snyder, ‘General Course on the Constitutional Law’ in Academy of European Law, Collected Courses of the Academy of European Law (Oxford, Oxford University Press, 1998) vol 6, book 1, 41, 47 ff.

The EU and the Rule of Law 9 for and protection of minorities’.29 The Amsterdam Treaty of 1997 adopts this approach and thus goes beyond the Maastricht Treaty inasmuch as it states in Article 6 ­paragraph 1 TEU that the Union is founded on the principles of liberty, democracy, the respect for human rights and fundamental freedoms; these principles are common to all Member States. In Article I-2 of the 2004 Treaty establishing a Constitution for Europe which has not entered into force, these principles were re-baptised into ‘values’. It is this very term that the identical provision of Article 2 TEU also uses. Article 3 paragraph 1 TEU elevates the promotion of the constitutional values to the primary objective of the Union. This provision replaces the stipulation of economic and social policy market goals in Article 2 EEC. This makes the transformation of the Community from a single market organisation to the Union as a community of values utterly manifest. III.  RULE OF LAW AS PART OF THE LEGAL ORDER OF THE UNION

The respect for and the promotion of the rule of law is, according to Article 49 TEU, a formal requirement for every accession to the Union.30 It is also relevant for the implementation of sanctions pursuant to Article 7 TEU against Member States whose conduct gives rise to a clear risk of a serious breach of the rule of law. A.  Legal Homogeneity? Article 2 TEU is sometimes referred to as a ‘homogeneity clause’. It is derived from Article 2, first and second sentence TEU as well as from Article 7 TEU that a similar rule of law standard applies both vertically between the Union level and the Member States’ level and horizontally among the Member States themselves. Every public authority, irrespective of whether it has its origin on the Union or national level, shall be assessed according to this standard.31 Such claims for congruence of constitutional principles in federal systems are often based in federal ideas32 or models.33 When applied to the law of the Union,

29 

(1993) 26 (6) EC Bull, para I.13. C Ohler, ‘EUV Art 49’ in Grabitz, Hilf and Nettesheim (n 21) paras 15 f; M Cremona, ‘EU Enlargement: Solidarity and Conditionality’ (2005) 30 EL Rev 3; For the relation between Art 49 and 7 TEU, see especially M Rötting, Das verfassungsrechtliche Beitrittsverfahren zur Europäischen Union: und seine Auswirkungen am Beispiel der Gotovina-Affäre im kroatischen Beitrittsverfahren (Heidelberg, Springer, 2009) 232 ff. 31  Hilf and Schorkopf, (n 21) paras 9 f, say that this ‘understanding is now generally accepted’ (translation by author); see also Mangiameli (n 4) paras 42 ff; A von Bogdandy, M Kottmann, C ­Antpöhler, J Dickschen, S Hentrel and M Smrkolj, ‘Reverse Solange—Protecting the Essence of Fundamental Rights against Member States’ (2012) 49 CML Rev 489, 509 ff. 32  For the homogeneity requirement with respect to federalism and the principle of democracy, see C Schmitt, Constitutional Theory (Durham, Duke University Press, 2008) 388. 33  See Art 28 para 1 sentence 1 German Basic Law, which is calling for constitutional homogeneity between the Basic Law (Constitution) and the federal states (‘Die verfassungsmäßige Ordnung in den 30  See

10  Werner Schroeder they have a unifying effect, as they imply the existence of a supremacy of the Union vis-à-vis its Member States and suggest supervisory powers in the relationship between the Union and the Member States that go beyond Article 7 TEU. Can a claim for constitutional (vertical) homogeneity between the Union and the Member States be sustained under these conditions? Can or shall there be similar constitutional law standards on the level of the Union and the Member States in the first place? Such a claim is in need of critical reflection. First of all, it is problematic to reconstruct the Union’s constitution in the light of models of the federal states since the institutional situation of the Union follows its own rules.34 Even though the Union constitutes a ‘common public authority’35 which exercises and organises public authority, only limited conclusions for the understanding of the Union’s constitution can be drawn from theories that take national federal systems as their point of reference. In view of the different structure of the Union as a community of integration the constitutional structures and principles of the Union differ from those of the Member States.36 The claim for constitutional homogeneity of Union and Member States must thus be rejected. The reverse claim that the constitutional structures of the Union must correspond to those of the Member States, as made by national constitutional courts, notably the German Constitutional Court in its Solange jurisprudence,37 can also be considered to be overcome. In the relationship among the Member States (horizontally) there exists no such thing as rule of law homogeneity. No Union law fiction is available in this regard, since concerning essential constitutional principles such as the content of human dignity, there is no respective ‘common conception’ of the Member States.38 Also

Ländern muß den Grundsätzen des republikanischen, demokratischen und sozialen Rechtsstaates im Sinne dieses Grundgesetzes entsprechen’; ‘The constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law, within the meaning of this Basic Law’). Although in Germany, the claim of homogeneity does not mean the obligation of uniformity of federal and state constitutions. Nevertheless, the German Constitutional Court handles the claim strictly, see BVerfGE 90, 60, BVerfG, Judgment of 22 February 1994—1 BvL 30/88, paras 84– 88 (Rundfunkentscheidung); see J Hellermann, ‘Art 28’ in V Epping and C Hillgruber (eds), Beck‘scher Online-Kommentar GG 25th edn (Munich, CH Beck, June 2016) para 2; see also ­Article 99 para 1 B-VG, which states that the state constitutions in Austria may not contradict the federal constitution. This does also apply for the principle of the rule of law, see W Pesendorfer, ‘Art 99 B-VG’ in B Kneihs and G Lienbacher (eds), Rill-Schäffer-Kommentar: Bundesverfassungsrecht (Wien, Verlag Österreich, 16th supp, 2015) no I. A. 34  See, Case C-359/92 Germany v Council [1994] ECR I-3681, para 38; against constitutional analogies also Matthews v UK (1999) 28 EHRR 361, para 48. 35  Délibération 1/78 [1978] ECR 2151 para 7. 36  Case C-138/79 Roquette v Council [1980] ECR 3333; see BVerfG, Order from the Chamber of 31 May 1995—2 BvR 635/95 (1995) 48 NJW 2216; see previously BVerfGE 89, 115, BVerfG, Decision of 17 August 1993—1 BvR 1474/92 (Maastricht), 182; also BVerfGE 123, 267, BVerfG, Judgment of 30 June 2009—2 BvE 2/08 (Lissabon), 370. 37  BVerfGE 37, 271, BVerfG, Decision of 29 May 1974—2 BvL 52/71 (Solange I), pp 280, 285; see U Scheuner, ‘Fundamental Rights in European Community Law and in National Constitutional Law’ (1975) 12 CML Rev 171. 38  Case C-36/02 Omega [2004] ECR I-9609, para 37.

The EU and the Rule of Law 11 with respect to the other elements of the rule of law such as legal protection, ­separation of powers and so on, as regards the details a common conception of the Member States cannot be found.39 The claim for the rule of law should therefore not be understood as a claim for homogeneity. This would do justice neither to the European constitutional reality nor to the Treaties. The law of the Union, as it stands, acknowledges in Article 4 paragraph 2 TEU that the ‘national identity’ of the Member States which the Union shall respect is based on their ‘fundamental structures, political and constitutional’. It is thus the law of the Union itself that recognises that in spite of the common constitutional values of Article 2 TEU there exist structural differences in terms of constitutional law between the constitution of the Union and the constitution of the Member States which become manifest in an individual approach of the Member States in regard to their respective understanding of the rule of law.40 A central function of every constitution is to endow the national political identity with a political form as well as to preserve it.41 The idea that Article 2 TEU orders and supervises a federal state-type constitutional homogeneity in the relationship between the Union and the Member States and among the Member States, respectively, is not compatible with such a model of constitutional ­pluralism,42 which is after all laid down in black-letter Treaty law.43 The claim for the rule of law of the Union and the Member States does therefore not aim at the existence of uniform principles and rules, but solely at the observing of a European minimum standard in terms of the rule of law. To define this minimum standard, however, is not an easy task (see Part IV below).

39 Regarding the difference of the rule of law in common law and continental legal systems, AV Dicey, Introduction to the Study of the Law of the Constitution 10th edn (London, Macmillan, 1961) 189 ff, 267 ff; see also M Krygier, ‘Rule of Law’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 233; CD Classen, Nationales Verfassungsrecht in der Europäischen Union: eine integrierte Darstellung der 27 Verfassungsordnungen (Baden-Baden, Nomos, 2013) 56 ff. 40  See for national constitutional identity control BVerfGE 123, 267 (n 36) (Lissabon) 343, whereupon, according to Art 23 para 1 sentence 3 in conjunction with Art 79 para 3 of the Basic Law, the ‘inviolable core content of the constitutional identity of the Basic Law’ has to be respected within the framework of the Union. 41  R Barents, ‘The Fallacy of European Multilevel Constitutionalism’ in M Avbelj and J Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012) 153, 161; see for identity of individual constitutions GJ Jacobsohn, ‘The Formation of Constitutional Identities’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar, 2011) 129. 42  For constitutional pluralism in the EU see J Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) 14 European Law Journal 389; see also the contributions in Avbelj and Komárek (n 41); elementary N MacCormick, ‘The Maastricht-Urteil: Sovereignity Now’ (1995) 1 European Law Journal 259. 43  However, this constitutional pluralism may not lead to a mitigation of the primacy of Union law, yet J Komárek, ‘Institutional Dimension of Constitutional Pluralism’ in Avbelj and Komárek (n 41) 231, 232 ff, especially 238 ff.

12  Werner Schroeder B.  Rule of Law as Value and Principle It has already been mentioned that the rule of law was first referred to as a ‘­principle’ in the Amsterdam Treaty and has only mutated into a ‘value’ with the Lisbon Treaty. Although questions of terminology should not be overrated in Union law, the question arises what normative consequences this renaming may have. Most scholars take the position that nothing has changed from the point of view of the legal discipline. They continue to use the term ‘principles’ as it represents a common category of legal hermeneutics.44 They interpret the ‘linguistic turn’ as an indication for the theoretical uncertainties of the law of the Union in the dealing with constitutional principles. In addition, they rely on the case-law of the ECJ which continues to refer to ‘constitutional principles’45 and ‘principles’46 in the context of the rule of law and fundamental rights. It is indeed problematic to use the term ‘values’ in Article 2 TEU because it is a meta-legal term. Values shall, beyond the realm of legal norms, guide the individual in decision-making situations to ethically ‘right’ conduct. They articulate general considerations on the basis of which one state of affairs is declared preferable in relation to another state of affairs.47 As moral strategies they only function on the basis of a consensus on a set and the content of values which cannot, however, be assumed and realised at any given time.48 In the light of the distinction between the values of democracy and the rule of law in Article 2, first sentence TEU and the other values in the second sentence and in the preamble of the TEU which refer to the Enlightenment idea of the human person and the European society and social model,49 it becomes manifest that also in regard to the values of the Union there is no consensus.50 However, the distinction between principles and values can be normatively reconstructed on the basis of the law of the Union itself. First of all, values, insofar as they are laid down in black letter-legal texts such as Article 2 TEU, refer to doctrinal principles which shall guide decision-makers in the Union and which can be made operable in the Union legal system by means of

44 See von Bogdandy (n 27) 11, 22 f; Calliess (n 24) para 8 with further references; Hilf and Schorkopf (n 21) para 21. 45  Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission (n 13) paras 281, 285; Case C-355/04 P Segi and Others v Council [2007] ECR I-1657, para 51; Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, para 45. 46  Opinion Avis 2/13 Avis au titre de l‘article 218, paragraphe 11, TFUE (n 15) para 167. 47  N Luhmann, Soziale Systeme: Grundriß einer allgemeinen Theorie (Frankfurt am Main, Suhrkamp, 1987) 433. 48  As to the relativity of values see KR Popper, The Open Society and its Enemies, vol 1: The Spell of Plato (London, Routledge, 2002). 49  Calliess (n 24), para 30 says that the values in Art 2 sentence 2 are actually not values ‘of the’ Union. 50  Mangiameli (n 4) para 7. Uncertainty about the existence of European values is also visible in the debate whether or not to include a reference to God in the European constitution; see Hilf and Schorkopf (n 21) para 14.

The EU and the Rule of Law 13 adopting more specific legal rules. There exist, however, different interpretations of the function of principles in the law of the Union.51 In this context, principles are understood in a pragmatic manner. In a general manner, they are understood as legal norms which do not state specific rights or duties, but which are of a general nature and are in need of being concretised by the legislative, the executive and the judiciary. It is in particular the courts that identify, by drawing on principles, values, interests and goods which become an element of a balancing decision as legally relevant and make use of these in order to structure the legal order. Thus, the ECJ has, for instance, derived the principle of legal certainty from the principle of the rule of law.52 In such a case, principle can even turn into a self-standing standard of legality. In addition, in the Union legal system, values as being ethical, supra-positive norms have an orientation and ordering function.53 They are therefore of an ­identity-building and legitimacy-creating character.54 This is also the function of the rule of law and of the other values mentioned in Article 2 TEU which shall endow the Union with a particular identity,55 particularly towards the outside visà-vis other authorities, that is, on the international level, as laid down in ­Article 3 paragraphs 1 and 5 TEU and Article 8 TEU as well as in the context of the Common Foreign and Security Policy (CFSP), as shown in Article 21 paragraph 2, Article 32 and Article 42 paragraph 5 TEU, but also towards the inside vis-à-vis the Union citizens inasmuch as they can form the basis of a common political conscience.56 The third point is that values have therefore a legal and ethical double-nature. Legal norms concretise values and transform them from the societal system into the legal system. This double-nature of the rule of law as a value of the Union and a principle of Union law also becomes manifest in the distinction between different kinds of values in Article 2, first sentence TEU and Article 2, second sentence TEU. In Article 2, second sentence TEU values such as pluralism, tolerance, solidarity are characterised as contents of the European societal model, that have no legal character. The Union is not ‘founded’ on these values but presupposes them as societal values. This distinction is taken further in the provision on the sanctions procedure in Article 7 paragraph 1 TEU which solely refers to the ‘legally relevant values’ in the meaning of Article 2 paragraph 1 TEU. The ambiguous approach of values in the Union’s constitution has also left terminological traces in the ECJ’s case-law. In the context of human dignity, the Court of Justice speaks,

51  Von Bogdandy (n 27) 11, 20; also J Bengoetxea, The Legal Reasoning of the European Court of J­ustice: Towards a European jurisprudence (Oxford, Clarendon Press, 1993) 183 ff; Schroeder (n 9) 262 ff. 52  See Case C-234/04 Kapferer [2006] ECR I-2585, paras 20 ff. 53  U Di Fabio, ‘Grundrechte als Werteordnung’ (2004) 59 Juristenzeitung 1, 3. 54  C Calliess, ‘Europa als Wertegemeinschaft’ (2004) 59 Juristenzeitung 1034. 55  See Commission ‘Communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based’ COM (2003) 606 final, 3. 56  Von Bogdandy (n 27) 14.

14  Werner Schroeder on the one hand, of ‘fundamental values’ laid down in the national constitutions, but on the other hand also of a ‘general principle of [Union] law’.57

C.  Normative Character of the Rule of Law Next to its general function as a legitimacy-creating value, the rule of law has particular normative effects in the Union’s legal system. i.  Binding Legal Norm If a norm is referred to as a value, this means to elevate it on the political or ethical level. In terms of legal doctrine, this creates problems. It notably gives rise to the question of how the values which are laid down in the Union’s constitution are interpreted and applied. Are they subject to judicial control or a standard for such a control? First of all, one must refer to the fact that the rule of law is enshrined in Article 2 TEU, ie in a legal text, and has therefore normative character. This proposition is emphasised by the wording and system of the Treaty, namely by pointing out that the rule of law is ‘common’ to the Member States and that the Union is ‘founded’ on it, amongst others (Article 2 TEU). The normative character of the rule of law also becomes manifest in Article 3 paragraph 1 TEU which makes it the Union’s primary goal to promote its values as well as in Article 13 paragraph 1 TEU which makes the promotion of values the reference point of the ‘institutional framework’ of the Union. Both the Union’s institutions and the Member States are legally bound to the treaty objectives of the Union, as also follows from Article 4 paragraph 3 TEU. The normative character of the rule of law further becomes manifest in the references in the sanctions procedure pursuant to Article 7 TEU and the accession procedure pursuant to Article 49 TEU. In these cases, concrete legal consequences are tied to the respect for and the promotion of the rule of law. This presupposes that the rule of law itself is of legal nature. Moreover, Article 2 TEU only constitutes the black-letter law manifestation of principles which have already been developed by the ECJ in the 1980s as unwritten general principles of law.58 By deriving concrete rules from these legal principles, for example, duty to provide legal protection mechanisms from the principle of the rule of law59 or sanctions for the non-involvement of the European Parliament from the democracy principle,60 the Court of Justice has established the normative

57 

Case C-36/02 Omega (n 38) paras 23, 32, 34. C-29/69 Stauder v Stadt Ulm [1969] ECR 419, para 7 ‘fundamental human rights’; Case C-138/79 Roquette v Council (n 36) para 33; Case C-294/83 Les Verts v Parliament (n 11) paras 23 ff (rule of law); Case C-36/02 Omega (n 38) paras 32 ff (human dignity). 59  Case C-294/83 Les Verts v Parliament (n 11) para 23. 60  Case C-138/79 Roquette v Council (n 36) para 33. 58  Case

The EU and the Rule of Law 15 character of these principles. Against this background, the reference in Article 2 TEU to the principles which the judiciary has already derived from Union law and their denomination as values is of solely declaratory nature. They do not change their already existing normative character. Their codification is relevant as a reference point for the sanctions procedure against the Member States pursuant to Article 7 TEU as well as for reasons of legal certainty. The legally binding character of the norms enshrined in Article 2 TEU can be illustrated in the light of the ECJ’s case-law in regard to its predecessor provision. Although the provisions on the objectives of the Treaties in Articles 2 and 3 EEC Treaty and in the preamble were drafted in programmatic language, they contained, in the view of the Court of Justice, not only a political, but also a normative decision-making programme61 which has a legally binding controlling effect.62 ii.  Emanation into the Union Legal Order In addition, the rule of law as a constitutional principle constitutes one of the substantive foundations of the Union’s constitution.63 In the Union, the rule of law has, together with the other values referred to in Article 2 TEU, a programmatic function. Their respect by the Member States is evoked in Article 2, second sentence TEU, and for the Union itself this provision serves as characterisation of the classical structural features of the liberal constitutional model.64 Due to the systematic position at the beginning of the Treaties, its profound character, its open wording as well as its significance similar to goal and value clauses in the constitutions of some Member States, Article 2 TEU constitutes the foundation of a membership in the Union.65 As an element of the constitutionalisation, the principle of the rule of law does not only permeate the Union constitution itself, but the entire Union legal order and all legal relationships within the scope of application of Union law, that is, the relationships between the institutions, the Member States as well as the Union citizens, and vice versa. This emanatory effect is particularly familiar to scholars of German constitutional law which is strongly influenced by a ‘Wertordnungsdenken’

61  Case C-126/86 Giménez Zaera v Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social [1987] ECR 3697, para 14; see also C-339/89 Alsthom v Sulzer [1991] ECR I-107, paras 8 f; Ipsen (n 23) 558 ff. 62  See also K Lenaerts, Le juge et la constitution aux États-Unis et dans l’ordre juridique européen (Brussels, Bruyant, 1988) 258; Jacqué (n 12) 273 ff; see Case C-24/62 Germany v Commission of the EEC [1963] ECR 131, 68. 63  Also some national constitutions have such a theme. For example, the principle of human dignity of Art 1 para 1 of the Basic Law is according to Dürig the basic premise for the German legal order, G Dürig, ‘Der Grundrechtssatz von der Menschenwürde’ (1956) 81 Archiv des öffentlichen Rechts, 117, 119; Di Fabio (n 53) 1, 5 f ‘Quellcode’ for the German constitutional law. 64  Hilf and Schorkopf (n 21) para 9; von Bogdandy (n 27) 11, 22. 65  Calliess (n 54) 1036.

16  Werner Schroeder (system of value-reasoning).66 However, the law of the Union does not merely draw on the inspiring effect of the principle of the rule of law on the actors within the Union legal order. Its promotion is, according to Article 3 paragraph 1 TEU, one of the most important objectives of the Union and its institutional framework (Article 13 paragraph 1 TEU). The realisation of the principle of the rule of law therefore pertains to the legal decision-making programme for the Union’s institutions which determines the handling of their discretionary powers67 and constitutes a guideline for the interpretation of other provisions of the Treaties.68 By virtue of Article 4 paragraph 3 TEU, this objective entails legal effect vis-à-vis the Member States which must refrain from any measure which could jeopardise the attainment of the Union’s objectives69 and shall vice versa do everything to facilitate the achievement of the Union’s tasks.70 iii.  Basis for the Mutual Recognition of Legal Decisions of the Member States The respect for a rule of law minimum standard also constitutes the basis for one of the fundamental principles of the Union legal order, ie the principle of mutual recognition. The concept of mutual recognition71 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 Member State’s own legal order.72 Important fields of application of this principle are the Union citizenship where the Member States (as well as the Union) must recognise the grant of citizenship by another Member State73 or legal acts in the Area of Freedom, Security and Justice (AFSJ) such as the European Arrest Warrant on the basis of Framework Decision 2002/584/JHA.74

66  See von Bogdandy (n 27) 11, 16; elementary to ‘Wertordnung‘ (system of values) which the fundamental rights of the Basic Law establish, see BVerfGE 7, 198, BVerfG, Judgment of 15 January 1958—1 BvR 400/51 (Lüth), 205 ff; hereto Di Fabio (n 53) 1, 5 ff. 67  See for previous objective Art 2 EEC Treaty Case C-6/72 Europemballage Corporation and Continental Can Company v Commission [1973] ECR 215, para 24; respectively Case C-14/68 Walt Wilhelm and Others v Bundeskartellamt [1969] ECR 1, para 5. 68  See Case C-126/86 Giménez Zaera v Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social (n 61) para 14; see also C-339/89 Alsthom v Sulzer (n 61) paras 8 f; Opinion Avis 1/91 Avis 1 v 91 (n 15) para 18. 69  Since Case C-14/68 Walt Wilhelm and Others v Bundeskartellamt (n 67) para 6 f. 70  Case C-71/76 Thieffry v Conseil de l‘ordre des avocats de la Cour de Paris [1977] ECR 765, guiding principle 1; see also Case C-265/95 Commission v France [1997] ECR I-6959, paras 32 ff. 71  Originally constructed by the Commission, based on the Cassis de Dijon ruling of the CJEU (Case C-120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649); as strategy for the functional alignment of the Common Market, see Commission ‘White Paper form the Commission to the European Council: Completing the Internal Market’ COM (85) 310 final, paras 61 ff. 72  W Schroeder, ‘Hintergrund, Ziele und Ausformung von Anerkennungs- und Herkunftslandprinzip’ in Studiengesellschaft für Wirtschaft und Recht, Anerkennungs-/Herkunftslandprinzip in Europa (Wien, Linde, 2010)1. 73  Case C-200/02 Zhu and Chen [2004] ECR I-9925, para 37. 74  See Case C-303/05 Advocaten voor de Wereld (n 45) paras 28 f.

The EU and the Rule of Law 17 It becomes clearer and clearer, however, that in some Member States the judicial and administrative procedures do not satisfy the rule of law minimum standards which are presupposed by the principle of mutual recognition. In such a case, there is no basis in Union law for the mutual recognition of procedures and decisions of national authorities and courts75 since this mutual recognition must be performed in conformity with primary law, ie in conformity with Article 2 TEU and the Fundamental Rights Charter (FRC). Hence, the ECJ has expressly obliged the Member States in its judgment regarding the Member States’ responsibility for examining an asylum application pursuant to the Regulation (EC) Number 343/2003 (the socalled Dublin II Regulation) to suspend their legal cooperation with other Member States which massively violated rule of law minimum standards.76 The fiction of the respect for the rule of law in all Member States in Article 2 TEU which forms the basis for the mutual recognition, particularly in the AFSJ can in the meantime not be sustained without limitations any more. More recent legal acts demonstrate that the Union legislator has become aware of this problem. For instance, differently from the Framework Decision 2002/584/JHA on the European Arrest Warrant,77 according to the Directive 2014/41/EU regarding the European Investigation Order in criminal matters78 it is not required any more that the obtaining and using of evidence in criminal proceedings before one national court is automatically recognised by the courts of other Member States. Also Article 3 paragraph 2 sub-paragraph 2 of the Regulation (EU) Number 604/2013 (Dublin III Regulation) obliges the Member States when determining which Member State is responsible for the examining of an application for international protection—in conformity with the case-law of the ECtHR and the ECJ—to also check whether ‘there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in [another] Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 [FRC]’. In such case, the determining Member State must not transfer the applicants in that other Member State. These examples demonstrate that the disregard by a Member State of rule of law minimum standards in the scope of application of EU law also has effects on the legal cooperation with other Member States and can even entail a shifting of competences among Member States. The fact that rule of law deficits in certain

75  See Case C-135/08 Rottmann [2010] ECR I-1449, paras 48 ff for the limits of recognition of granting citizenship by a Member State by the others in arbitrary decisions. 76  See Joined Cases C-411/10 and C-493/10 N S and Others [2011] ECR I-13905, para 86, regarding Reg (EC) No 343/2003 (Dublin II); K Hailbronner and D Thym, ‘Vertrauen im europäischen Asylsystem’ (2012) 31 Neue Zeitschrift für Verwaltungsrecht 406; see also MSS v Belgium and Greece (2011) 53 EHRR 2, paras 340, 344 ff; see also Opinion Avis 2/13 Avis au titre de l‘article 218, paragraphe 11, TFUE (n 15) para 168. 77  [2002] OJ L190/1, last amended by Framework Decision 2009/299/JHA, [2009] OJ L81/24. 78  [2014] OJ L130/1.

18  Werner Schroeder Member States can become a ‘systemic’ problem for the Union as a whole (see also the contribution of D Kochenov and C Closa in this volume)79 constitutes the point of departure for different approaches to protect the rule of law within the Union which refer to themselves as ‘reverse Solange’ or ‘Solange horizontal’ doctrine.80 They demand that in cases of serious rule of law deficits the competences among the Member States (horizontally) as well as between the Union and the Member States (vertically) are to be redistributed. In effect, the Union shall supervise the Member States and the Member States shall mutually supervise themselves in regard to the respect for the rule of law and fundamental rights.81 We shall come back to this aspect in due course. iv. Respect for the Rule of Law in the Context of the Exercise of the Public Authority of the Union Insofar as the Treaty assumes that the Member States are bound by the rule of law, the question arises whether they are bound solely within the scope of application of Union law. There seems to exist a systematic discrepancy between Article 2 TEU which refers to a general duty of the Member States of ‘respect for human rights’ and the more specific obligation of Article 51 paragraph 2 FRC. The latter provision, in its interpretation by the ECJ,82 obliges the Member States on the respect for the Union fundamental rights only within the scope of application of Union law.83 How can this discrepancy be understood? And should the same not apply also for the rule of law so that it is treated equally as the fundamental rights in terms of Union law? As a matter of fact, Article 2 TEU does not contain any limitation in regard to the scope of application of the values and principles, but the duty of the Member States and the Union to exercise public authority per se by respecting the rule of law and human rights.84 Thus, Article 7 TEU that builds upon Article 2 TEU presupposes that the Member States organise their legal order in such a manner that serious violations of the values and principles referred to in Article 2 TEU do

79  C Closa, D Kochenov and JHH Weiler (‘Reinforcing rule of law oversight in the European Union’ EUI Working Paper RSCAS 2014/25, p 5) call that ‘The all affected principle’. 80  I Canor, ‘My Brother’s Keeper? Horizontal Solange’ (2013) 50 CML Rev 383; von Bogdandy, ­Kottmann, Antpöhler, Dickschen, Hentrel and Smrkolj (n 31) 508 ff; von Bogdandy and Ioannidis (n 5) 91 ff. 81  Canor (n 80) 384 ff. 82  See Case C-617/10 Åkerberg Fransson EU:C:2013:105, para 29; Case C-198/13 Julian Hernández and Others EU:C:2014:2055, paras 33 ff; C Latzel, ‘Die Anwendungsbereiche des Unionsrechts’ (2015) 23 Europäische Zeitschrift für Wirthschaftsrecht 658. 83  In response to that von Bogdandy et al vote to safeguard the essence of the fundamental rights of the Union beyond the scope of the Charter, namely within the Art 20 TFEU protected ‘Kernbestand’ of citizenship, von Bogdandy, Kottmann, Antpöhler, Dickschen, Hentrel and Smrkolj (n 31) 508 ff. 84  Ultimately, von Bogdandy, Kottmann, Antpöhler, Dickschen, Hentrel and Smrkolj (n 31) 509; Hilf and Schorkopf (n 21) para 18, but misinterpreted as ‘völkerrechtliche Pflicht’.

The EU and the Rule of Law 19 not occur—irrespective of whether the area where the violations occur is subject to specific Union law obligations or not. The duty to respect these principles is therefore of a general nature and also applies in the area of autonomous action of the Member States.85 The discrepancy between Articles 2 and 7 TEU, on the one hand, and Article 51 paragraph 1 FRC, on the other hand, can be solved if the duty in Article 2 TEU is not taken to include the compliance with every single fundamental right of rule of law principle, ie the entire acquis unionaire in this field, but the basic ‘respect’ of the rule of law and fundamental rights as such as well as their ‘essence’.86 There is a lack in terms of this basic respect of a Member State for the rule of law if there exists a ‘systemic deficit’ in regard to the respect for the rule of law in this Member State, ie if systematic violations occur which indicate a fundamental disregard or inability of this Member State to respect the rule of law. It is to be discussed later in this article when this situation actually arises.

IV.  CONTENT OF THE RULE OF LAW

In the debates on the problems of systematic rule of law deficits in the Member States, it is commonly presupposed that there more or less exists a consensus on the content of the rule of law.

A.  Necessity of a Determination of the Content of the Rule of Law It is problematic, however, to operationalise the rule of law vis-à-vis the Member States without having clarified its content before. The Commission has sought such clarification in its Communication of 11 March 2014 on a ‘New framework to strengthen the rule of law’ (see the contribution of M Crabit and N Bel). It relies, however, exclusively on the case-law of the ECJ when identifying the e­ lements of the rule of law.87 The ECJ judgments cited in the Communication refer to the principles of legality, of legal certainty, of prohibition of arbitrariness, of ­effective legal protection as well as of equality before the law, but only in regard to the conduct of the Union’s institutions and mostly in the field of European c­ ompetition

85  Commission ‘Communication on Article 7 of the Treaty on European Union’ COM (2003) 606 final (n 55) para 1.1; M Ruffert, ‘EUV Art 7’ in C Calliess and M Ruffert (eds), EUV/AEUV: Kommentar 4th edn (Munich, CH Beck, 2011) para 4. 86  A von Bogdandy, M Kottmann, C Antpöhler, J Dickschen, S Hentrel, M Smrkolj, ‘A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine’ in A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford, Hart Publishing, 2015) 235, 243 with further references regarding the EU term ‘Kerngehalt’ or essence. 87 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, 4 and Annex 1.

20  Werner Schroeder law. This does not suffice to give shape to a Union rule of law in the meaning of Article 2 TEU, notably when taking into account that the exercise of public authority by Union institutions and national authorities cannot be equally treated in legal terms. In my opinion, it is not easy to form a consensus on the ‘core meaning of the rule of law as a common value’, particularly because there exist also in the M ­ ember States themselves different conceptions of the content of fundamental constitutional principles.88 A concretisation of the rule of law beyond the mere reference in Article 2 TEU is, however, needed from the point of view of the rule of law itself. The principle of legal determinateness requires that legal provisions which impose a certain code of conduct on legal subjects are sufficiently specific so that the persons affected by them can align their conduct with these provisions.89 In addition, the policies adopted in some Member States have shown that a lack of consensus on the content of the Union rule of law might be understood by some Member States as an invitation to test the limits of Article 2 and 7 TEU and therefore to shift the threshold for sanctions measures by the Union. The disagreement on the content of the Union rule of law can be explained, first of all, by the fact that the Treaties do not contain explicit statements on q ­ uestions of the rule of law. To be sure, Articles 7 and 49 TEU refer to the rule of law via ­Article 2 TEU. Yet, the Treaties do not define what is to be understood by this concept, but presuppose it. This is utterly different in the case of the principle of democracy which is meanwhile extensively described in Articles 9 et seq TEU and which is also specified by means of secondary law concerning voting rights according to Article 14 paragraph 2 TEU, Articles 22 and 223 TFEU as well as concerning the citizens’ initiative pursuant to Article 11 paragraph 4 TEU and concerning transparency according to Article 15 TFEU.90 There might be a number of reasons why the conceptions as to the content and significance of the rule of law in Europe are highly unclear, even though the preamble of the ECHR speaks of a ‘common heritage’ of the rule of law in Europe and even though the preamble of the TEU refers to the rule of law as a ‘universal value’.91 One of these reasons is certainly that the concept of the rule of law has a more limited European tradition than the concept of democracy. To be sure, the concept of rule of law can be long traced back, at least in the English history of

88 

The Commission is recognising that, see ibid. Joined cases 212 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, para 10. 90  C Schönberger, ‘EUV Art 9’ in Grabitz, Hilf and Nettesheim (n 21) paras 10 ff; A Th Müller, ‘Die Europäische Bürgerinitiative als Instrument direktdemokratischer Legitimation—und die (problematische) Ausgestaltung ihrer materiellen Schranken im Sekundärecht’ in W Schroeder and W Obwexer (eds), 20 Jahre Unionsbürgerschaft: Konzept, Inhalt und Weiterentwicklung des grundlegenden Status der Unionsbürger, Europarecht, Beiheft 1 (Baden-Baden, Nomos, 2015) 169, 170 ff. 91  P Cruz Villalón, ‘Vergleich’ in A von Bogdandy, P M Huber and P Cruz Villalón (eds), Handbuch Ius Publicum Europaeum, Band I: Grundlagen und Grundzüge staatlichen Verfassungsrechts (Heidelberg, CF Müller, 2007) § 13 para 60. 89 

The EU and the Rule of Law 21 law.92 The concepts of rule of law in the UK, of ‘Rechtsstaatlichkeit’ in Germany and of ‘État de droit’ in France have, however, developed a special meaning and impact only after the nineteenth century.93 Even more, most EU Member States’ constitutions are familiar with the concept of the rule of law only since the 1970s.94

B.  Doubts Regarding the Usefulness of the Concept in Legal Terms Against this background, it does not come by surprise that in some Member States (though less in the German-speaking area) relevant doubts exist not only regarding the content, but also regarding the usefulness of the rule of law. Sometimes the rule of law is referred to as a metaphysical dogma without any real use.95 Underlying this skepticism is the objection which cannot be easily dismissed, ie that the rule of law does not constitute a straightforward concept, but rather forms a bundle of various criteria which are in need of concretisation depending on the respective context.96 It is correct that constitutional law problems are primarily to be solved on the basis of constitutional principles that are closer to the problem and form part of the meta-concept of the rule of law, for example, principles such as legal certainty or separation of powers; the concept of rule of law should be drawn upon only subsidiarily. At the same time, the rule of law is far from being a mere ideological formula without any normative self-reliance. It has an ­autonomous role where the challenge is to link these various elements in a systematic ­fashion in order to thereby obtain functional insights.97 Another objection criticises the rule of law as a static and system-stabilising concept which is blind in regard to the need for social change.98 This criticism of a bourgeois, liberalistic idea of the principle of the rule of law misses its target, since it overstretches the rule of law. The principle has indeed a system-stabilising function inasmuch as it prevents that the instruments of power that are at the disposal

92  Therefore, Dicey understood the term primarily as characteristic of the English constitution, see Dicey (n 39) 187 ff. 93  See comparative analysis M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) 312 ff, esp 314 ff; L Heuschling, État de Droit: Rechtsstaat: Rule of Law (Paris, Dalloz, 2002) 384ff; proof/references for the background of history of ideas regarding the principle of the rule of law see Schmidt-Aßmann (n 22) paras 10 ff. 94  Classen (n 39) 57 f. 95  M Loughlin, ‘The Rule of Law in European Jurisprudence’ European Commission for Democracy through Law (Venice Commission) CDL-DEM (2009)006—Study 512/2009, 29 May 2009, 2 ff; in ­Germany nuanced critique by P Kunig, Das Rechtsstaatsprinzip: Überlegungen zu seiner Bedeutung für das Verfassungsrecht der Bundesrepublik Deutschland (Tübingen, Mohr, 1986) 89 ff, 457 ff. 96  Expressly recognised in settled case-law of the German Constitutional Court, eg BVerfGE 65, 283, BVerfG, Judgment of 22 November 1983—2 BvL 25/81, p 290. 97  Schmidt-Aßmann (n 22) paras 8 f; see also BVerfGE 57, 250, BVerfG, Decision of 26 May 1981—2 BvR 215/81, p 276 where the principle of the rule of law ‘selbst’ (itself) is used as a systematically ­relevant anchor for requirements of procedures. 98  JAG Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 15.

22  Werner Schroeder of every public authority are abused for the purpose of a reign of arbitrariness. It is, however, not the mission of the rule of law to initiate social and political change. This is effectuated by political principles such as the social state principle99 or other mechanisms within the political system.

C.  Formal and Material Aspects of the Union Rule of Law On another level, there is a discourse which exists on whether the rule of law principle shall rather be based on a formal (‘thin’) or a material (‘thick’) concept.100 Behind this discourse lies the question of whether the rule of law principle is identical to claims regarding ‘process and form’ or whether it also contains demands concerning the content of legal norms, for instance, in regard to fundamental rights. Formal interpretations of the rule of law as mere obligation to respect the law were for a long time not only common in the UK.101 The principle of legality also constitutes the core element of the formal ‘Rechtsstaatlichkeit’ in Germany, Austria and France.102 In fact, representatives of a ‘negative’ or ‘thin’ concept of the rule of law caution even today against overburdening the concept with diverse social objectives so that it does not become devoid of content and practically irrelevant.103 This rejection can, however, not apply regarding the claim that legal provisions must satisfy elementary requirements of justice in regard to an obligation of fairness and prohibition of arbitrariness. This claim for a just creation, application and interpretation of legal norms is secured by virtue of binding the legislator to the constitution and particularly to the fundamental rights and other material constitutional principles such as fairness, equality and certainty of law.104 In some ­Member States, it is even enshrined in black-letter constitutional law in the form of binding the constitutional legislator itself to material principles of the rule of

99  For example, in Germany, the term ‘sozialer Rechtstaat’ (social state of law) used in Art 28 para 1 sentence 1 of the Basic Law then connects terminologically with the principle of the rule of law, see H Zacher, ‘§28: Der Sozialstaat’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts der ­Bundesrepublik Deutschland: Band II: Verfassungsstaat 3rd edn (Heidelberg, CF Müller, 2004) paras 109 ff. 100  EO Wennerström, The Rule of Law and the European Union (Uppsala, Lustu Forlag, 2007) 76 ff. 101  See especially Dicey (n 39) 188; critically: PP Craig, ‘Formal and Substantive Conceptions of the Rule of Law: an Analytical Framework’ (1997) Public Law 467, 470 f; see comparative analysis: Krygier (n 39) 236 f, who considers Dicey’s formal understanding to be ‘only consistent with “common law constitutionalism”’; regarding Germany see Schmidt-Aßmann (n 22) para 19. 102  Classen (n 39) 63 ff. 103  See eg J Raz, ‘The Rule of Law and its Virtue’ (1977) 93 LQR 193, 210 f. 104  See eg R Dworkin, A Matter of Principle (Oxford, Oxford University Press, 1985) 9 ff; regarding Germany see W von Simson, ‘Die Deutschen und ihr Rechtsstaat’ (1982) 21 Der Staat 97, 109; regarding the historical dispute between formal and material understanding of the rule of law M Sellers, ‘An Introduction to the Rule of Law in Comparative Perspective’ in M Sellers and T Tomaszewski (eds), The Rule of Law in Comparative Perspective (Dordrecht, Springer, 2010) 1, 3 f.

The EU and the Rule of Law 23 law such as fundamental rights and the fundamental principles of justice.105 This conception of the rule of law which is based on a combination of formal and material aspects has become the accepted one in many Member States.106 The formal binding of the public authority to the law as the nucleus of the rule of law is also an element of the Union rule of law.107 Article 19 paragraph 1, second sentence TEU manifests, however, that the Union law contains also material aspects of the rule of law. This does not only include the fact that the public authority of the Union is exercised by respecting supra-positive elements of justice (‘the law’).108 The ECJ has for this reason devised the rule of law as a general principle of law from the concept of ‘the law’ as it is now enshrined in Article 19 ­paragraph 1, second sentence TEU. Also rule of law principles such as the principle of proportionality pertain to the concept of law (see the contribution of Huber).109 Yet, also the concept of the ‘law’ itself, which originally served as the seat of the Union rule of law, refers, due to the systematic place of Article 19 TEU within the Treaty, to the judicial function of the Court of Justice of the EU (see also the contribution of von Danwitz). The major reference point for the Court of Justice for the development of the rule of law was therefore for a long time Article 6 ECHR.110 First of all, the Community of law defines itself in view of the obligation of comprehensive and effective legal protection.111 Further elements of the rule of law, as emphasised by the ECJ, such as the right to a fair trial and independent courts112 are also directed towards legal protection. Without doubt, the fundamental rights which have been discovered by the Court of Justice in Union law are inseparably linked to the idea of a material rule of law113 and to the constitutional binding nature of the legislator to higher-ranking norms such as the prohibition of arbitrariness. The ECJ has however always placed these rights in the context of

105  eg in Germany under the Basic Law, Art 1 para 3 and Art 79 para 3, see K Stern, Das Staatsrecht der Bundesrepublik Deutschland, vol 1: Grundbegriffe und Grundlagen des Staatsrechts, Strukturprinzipien der Verfassung 2nd edn (Munich, Beck, 1984) 775. 106  T Bingham, The Rule of Law (London, Allen Lane, 2010) 37. 107  Joined Cases C-46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, para 19 ‘any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis…’. 108  See Rodríguez Iglesias (n 12) 125, 128. 109  See Case C-29/69 Stauder v Stadt Ulm (n 58) para 7; Case C-4/73 Nold KG v Commission [1974] ECR 491, para 13; Joined Cases C-46/87 and 227/88 Hoechst v Commission (n 107) para 19, according to which the ‘protection against arbitrary or disproportionate intervention’ is understood to be a general principle of (EU) law. 110 Unlike in its jurisprudence to fundamental rights, the CJEU did not regard comparatively national elements of the rule of law, see Case C-44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, para 20. 111  Case C-294/83 Les Verts v Parliament (n 11) para 23; Case C-222/84 Johnston v Chief Constable of the Royal Ulster Constabulary (n 13) para 18. 112  Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, para 17. 113 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v ­Council and Commission (n 13) para 285.

24  Werner Schroeder the legal protection in the Union. According to the Court of Justice, the respect for these rights is a requirement for the legality of acts ‘which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty’.114 As the ECJ has repeatedly pointed out, the material elements of the rule of law must integrate themselves into, and subordinate themselves to the system of legal protection in the Union.115 To be sure, one can derive from the case-law further propositions on legal principles which can be related to a material perception of the rule of law. For instance, legal certainty and protection of legitimate expectations are also considered as legal principles recognised by Union law.116 They are, however, not expressly referred to as an element or even as an essential part of the rule of law as it is the case with issues of legal protection. Beyond the question of legal protection, the jurisprudence of the Court of Justice cannot serve as the basis of a concept of the rule of law. Recourse to the law of the Council of Europe, of which all EU Member States are parties, may be instrumental in localisation of the rule of law and the definition of its content as a principle of European law. The rule of law is not only mentioned in the preamble of the Statute as one of the foremost principles of the Council of Europe which are based on a common European heritage. The respect for these principles by the Member States is expressly called for in Article 3 of the Statute. In a manner similar to Article 2 TEU, the preamble of the ECHR refers to the political and legal traditions of the Member States to which the rule of law also belongs. Yet, also in the law of the Council of Europe and in the ECHR the rule of law is not defined (see the contribution of Polakiewiscz and Sandvig). In 2008, the Committee of Ministers stated that no ‘list of key rule of law requirements accepted by the Council of Europe, let alone a definition’ can be devised. The Council of Europe ‘works pragmatically on a daily basis to promote and strengthen the rule of law in and among its member states’.117 This pragmatic approach may well function in the Council of Europe. For reasons of legal certainty, however, a clearer positioning of the rule of law is needed in the denser Union law which allows for binding measures against the Member States. The Venice Commission of the Council of Europe has made efforts in view of a concretisation of the rule of law. Its 2011 Report represents major progress compared to the afore-described pragmatic approach.118 From the perspective of continental European scholars, its characterisation of the elements of a common European rule of law is, however, too strongly focused on the English experiences.

114 ibid. 115 

Opinion Avis 2/13 Avis au titre de l‘article 218, paragraphe 11, TFUE (n 15) para 177. C-10/69 Portelange v Smith Corona Marchant International [1969] ECR 309, para 15/16; Joined Cases 205 to 215/82 Deutsche Milchkontor GmbH [1983] ECR 2633, paras 27 ff. 117  Council of Europe, ‘The Council of Europe and the Rule of Law—An Overview’ CM (2008) 170, paras 22, 29. 118  European Commission for Democracy through Law (Venice Comission), ‘Report on the Rule of Law’ CDL-AD (2001)003rev, 4 April 2011, paras 36 ff. 116  Case

The EU and the Rule of Law 25 Approaches of many continental European States which relate material principles such as separation of powers or proportionality to the rule of law are not mentioned in the Venice Commission Report. It is interesting to note that the case-law of the ECtHR in regard to the rule of law is more complex (see the contribution of Steiner). To be sure, as becomes manifest in a similar fashion in Article 3 of the Statute of the Council of European and Article 2 TEU, human rights and the rule of law cannot be equated. However, the two areas are interdependent; in particular in regard to the obligation of effective legal protection, human rights and the rule of law overlap.119 For the ECtHR, the rule of law is inherent to the guarantees of the ECHR; it is the basis and guiding principle for the application and interpretation of the Convention.120 Yet, also the ECtHR has refrained from defining the rule of law. It conceives of the rule of law as a sum of its single manifestations and as an open concept. Similarly to the ECJ, it starts from a formal, procedural law understanding of the rule of law and links it via Articles 6 and 13 ECHR with the claim for an independent and effective legal protection procedure. The ECtHR’s claims vis-à-vis the Member States for separation of powers and other rule of law-related institutional guarantees are primarily to be seen in the light of such procedural law obligations.121 In addition, material principles are also relevant in the ECtHR jurisprudence as becomes particularly visible in regard to the obligation of legal certainty which is associated with the foreseeability and clarity of the law.122 Yet, the concept of the rule of law is not a self-standing concept in the case-law of the ECtHR. It rather serves to underscore the importance of other legal principles which shall assure in their entirety that legal decisions are not ‘arbitrary’.123 This reflects a material understanding of the rule of law.

D.  Essence of the Union Rule of Law What remains is the insight that the rule of law constitutes a ‘conceptual puzzle’ in the Union legal order since there exist different conceptions of its significance and its content. At the same time, from the point of view of Union law, it is indispensable to determine the rule of law more precisely since it is referred to in black-letter treaty law (Article 2 TEU) and since its respect or not entails legal consequences. Inasmuch as the rule of law constitutes a general principle

119 

Council of Europe (n 117) 23 ff. Golder v UK Series A no 18 (1975) 1 EHRR 524, para 34; Engel and Others v Netherlands (1976) 1 EHRR 647, para 69; Amuur v France (1996) 22 EHRR 533, para 50. 121  Council of Europe (n 117) 38 ff, 54 ff. 122  The Sunday Times v UK (No 1) Series A no 30 (1979) 2 EHRR 245, para 49; Müller and Others v Switzerland Series A no 133 (1988) 13 EHRR 212, para 29; Beian v Romania (No 1) App no 30658/05 (ECtHR, 6 December 2007) para 39. 123 Fundamentally, Winterwerp v Netherlands Series A no 33 (1979–80) 2 EHRR 387, para 39. 120 

26  Werner Schroeder of law, it is necessary to draw on both the pertinent case-law of the ECJ and the ECtHR as well as on the common constitutional traditions of the Member States (Article 6 paragraph 3 TEU). Due to the above-explained common European constitutional tradition 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. At the same time, the vehement warning that the rule of law might be overstretched and the emphasis on the formal aspects of the rule of law show that the containment of public authority by institutional arrangements is one of the core concerns of the rule of law. This also corresponds to the jurisprudence of the ECJ and the ECtHR which underscores the procedural safeguarding of justice. Among these principles figure the principle of hierarchy of norms and of legality, ie the binding of the legislator to the constitution and of the administrative and judicial powers to the law (see the contribution of Merli), the transparency and perceptibility of norms (see the contribution of Österdahl). The principles are, for instance, mentioned in Article 9 paragraph 3 of the Spanish Constitution as elements of the principle of the rule of law.124 In addition, also the principles of separation of powers and of effective legal protection by independent courts (see the contribution of Badó and Bóka) are counted among the formal institutional guarantees of the rule of law. As far as the implementation and understanding of the principles in a more detailed fashion are concerned, there exist significant differences among the Member States’ constitutions. In view of the strong tradition of a formal approach to the rule of law in Europe, consensus at the Union level should be most easily achieved on the fact that the rule of law at least comprises material standards and criteria of justice that are related to the juridical shaping of decision-making processes. Characteristic examples are principles such as legal certainty (see the contribution of Gamper), protection of legitimate expectations and proportionality (see the contribution of Huber). They shall ensure a just solution for each individual case and are therefore partly located in the fundamental rights if they are not only understood as objective norms, but also as manifestations of individual rights.125 As Article 52 paragraph 1 of the FRC makes clear in relation to the principle of proportionality, these material standards are intrinsically linked to the fundamental rights. They are part of the rule of law but also serve the protection of fundamental rights. To the extent that a restriction of fundamental rights is effected without a legal basis within the meaning of ­Article 52 paragraph 1, first sentence FRC,126 that this restriction is disproportionate given certain common interests, that it does not satisfy the claims of legal certainty or does not allow for a legal protection m ­ echanism, one

124  See the comparative analysis of various EU Member States’ constitutions, Classen (n 39) in ­particular 63 ff. 125  See for the analogue debate in Germany Kunig (n 95) 350 ff. 126  Joined Cases C-46/87 and 227/88 Hoechst v Commission (n 107) 19.

The EU and the Rule of Law 27 may assume that also a violation of the rule of law has occurred.127 In contrast, the individual fundamental rights are not necessarily part of the rule of law,128 as is also made clear by Article 2 TEU which conceives the rule of law and fundamental rights as different principles. Moreover, these fundamental rights are sufficiently assured by the FRC. Fundamental rights violations on the part of Member States may be sanctioned, within the scope of application of Union law, according to Article 51 paragraph 1 of the FRC and, beyond that, in serious cases on the basis of Article 7 TEU.129 There is no constitutional law surplus value in qualifying single human rights additionally as an element of the rule of law.

V.  SYSTEMIC CRISES OF THE RULE OF LAW IN THE MEMBER STATES

In the past, it was discussed whether the Union itself met rule of law standards.130 The ECJ has considerable influence in that the Union was transformed into a Community of law, and this dispelled the pertinent concerns.131 This particularly holds true in the aftermath of the Kadi ruling, in which the Court of Justice spoke of ‘constitutional principles’ the respect of which it had to guarantee, in the context of the review of Union sanctions against private persons suspected of terrorist activities. The ECJ referred to the principle of the Community law and the ‘­principles’ which were mentioned in Article 6 paragraph 1 at that time, in which the Court of Justice made the standard for the interpretation and validity of secondary law.132 Thus, the ECJ has emphatically positioned itself as the guardian of the rule of law in regard to the Union legislature.

127  See Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission (n 13) para 316, ‘the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement’. 128  At most, one can say that guarantee of the institution of fundamental rights is plainly an essential component of a state under the rule of law, see HR Lipphardt, ‘Grundrechte und Rechtsstaat’ (1986) 13 Europäische Grundrechte-Zeitschrift 149, 152, 160 ff. 129  Von Bogdandy, Kottmann, Antpöhler, Dickschen, Hentrel and Smrkolj (n 31) 496 f, 500 ff state a gap in relation to the protection of violations of fundamental rights in Union law by the Member States which are committed outside the scope of Union law. That gap should be closed by the Union citizenship (Art 20 TFEU), which shall also protect the essence of fundamental rights (see below, s VII Conclusion). 130  The German Constitutional Court in particular had reservations with regard to the recognition of fundamental rights by the former Community, BVerfGE 37, 271 (n 37) (Solange I). 131  But see the critique by J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CML Rev 669; for systematic improvement of the fundamental rights situation see J Kühling, ‘Fundamental Rights’ in von Bogdandy and Bast (n 27) 479 ff. 132  See Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission (n 13) paras 281, 303, 316.

28  Werner Schroeder A.  Risks for the Union Rule of Law Arising from Systemic Crises The situation in some Member States, which increasingly undermine the rule of law by attacks on the independence of the judiciary, the separation of powers, legal certainty and other principles, is a particular reason for concern. In this regard, it must be pointed out that in view of the respect due to the different constitutional traditions of the Member States not every national restriction of the principle of rule of law can be overstated into a threat of European integration. Single cases can be brought to the ECJ by relying on the classical instrument of Union supervision, ie the treaty infringement procedure according to Article 258 TFEU; this ensures that the law is observed in the meaning of Article 19 paragraph 1 TEU. Alas, this procedure is only the suitable one if a Member State has violated a specific rule of Union law. There are, however, not always pertinent provisions of Union law imposing obligations on the Member States in those areas where the Member States harm the rule of law principle.133 In addition, the infringement procedure relates to single cases; it cannot make manifest and legally handle the overall dimension of a large-scale threat to the rule of law in a Member State.134 In as much as certain rule of law principles are regularly and consciously disobeyed by the Member States, the rule of law itself is jeopardised. This is the case if the violations of the rule of law are wide-spread because the relevant Member States generally lack the will or also the ability to comply with the rule of law.135 Only in constellations for which the term ‘systemic deficit’ has meanwhile become well established,136 the rule of law in the Member States, as envisaged by Article 2 TEU, is really at stake.137 This term describes a situation in which the

133  Nevertheless the CJEU ruled, that the reduction of the retirement age of Hungarian judges c­ onstitutes an unjustified age discrimination, Case C-286/12 Commission v Hungary EU:C:2012:687; see also U Belavusau, ‘On Age Discrimination and Beating Dead Dogs: Commission v Hungary’ (2013) 50 CML Rev 1145. 134  KL Scheppele, ‘Making Infringement Procedures More Effective: A Comment on ­Commission v Hungary’ (Europaeus law, 3 May 2014) http://europaeuslaw.blogspot.co.at/2014/05/kim-lanescheppele-making-infringement.html. 135  While Hungary and Poland now fall into the first category, because the governments concerned do actively rebuild the judiciary, administration and control about the media, for states like Greece, Bulgaria or Romania on the other hand it is typical that they only have insufficient institutional capacities to maintain the rule of law in judiciary and administration, Commission ‘Report from the Commission to the European Parliament and the Council: On Progress in Romania under the Cooperation and Verification Mechanism’ COM (2012) 410 final, 3 and Commission ‘Report from the Commission to the European Parliament and the Council: On Progress in Bulgaria under the Cooperation and Verification Mechanism’ COM (2012) 411 final, 5. 136  It stems from the judicature of the ECtHR and the practice of the Council of Europe, see Broniowski v Poland (2005) 40 EHRR 21 para 189: ‘the violation … originated in a widespread problem which resulted from a malfunctioning of Polish legislation and administrative practice and which has affected and remains capable of affecting a large number of persons’, which revealed the ‘systemic nature’ of the problem; see G Ress, ‘The Effect of Decisions and Judgments of the ECtHR in the Domestic Legal Order’ (2005) 40 Texas International Law Journal 369, 372; Council of Europe, Committee of Ministers ‘Resolution Res(2004) 3 on the Judgements revealing an underlying systemic problem’ 12 May 2004. 137  von Bogdandy and Ioannidis (n 5) 60 f.

The EU and the Rule of Law 29 other Member States’ trust in the rule of law situation in a Member State, which forms the basis for the mutual recognition of legal acts and the cooperation in mutual solidarity within the Union system, is distressed.138 In such a situation, it will also normally be the case that the normative expectations of the affected Union citizens are massively disturbed and that a general loss of confidence in the law and public institutions has occurred. Such system-relevant developments threaten the cohesion of the Union as a Community based on law.139 The contribution of Toggenburg and Grimheden provides further indications as to what criteria can be applied to identify a ‘systemic deficit’. Reports of the Council of Europe, the EU Justice Scoreboard or the World Bank’s Worldwide Governance Indicator on the non-compliance with rule of law standards can provide indications in this regard.140 The supervisory procedure of the Commission which was presented to the public in March 2014 and which is based on the framework provisions on the protection of the rule of law in the Member States also refers to criteria in the presence of which ‘systemic dangers’ exist for the rule of law in the Member States (see the contribution of Crabit and Bel).141 The concept of the ‘systemic deficit’ has also juridical legitimacy within the Union system. Article 3 paragraph 2 sub-paragraph 2 of the Regulation (EU) Number 604/2013 on determining which Member State is responsible for the examining of an application for international protection (Dublin III Regulation) has meanwhile recognised this concept in black-letter law. Thus, the Union legislature reacts to the pertinent case-law of the ECJ.142 In conclusion, this constitutes a justified attempt to devise a concept which allows distinguishing particularly dangerous situations for the rule of law from merely isolated cases. This already provides an important contribution to the structuring of Article 2 TEU and to the rationalisation of the rule of law discourse.

B.  Consequences of a ‘Systemic Deficit’ for the Respect of the Rule of Law The development of this concept becomes relevant in view of the legal consequences arising from it. If a ‘systemic rule of law deficit’ in a Member State exists, the Union comes under pressure to act, since the affected Member State is not 138  See Joined Cases C-411/10 and C-493/10 N S and Others (n 76) para 86 on ‘systemic flaw’ in the asylum system of a Member State. 139  Kochenov (n 5). 140  Von Bogdandy and Ioannidis (n 5) 73, 79 and 84. 141 Commission ‘Communication from the Commission to the European Parliament and the ­Council’ COM (2014)158 final (n 87) 7: ‘to address threats to the rule of law … which are of a systemic nature’. 142 [2013] OJ L180/31. The provision links the responsibility of the Member States, inter alia, whether ‘there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in (another) Member State, resulting in a risk of inhuman or degrading treatment’ and adopts the case law established by Joined Cases C-411/10 and C-493/10 N S and Others (n 76) para 86.

30  Werner Schroeder (any more) willing or able to assure the respect for the rule of law. The rule of law presumption pursuant to Article 2 TEU cannot be maintained any more in regard to this Member State and its responsibility for the respect of this principle shifts in favour of a complementary responsibility of the Union and/or the other Member States. It is precisely this message which is sent by Article 7 TEU which allows for opening a sanctioning procedure against a Member State in case of a ‘clear risk of a serious breach’ of the rule of law on the part of a Member State. In view of this, what is the added value of the identification of a ‘systemic deficit’? When comparing the terminology used in both formula, it becomes manifest that the situation of a ‘clear risk of a serious breach’ as described in Article 7 TEU is even more serious than the situation of a ‘systemic deficit’. In fact, the concept of the ‘systemic deficit’ shall not legitimise the opening of a sanctioning procedure pursuant to Article 7 TEU, which is referred to as the ‘nuclear option’ and which shall therefore, from the point of view of many observers, not be applied at all in practice.143 The concept’s task is rather to legitimise additional legal consequences below the threshold of the sanctioning procedure in case of a widespread and systemic violation of the rule of law by a Member State. Beside the possibility to suspend the system of mutual recognition among the Member States by relying on the loss of the mutual confidence in the rule of law, in such cases also other mechanisms of supervision of the relevant Member States shall be put into place. This is particularly important for the reason that treaty infringement procedures are not an adequate instrument to react to systemic ­violations of the rule of law by Member States, as has been explained above.

VI.  PROCEDURE FOR THE IMPLEMENTATION OF THE RULE OF LAW VIS-À-VIS THE MEMBER STATES

As the implementation of the sanctioning procedure pursuant to Article 7 TEU presents itself as the last resort to react to a serious violation of the rule of law by the Member States,144 the Commission proposed an additional supervisory procedure in March 2014 (see the contribution of Crabit and Bel). It has the purpose of reacting to risks to the rule of law ‘which are of a systemic nature … as a result of widespread practices of public authorities and the lack of domestic redress’145 in the forefront of situations which fall into the scope of application of Article 7 TEU.

143  See the speech by the former Vice President of the Commission V Reding, ‘Safeguarding the Rule of Law and Solving the “Copenhagen Dilemma”: Towards a New EU-Mechanism’ SPEECH/13/348 (available at http://europa.eu/rapid/press-release_SPEECH-13-348_en.htm). 144  Commission ‘Communication on Article 7 of the Treaty on European Union’ COM (2003) 606 final (n 55), Introduction. 145 Commission ‘Communication from the Commission to the European Parliament and the Council’ COM (2014)158 final (n 87) 6 ff.

The EU and the Rule of Law 31 This mechanism is based on a three-step process. First of all, a dialogue between the Commission and the Member States leads to the evaluation of the situation by the Commission. If it identifies a systemic risk to the rule of law in a Member State, it adopts a recommendation of how the Member States can address the identified problems within a certain time-limit. In the framework of a follow-up procedure, the Commission monitors the measures adopted by the Member State or will, if the Member State does not react to the recommendation, initiate the sanctioning procedure pursuant to Article 7 TEU. The Commission can involve other actors such as the European Union Agency for Fundamental Rights (FRA), the Council of Europe as well as the Venice Commission in this process and solicit these for information on the rule of law situation in the affected Member State.146 The implementation of this mechanism was discussed, for the first time, in January 2015 in relation to the adoption of a number of laws by the Republic of Poland which massively impair the independence of the Constitutional Court and of the media in that country. The Communication of the Commission gives rise to a number of questions. In particular the question arises whether Article 7 TEU may be complemented by additional procedures. At least the wording of the provision does not provide any indication that the sanctioning procedure constitutes an exclusive legal mechanism in regard to non-compliance with the rule of law by the Member States. In addition, the effet utile principle which aims at an effective implementation of the objectives and policies of the Union147 suggests that additional mechanisms may be established in order to guarantee that the Member States respect the objectives of the Union law, as long as these mechanisms are with respect to their legal consequences not incompatible with the existing procedures.148 For the purpose of proportionality, it is even reasonable that the Union, even in the forefront of the sanctioning procedure, identifies on the basis of exchange of information and monitoring measures whether a systemic violation of the rule of law by a Member State exists149 and, in the course of a dialogue with the respective State, seeks to bring an end to such violation or to avoid it in the first place. If the Commission establishes an additional mechanism for the purpose of supervising the Member States, it must respect the principle of conferral pursuant to Article 5 paragraph 1 TEU. As becomes manifest in Article 288 paragraphs 1

146 

ibid, 7. See previously Case C-26/62 Van Gend en Loos v Administratie der Belastingen (n 25) 25; especially Case C-231/96 Edilizia Industriale Siderurgica v Ministero delle Finanze [1998] ECR I-4951, para 34; F Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56 MLR 19; Schroeder (n 9) 155, 396 and 434 ff. 148  Von Bogdandy and Ioannidis (n 5) 59, 67 name correctly the case law regarding state liability since Joined Cases C-6 and 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357, para 33; ultimately also Closa, Kochenov and Weiler (n 79) 9; different view F Schorkopf, ‘EUV Art 7’ in Grabitz, Hilf and Nettesheim (n 21) para 58. 149  Commission ‘Communication on Article 7 of the Treaty on European Union’ COM (2003) 606 final (n 55) para 2. 147 

32  Werner Schroeder and 5 TFEU, this principle also applies in regard to the adoption of non-binding acts which are expressly referred to as legal acts in the Treaties. However, Article 292, fourth sentence TFEU endows the Commission with a general competence to adopt recommendations as is obvious from the structure of this provision.150 Thus, the Commission may well, as envisaged in its ‘New EU Framework to Strengthen the Rule of Law’, adopt recommendations in regard to the Member States, as it has the competence to do so. Equally, the Commission may, in the forefront of Article 7 TEU, adopt other non-binding measures against the ­Member States inasmuch as the principle of conferral does not apply to these measures (implementation of monitoring measures, adoptions of opinions, resolutions etc).

VII.  CONCLUSION—STRENGTHENING OF THE RULE OF LAW THROUGH COOPERATION

Thirty years after the Court of Justice of the European Union (CJEU) has emphasised that the Union constitutes a Community based on the rule of law one must seriously ask the question whether some of the Member States are prepared and able to meet this criterion. Not only from the political point of view, but also from the perspective of Union law there is a need for action since systemic deficits with respect to compliance with the rule of law by the Member States undermine the legitimacy and functionality of the Union system. The Hungarian and Polish examples make it clear that Union law must be developed further in order to effectively safeguard the respect for the rule of law which is a pre-requisite for the very existence of the Union. Article 7 TEU is not suitable for this purpose. Given the majorities required by this provision to adopt a decision, the threshold for an intervention on the part of the Union is legally and politically shifted to a virtually unattainable level. The term ‘nuclear option’ which is used by Union politicians in this context makes it clear that this procedure primarily serves for purposes of deterrence and is only devised for extreme and exceptional cases concerning the rule of law which go beyond what has been part of European post-war history. A policy of gradual weakening of the rule of law which continuously defers the limit for an intervention on the part of the Union can barely be grasped by the sanctioning procedure. In borderline situations between the Union and its Members States, the law of the Union does not provide for the use of coercive measures, but for cooperation and considerateness. The success of such a course of conduct is guaranteed by the fact that meanwhile a fundamental legal and political interlinking at all levels of organisation between the Union and the Member States has taken place.151 In this system of ‘shared government’ on the European level, important decisions are 150  This also corresponds with the previous legal situation according to Art 211, second dash EC Treaty. 151  Scharpf (n 10) 323.

The EU and the Rule of Law 33 made by the Union’s institutions and by the Member States in a mostly cooperative manner.152 This also explains why it is difficult for the Union to opt for a hard legal confrontation with Member States, as envisaged by the sanctioning procedure pursuant to Article 7 TEU. This makes it all the more important that the respect for the rule of law in the Member States is guaranteed by alternative mechanisms. As evidenced by the contributions in this volume, there exists a range of possibilities in this regard. There are political solutions such as the establishment of a Copenhagen Commission,153 reports of the European Parliament, the creation of an early warningsystem and a rule of law supervision by the Commission or even a structured dialogue with involvement of the FRA.154 In addition, one may also think of legal solutions resulting in legal acts of affected Member States not being recognised by the other Member States or that the rights from Union citizenship according to Article 20 TFEU are being activated since in case of a serious and systematic violation of the rule of law the essence of Union citizenship is violated (‘reverse Solange’ doctrine).155 Genuine Union law solutions contrast with solutions which rely on international law structures and procedures such as referring to opinions from the Council of Europe and the Venice Commission. In order to identify the European standard in regard to the rule of law, it may, as already mentioned, also be helpful to draw on the practice of organisations and entities beyond the EU, for example the Council of Europe. To the extent, however, that effective legal instruments are needed, internal Union solutions might be preferable because international law solutions, as recently practised in the sovereign debt crisis,156 presuppose consensus among the Member States.157 The same holds true for a modification of primary law which is unrealistic in view of the overall situation of European integration. The Commission’s New Framework of 11 March 2014 which is geared to the primary and secondary law in force is therefore a good instrument to tackle the rule of law crisis. It is based on the politics of cooperation which is more characteristic of the Union and thus preferable compared to a more confrontational course of action. This helps to avoid criticism on the part of the newer Member States concerning the Union’s paternalism in the field of the rule of law. In addition, the constitutional balance between the Union and the Member States is not changed (see the contributions of Claes and Schusterschitz). It is important to tell

152  DJ Puchala, ‘On Blind Men, Elephants and Integration’ (1971) 10 Journal of Common Market Studies 267 ff. 153  JW Müller, ‘The Idea of Democracy Protection in the EU Revisited’ (Verfassungsblog, 23 June 2013) http://verfassungsblog.de/the-idea-of-democracy-protection-in-the-eu-revisited/. 154  Toggenburg (n 4) 6. 155  Von Bogdandy, Kottmann, Antpöhler, Dickschen, Hentrel and Smrkolj (n 31) 489. 156  See for the European Stability Mechanism (ESM) Case C-370/12 Pringle EU:2012:756, paras 55 ff. 157  Besides, the undermining of Art 7 TEU through actions under international law by the Member States is legally rejected, see Schorkopf (n 148) 59.

34  Werner Schroeder those who consider such a procedure to be too soft and not sufficiently effective that, as experience from the field of human rights shows, also non-binding measures of international institutions have high authority and may positively influence States’ respect for the law. The added value of the new rule of law framework of the Commission particularly lies in the fact that on the basis of a dialogue between the Commission and Member States, the Member States’ obligations from the rule of law can be specified. Accordingly, the biggest shortcoming of the Union rule of law, ie the indeterminacy as regards its content, is overcome.

Part II

Core Elements of the Rule of Law

36

2 Principle of Legality and the Hierarchy of Norms FRANZ MERLI

I.  LEGALITY AS THE CORE OF THE RULE OF LAW

T

HE RULE OF law and its counterparts in other languages (such as Rechtsstaat, état de droit or prééminance de droit) have been described as ideas of a ‘programmatic character’,1 as ‘compelling candidates for teleological understanding’,2 or ‘open-ended concepts which are subject to permanent debate and have to be constantly redefined’.3 A recent article called the rule of law ‘one of the most elusive legal concepts’,4 and another one found it ‘in trouble’ as it ‘has been defined in so many ways that it has become fuzzy and confused’.5 However, even if it is difficult to say what the rule of law actually is and what it comprises, everyone will easily agree that legality is a core element of it. ­Legality, one might think, is in principle self-evident and undisputed. And legality is situated in the overlapping area of different conceptions of the rule of law and its equivalents.6 So we seem to be on safe ground here.

1 R Grote, ‘Rule of Law, Rechtsstaat and “Etat de droit”’ in C Starck (ed), Constitutionalism, Universalism and Democracy: a Comparative Analysis; The German Contributions to the Fifth World Congress of the International Association of Constitutional Law (Baden-Baden, Nomos, 1999) 271. 2  M Krygier, ‘Rule of Law’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 240. 3  Grote (n 1) 271. Similarly CD Classen, Nationales Verfassungsrecht in der Europäischen Union (Baden-Baden, Nomos, 2013) 61–62. 4  A von Bogdandy and M Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What has been Done, What can be Done’ (2014) 51 CML Rev 59, 62. 5  D Beatty, ‘Law’s Golden Rule’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Oxford and Portland, Hart Publishing, 2009) 99. 6 eg M Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 Southern California Law Review 1307, 1318.

38  Franz Merli II.  LEGALITY AS A COMPLEX CONCEPT

Legality may be simple compared to the entirety of the rule of law. But what is true for the rule of law as a whole is true for legality, too: the closer you look at it, the more blurred the image becomes. Legality is a complex concept for a number of reasons. I will mention just three of them: first, legality may be an express constitutional requirement7 or an implicit precondition of legal systems. Paradoxically enough, it may, at least in some respects, be an extra-legal, that is, political and/or moral standard.8 It may be partly the one and partly the other;9 and in a certain sense, it may be both at the same time if a constitution expressly demands compliance with general principles of natural law.10,11 Second, legality may be a rule and it may be a ­principle.12 A given act will be either legal or illegal. If legality prohibits retroactive criminal legislation the prohibition can only be respected or ignored. So, in these contexts, legality is a rule. But, if legality requires a certain determinacy of statutes, it is a matter of degree. And when assessing a whole legal system one might find it more or less in conformity with legality. So, in these contexts, legality is a p ­ rinciple. Third, in a conceptual perspective legality describes a multi-polar

7  Some constitutions use the term ‘legality’—eg Art 9 para 3 of the Spanish Constitution; most prescribe what legality stands for—eg Art 20 para 3 of the German Grundgesetz. On the European level, legality is part of the rule of law requirements laid down, ia, in Art 3 of the Statute of the Council of Europe, the preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and in the preamble, Art 2 and Art 49 of the Treaty on European Union (TEU). In addition, the constitutions as well as the European instruments allow limitations on the exercise of fundamental rights only if provided for by law (eg Arts 8–11 para 2 ECHR, Art 52 para 1 Charter of Fundamental Rights (CFR)); for specific cases, see eg, Art 7 ECHR and Art 49 CFR. 8  See the case of the UK until the Constitutional Reform Act of 2005 which mentions ‘the existing constitutional principle of the rule of law’ came into force. 9  The Austrian Constitution expressly provides for the legality of the executive branch (Art 18) and did not find it necessary to do the same for the judiciary. 10  See the preamble of the French Constitution. 11  For other countries, see the overviews in R Hofmann and others (eds), Rechtsstaatlichkeit in Europa (Heidelberg, CF Müller, 1996); A von Bogdandy, PC Villalón and PM Huber (eds), Handbuch Ius Publicum Europaeum vol 1 (Heidelberg, CF Müller, 2007); Classen (n 3); JR Silkenat, JE Hickey Jr and PD Barenboim (eds), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Cham, Heidelberg, New York, Dordrecht, London, Springer, 2014). 12  For the EU it is a ‘value’ too (Art 2 TEU); this should not make a difference, though: L Pech, ‘“A Union founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359, 366–67.

Principle of Legality and Hierarchy of Norms 39 relation, a r­ elation of correspondence between certain acts of a certain actor and a certain legal standard:

Actor

Act

Correspondence

Law

Act

Each of these elements is a variable, and, correspondingly, turning to each of the boxes in the graphic one can ask a number of questions. For the ‘actor’ box on the left: which actor—all persons and organisations, just powerful organisations, or only the state? For the ‘act’ boxes below the actor: which acts—factual or legal, internal or external? For the ‘correspondence’ box in the centre: obeying a rule or attaining a goal? Respecting the law or applying the law? For the ‘law’ box on the right: which law—statutory law, parliamentary law, constitutional law, domestic law or international law, general principles of law, even the rule of law or the principle of legality itself? It does not take a permutation of the variables to see a certain complexity here. However, I will try to simplify matters instead of complicating them. The graphic may help to explain a few points when I turn to the meaning of legality in a ­step-by-step analysis starting at zero.

III.  THREE MEANINGS OF LEGALITY

A.  Legality as Compliance with the Law At the most basic level, the focus in the diagram is on the correspondence (the box in the centre): legality simply means compliance with the law. In other words: the rule of law requires that the law rules.13 This is a trivial aspect of legality, yet a very important one both theoretically and practically. Theoretically, the claim to be observed stands for the normative character of law and thus denotes the law’s essence. Under most definitions, unless

13  Krygier (n 2) 233–34. Similarly J Raz, The Authority of Law 2nd edn (Oxford, Oxford University Press, 2009) 212; Classen (n 3) 63.

40  Franz Merli being observed at least by and large, a legal system is not even law.14 And without law there is no rule of law. This is a conceptual consequence, of course, but it is also a practical observation available in any failing state. And the experience of the new democracies in Central and Eastern Europe as well as the difficulties of the EU to get the Member States to do what they are supposed to do15 and to convince them of the legality of some of its own actions16 remind us of the importance of having law,17 equally, applying the law and taking the law seriously. This last aspect, in turn, teaches us that legality is to a considerable extent a matter not just of legal instruments, enforcement and control, but also of attitude, of a certain habitus and thus a central element of a legal culture.18 In Europe, this includes diverging ways of interpreting and following the law and various degrees of the necessary belief in the law’s capacity to bind.19

B.  Legality as Duty of the State On the next level, the focus is on the actor (the left box). Here legality means a compliance with the law which is expected specifically of the government or the state and its agents. The concentration on the actor ‘government’ obviously results from the function of the rule of law as an instrument of control of political power.20 Legality is a means to restrain and to make predictable the exercise of

14 

eg HLA Hart, The Concept of Law (London, Oxford University Press, 1961) 113. von Bogdandy and Ioannidis (n 4). 16  See, eg, the reasoning of the German Bundesverfassungsgericht’s reference to the ECJ to rule on the validity of the European Central Bank’s measures to save the Euro, BVerfG, 2 BvR 2728/13 of 14 January 2014, registered at the ECJ as Case C-62/14 Gauweiler and others, English translation available at www.bverfg.de/en/decisions/rs20140114_2bvr272813en.html; or, more generally, S Prechal, S de Vries and H van Ejken, ‘The Principle of Attributed Powers and the “Scope of EU Law”’ in L Besselink, F Pennings and S Prechal (eds), The Eclipse of the Legality Principle in the European Union (Alphen aan den Rijn, Kluwer, 2011) 213. In respect of international law as part of the rule of law see Lord Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67, 81. 17  For instance not only private law, but also law on the execution of judgments and law enforcement. For the complicated relationship between economic development and the existence, importance and certainty of law in the Central European countries see B Schönfelder, Vom Spätsozialismus zur ­Privatrechtsordnung. Eine Untersuchung über die Interdependenz zwischen Recht und Wirtschaft am Beispiel von Gläubigerschutz und Kredit (Berlin, Berliner Wissenschafts-Verlag, 2012). 18  M Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in Palombella and Walker (n 5) 45–69; BZ Tamanaha, ‘The History and Elements of the Rule of Law’ (2012) Singapore Journal of Legal Studies 232, 246–47. 19  From a theoretical perspective A Somek, ‘Legalität heute: Variationen über ein Thema von Max Weber’ (2008) Der Staat 428; on national cultures of EU Law A Hatje and P Mankowski, ‘“Nationale Unionsrechte”—Sprachgrenzen, Traditionsgrenzen, Systemgrenzen, Denkgrenzen’ (2014) ­Europarecht 155; on the importance of practical reasoning and procedural elements of the rule of law in the light of the inevitable indeterminacy and the argumentative character of law Rosenfeld (n 6) 1337–45; N MacCormick, Rhetoric and the Rule of Law (Oxford, Oxford University Press, 2005); J Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1, 54–61. 20  eg R Hofmann, ‘Die Bindung staatlicher Macht’ in Hofmann and others (n 11) 3–12; Grote (n 1) 305; Lord Bingham (n 16) 78–80. 15 

Principle of Legality and Hierarchy of Norms 41 political power. Therefore, legality requires that not only private actors but also the state itself be subordinated to the law—in general, and in particular when making rules.21 The rule of law is more than a rule by law.22 Such a conception presupposes that there is law which can be applied to the state. And under modern conditions of functional differentiation, it at least strongly suggests that there is law which is specifically made for and directed at the state. If Dicey still thought that one judge-made law should bind all,23 today l­egality entails the existence of public law, and, taking into account that the law-making function of the state should not go unchecked, either, it demands a c­ onstitution24 or at least an international instrument as a functional substitute for it.25

C.  Legality as Dominance of Parliamentary Law On a third level, the focus is on the law (the right box). Here legality means compliance with parliamentary law and, what is more, dependence on parliamentary law. The executive and the judicial branches are not only to act in conformity with parliamentary law. They are bound in a stricter way as they must not act at all unless authorised by parliamentary law. This gives parliamentary statutes a dominant role which of course is owed to their democratic character: they are publicly discussed in the presence of the opposition and decided upon by persons whom we elected, and that is why we are expected to accept them. However, this third meaning of legality is not as universally shared as the other two aspects. It makes sense only in a democracy, and even in the democracies of Europe, you will find a great variance.26 Details and exceptions notwithstanding, the necessity of a specific parliamentary decision may extend to all essential questions of politics (including limitations of fundamental rights but also, for instance, important decisions at EU level or in international ­relations),27 to all burdens imposed by sovereign right, in particular to interferences with

21  The big exception in this last respect, the UK, has been undergoing a remarkable change: see TRS Allan, ‘Questions of Legality and Legitimacy: Form and Substance in British Constitutionalism’ (2011) 9 International Journal of Constitutional Law 155. 22  Krygier (n 2) 234. 23  AV Dicey, Introduction to the Study of the Law of the Constitution 9th edn (London, Macmillan, 1948) 193–95, 202–03. For a critical commentary from a comparative perspective see Krygier (n 2) 237. 24  For the constitutionalisation of the rule of law in modern legal systems see Grote (n 1) 286, 288, 294, 301, 305–06. For remaining differences see Krygier (n 2) 245–46. 25  eg for the UK and the Netherlands: Classen (n 3) 107–08. 26  For an overview, see Hofmann and others (n 11); von Bogdandy, Villalón and Huber (n 11); Classen (n 3) 226–30. For a more detailed comparison G Jurgens, M Verhoeven and P Willemsen, ‘Administrative Powers in German and English Law’ in Besselink, Pennings and Prechal (n 16) 37; for a choice of cases, see N Dorsen and others, Comparative Constitutionalism. Cases and Materials 2nd edn (St Paul, Minnesota, West, 2010) 265–84, 317–45. 27  Germany: F Ossenbühl, ‘Vorrang und Vorbehalt des Gesetzes’ in J Isensee and P Kirchhof (eds), Handbuch des Staatrechts der Bundesrepublik Deutschland vol V, 3rd edn (Heidelberg, CF Müller, 2007) § 101 paras 35–70.

42  Franz Merli ­fundamental rights,28 just to major curtailments of basic rights29 or, to the contrary, the legislative powers of parliament may be limited to enumerated questions.30 The differences are less in substance than in the scope of ­application. The common European standards cannot be very strict under these circumstances. The European Convention on Human Rights (ECHR) and perhaps the EU ­Charter of Fundamental Rights, too, are concerned with accessible and clear, but not parliamentary, law; the EU treaties in the Lisbon version attribute most, but not all important matters to a legislative procedure.31 As a preliminary result, we can say that legality, understood in this threefold way, if observed, secures first the effectiveness and thus the very existence of law; secondly, legality allows the control of political power and thirdly, legality furthers the democratic legitimacy of its exercise. However, to achieve these goals, legality demands a certain quality of the law.

IV.  LEGALITY AND THE QUALITY OF LAW

In notable agreement with specific constitutional provisions and the practice of constitutional courts,32 comparative lawyers and legal philosophers spell out a list of requirements: that ‘laws be made public, general, clear …, not retrospective but prospective, and consistent; that laws do not demand impossible conduct’33 and that they are precise enough to make the exercise of power predictable.34 ‘If the laws are secret, retrospective, contradictory, impossible to know, to understand, to perform, … they do not add up to the rule of law’,35 and neither do statutes that lack the determinacy which is necessary to avoid arbitrariness and to allow a compliance control.

28 

Austria: F Merli, ‘Rechtsstaatlichkeit in Österreich’ in Hofmann and others (n 11) 92–93. This seems to be, if not the theory which recognises areas of original executive power and allows very broad or even implied statutory delegations, the result of the recent court practice in the UK: Allan (n 21). 30  Art 34 of the French Constitution or Arts 289, 294 of the Treaty on the Functioning of the European Union (TFEU). 31  For the ECHR system see, eg, Sunday Times v UK App no 6538/74 (1979) Series A no 30; Kruslin v France App no 11801/85 (1990) Series A no 176; Şahin v Turkey App no 44774/98 (2005); for the EU S Peers and S Prechal, ‘Art 52’ in S Peers and others (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2014) 1470–76. See also below at n 37. 32  For an overview see Classen (n 3) 65–67. For the jurisprudence of the ECtHR see A Woltjer, ‘The Quality of Law as a Tool for Judicial Control’ in Besselink, Pennings and Prechal (n 16) 99. 33  Y Hasebe and C Pinelli, ‘Constitutions’ in M Tushnet, T Fleiner and C Saunders (eds), Routledge Handbook of Constitutional Law (London, Routledge, 2013) 15; more elaborate L Fuller, The Morality of Law 2nd edn (New Haven, Connecticut, Yale University Press, 1969) 33–94; Raz (n 13) 214–16. 34  eg Grote (n 1) 290, 291; Lord Bingham (n 16) 69–70; Allan (n 21) 158, 159; von Bogdandy and Ioannidis (n 4) 71. 35  Krygier (n 2) 235. To be noted, this could be a problem for a vague rule of law (understood as a rule of law), too: it could ‘run afoul of its own requirements’: Pech (n 12) 376. 29 

Principle of Legality and Hierarchy of Norms 43 Of course, here like elsewhere, the devil is in the detail, and in particular the degree of the required elaborateness of parliamentary acts may vary depending on whether the focus is on the foreseeability of implementing acts or rather on the democratic accountability of the decision,36 depending also on the subject matter and in accordance with the respective legal culture. In the EU framework, if a matter is attributed to a legislative procedure, ‘essential elements’ entailing ‘political choices’ should be decided there, but that does not preclude delegating considerable discretionary power especially to agencies.37 In addition, most EU legislation is followed by implementing acts of the Member States, and in such a situation one has to take into consideration the combined effects and quality of EU and domestic rulemaking and double legality standards alike.38 Many authors, among them the members of the Venice Commission making its checklist for evaluating the state of the rule of law,39 categorise these requirements not as legality but legal certainty.40 I think, though, that unlike other qualities of law like stableness over time or respect for legitimate expectations they cannot be separated from legality because of the normative nature of law and compliance: law is an instrument to influence the will of its addressees. Law cannot be complied with if it does not exist, if it is unknown at all, unknown at the relevant time or to the relevant persons or not understandable to them, if it is contradictory, or if it demands the impossible. One cannot have legality without some minimum requirements of the quality of law, and therefore one should consider these requirements as parts of legality.

V.  LEGALITY AND THE HIERARCHY OF NORMS

In a similar way, legality necessarily entails a hierarchy of norms. If ­parliamentary law has to respect a constitution and if the remaining law must comply with parliamentary statutes there are at least three levels of a hierarchy.41 Considering

36  For this distinction see Ossenbühl (n 27); T von Danwitz, ‘Verfassungsrechtliche Herausforderungen in der jüngeren Rechtsprechung des EuGH’ (2013) Europäische Grundrechte Zeitschrift 253, 257–58; E Schmidt-Aßmann, ‘Das Demokratieprinzip’ in F Bultmann and others (eds), Allgemeines Verwaltungsrecht. Festschrift für Ulrich Battis (München, CH Beck, 2014) 99. 37 See Case C-355/10 European Parliament v Council of the European Union (Frontex) [2012] ECR I-0000 on the one hand, and Case C-270/12, UK v Council of the European Union and European ­Parliament (Short-selling) [2014] ECR I-0000 on the other hand. 38  cf H Eberhard, ‘Das Legalitätsprinzip im Spannungsfeld von Gemeinschaftsrecht und nationalem Recht’ (2008) 63 Zeitschrift für Öffentliches Recht 49, 72–77, 83–111. On problems and shortcomings see Besselink, Pennings and Prechal (n 16). 39 European Commission for Democracy through Law, ‘Report on the Rule of Law’ CDLAD(2011)003rev, 15. 40  See also A Gamper, in this volume. 41 cf PC Villalón, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Vergleich’ in von Bogdandy, Villalón and Huber (n 11) § 13 paras 66–72; Classen (n 3) 104, 226.

44  Franz Merli that under modern conditions some rulemaking power of the executive branch is inevitable, one more level is joined to the pyramid. Of course in reality in each developed legal system there are even more levels,42 and, to add some complexity, one can and must in some instances combine or even double hierarchies: in local government, in federal states, in the EU, in the Council of Europe. But a three-level hierarchy seems to be a conceptual necessity for any legal system that includes law-making and wants to adhere to the legality principle. The hierarchy is then the basis for judicial review.43

VI.  THE VALUE OF LEGALITY

At last, a word on the value of legality. Legality is a formal concept, the required features of the law are formal ones, and the hierarchy of norms as such is just a formal structure. Formality sometimes is discredited as ‘mere’ formality, and so-called ‘thin’ conceptions44 of the rule of law are often criticised.45 I disagree. Of course legality cannot substitute morality, of course it needs court control to be effective, and of course it is less than a rule of law ‘thickened’ by fundamental rights. But we should not underestimate it, and neither should we take it for granted. First, legality is the basis of any ‘thicker’ rule of law: one can have legality without fundamental rights but one cannot have fundamental rights without legality.46 Secondly, legality may be formal but it has substantive effects:47 by expecting them to comply with the law, legality takes people seriously as persons with their own will, their own capacity to self-determination, and thus in their own dignity, and by making the exercise of power foreseeable, it reduces arbitrariness and provides some ­equality

42  For EU law, P Craig and G De Búrca, EU Law 5th edn (Oxford, Oxford University Press, 2011) 108–19, identify five levels of norms; but they do not include individual decisions and Member States’ implementing measures. 43  The logical order is not always the order of discovery, though: in reality we sometimes recognise the hierarchy only by analysing the rules of review. 44 On the distinction and for examples of corresponding positions see P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 467. 45  eg Grote (n 1) 305: ‘The formal concept of the rule of law has been discredited by the political catastrophes of the twentieth century.’ 46  In this sense it is true that the ‘theoretical divide between formal and substantial approaches’ to the rule of law is ‘largely artificial’: Pech (n 12) 368. 47 For the following, see eg Rosenfeld (n 6) 1326–27; Raz (n 13) 219–23; S Shapiro, Legality (Cambridge, Mass, The Belknap Press of Harvard University Press, 2011) 392–400; Krygier (n 2) 237–38, 242; see also Fuller (n 33) 209–24 for the implications of the described qualities of the legal rule for a ‘relatively stable reciprocity of expectations between lawgiver and subject’; and Tamanaha (n 18) 241–43 for the downside of formal legality.

Principle of Legality and Hierarchy of Norms 45 and security for their lives. It is not a coincidence that there has never been a bad government that respected legality in the described, ‘merely’ formal sense.48 And finally, legality is an important practical concern: there are many states, in Europe and elsewhere, which still have ample room to improve their legality performance. For the EU, legality might be even more important than it is for states: lacking both a self-evident existence and coercive means, it needs trust. Legality is one of the foundations of trust.

48  In particular and contrary to common myths, the Nazi regime did not respect (formal) legality: B Rüthers, Entartetes Recht 3rd edn (München, CH Beck, 1994).

3 Access to Justice and Judicial Independence: Is There a Role for the EU? ATTILA BADÓ AND JÁNOS BÓKA

T

HE MODERN CONCEPT of ‘access to justice’ has undergone a number of fundamental transformations during recent decades to include sometimes quite diverging political principles, social objectives and organisational considerations.1 One must not forget, however, that the roots of the notion can be traced back to a fundamentally identical constitutional guarantee even though the formulation of the guarantee has been quite different in a number of legal systems. In common law countries, access to justice has grown out of the rule of law concept with the central idea of courts and judges being established by law. The German Basic Law of 1949 provides for the ‘right to a natural judge’ which is very close in meaning to a court and judge established by law with the tacit understanding that being established by law they also must be independent and impartial. Even the laconic wording of Article 66 of the French Constitution of 1958 on the obligation of civil and criminal courts to protect individual liberty has been interpreted in a way to favour access to justice.2 The European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR) is also a witness to these historical ties. The ECtHR has developed the concept of the right and access to a court based on Article 6(1) of the ECHR providing for a fair and public hearing by an independent and impartial tribunal established by law. In this context, access to court, that is, the right to institute proceedings before an independent and impartial court is one aspect of the right to a court.3 Just like most national legal systems, the jurisprudence of the ECtHR acknowledges that the right of access to a court must be practical and effective, and prohibitive costs, time-limits, immunities and other procedural bars might constitute an infringement of this fundamental right.

1  See eg the three waves of access to justice developments in the United States: M Cappelletti and B Garth, ‘Access to Justice and the Welfare State: An Introduction’ in M Cappelletti (ed), Access to Justice and the Welfare State (Florence, European University Institute, 1981) 1, 4. 2  E Storskrubb and J Ziller, ‘Access to Justice in European Comparative Law’ in F Francioni (ed), Access to Justice as a Human Right (Oxford, Oxford University Press, 2007) 177, 178–182. 3  Golder v the United Kingdom, 21 February 1975, Series A no 18, para 36.

Access to Justice and the EU 47 Of course, even a practical and effective access to a court is meaningless if the court is not independent and impartial or established by law. This study deliberately uses the term ‘access to justice’ instead of ‘access to a court’ to highlight the importance of this consideration. It is submitted that while in some jurisdictions the focus of the debate on access to justice has shifted to an obligation of the welfare state to professionally and financially assist citizens in obtaining appropriate remedies and create more accessible venues to process disputes, in a number of Member States of the European Union access to justice is still being obstructed by undue external pressures on courts and judges. It is not an overstatement that in the East Central European region the most characteristic and topical issues related to access to justice are connected to legitimate fears about the lack of independence and impartiality of the judiciary caused by a political and legal environment facilitating very subtle but systematic external pressuring. Therefore we consider it very important to return to a more traditional approach to access to justice and highlight some of the current issues from a regional—and especially Hungarian—point of view.

I.  CURRENT ISSUES CONCERNING JUDICIAL INDEPENDENCE

The principle and phenomenon of judicial independence can be examined from various aspects: the organisational independence of the judiciary, the existential security of the judge or the independence and impartiality of the judge performing his judicial functions.4 International agreements as well as international and domestic jurisprudence have managed to establish basic yet occasionally very restrictive and vague standards concerning judicial independence. The International Covenant on Civil and Political Rights adopted under the auspices of the United Nations provides basic guidance, but for European countries the ECHR and the jurisprudence of the ECtHR has proved to be a more important reference. In determining whether a body can be considered independent, the ECtHR has considered three fundamental criteria: (i) the manner of appointment of the members of the court and the duration of their term of office; (ii) the existence of guarantees against outside pressures; and (iii) the appearance of independence.5 However, these sources usually provide only soft guidelines as regards the separation of powers and the institutional aspects of the independence of judges. Appointment by the Parliament or the executive is permissible as long as appointees are free from undue influence or pressure when performing their adjudicatory duties. Similarly, no particular term has been set by the ECtHR as a necessary minimum, however, irremovability during the term of office is usually regarded as a core

4  PH Russel and DM O’Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville, University Press of Virginia, 2001) 326. 5  Findlay v the United Kingdom, ECHR 1997-I 264, para 73.

48  Attila Badó and János Bóka element of independence—but interestingly the formal recognition of this rule is not required, a de facto irremovability will suffice provided that other necessary guarantees are present. The case law of the ECtHR shows that problems concerning these requirements arise mainly in relation to special courts. Countries are often condemned because according to the ECtHR the system of the military courts cannot be regarded as sufficiently independent under the above mentioned criteria.6 On the other hand, a very tolerant and flexible approach has been adopted towards the system of regular courts which might be due to the different institutional traditions of the states, varying but equally effective guarantees of independence, and the differences in legal culture. The ECtHR is aware of the fact that the enforcement of a detailed framework for judicial independence would be counterproductive. It would be possible that a court system that had been developed through centuries and had been granted a high degree of de facto judicial independence would fall short of the requirements, while others could pass the different tests because of the rules incorporated in the constitution or other statutory provisions, though not prevailing in reality. Nevertheless, the ECtHR attempts to apply these soft standards in an objective manner, but still this merely requires the signatories of the Convention to eliminate the most obvious and egregious defects. Consequently, signatory states enjoy a high level of liberty when it comes to the regulation of the independence of judges and courts.7 The institutions of the European Union are endowed with very limited competences and even more limited tools to safeguard judicial independence in Member States. Even though one could have just witnessed that in Hungary, the most serious violations of judicial independence resulted in the effective joint action of the Commission and the Court of the European Union. The Commission contested the early retirement of around 274 judges and public prosecutors in Hungary caused by a sudden reduction of the mandatory retirement age for this profession from 70 to 62. The Court of Justice of the European Union (CJEU) upheld the Commission’s assessment that this mandatory retirement is incompatible with EU equal treatment law. Yet, when it comes to ambiguous cases where judicial independence is violated, one can experience a lack of willingness or possibility to intervene. It is submitted that there are a number of unexploited institutional possibilities in the EU for the effective monitoring of judicial independence and signalisation or other active involvement if needed. And more importantly, there is a real and urgent need to develop and utilise these capabilities on the level of the European Union. It is high time the Member States of the European Union

6 

Morris v the United Kingdom, ECHR 2002-I 387. Bárd, ‘Bírói függetlenség az Európai Unió társult országaiban: Hol állunk mi magyarok?’ [Judicial independence in countries associated to the European Union: Where do Hungarians stand?] (2002) 1 Fundamentum 6. 7 K

Access to Justice and the EU 49 elaborated stricter requirements concerning judicial independence to be implemented by each Member State in its own legal system and making them accountable for violations of judicial independence based on those flexible but effective and objective standards. However, this is by no means an easy task. Even judicial systems with centuries of continuous legal traditions may employ institutional solutions that might arouse doubts concerning the independence and impartiality of judges. But it is quite possible that due to the peculiarities of the legal and political culture these solutions do not lead to the violation of the fair trial principle at all in practice. Notwithstanding, such examples can provide an excuse for all those countries where very similar institutional frameworks—due to the lack of democratic culture—might result in the infringement of judicial independence. That is exactly why it is indispensable to define clear—preferably normative—benchmarks for the judicial systems of all Member States of the European Union that are based on good practices and go beyond model statutory provisions or institutional solutions and touch upon issues of actual implementation. The Hungarian experience is very informative in this regard. When objections were raised about the comprehensive transformation of the judicial system starting from 2010, the government could easily argue, by citing examples from other European jurisdictions, for all of the institutional solutions proposed. Even though the measures most obviously violating judicial independence were withdrawn, Hungarian and foreign experts are still concerned about the situation. However, reservations voiced by some of the opposition political parties or academics that the appointment of judicial leaders is problematic, or that the case assignment system is unclear and it facilitates political pressure are weightless in absence of clear, enforceable European standards concerning the independence and impartiality of judges. As long as the Hungarian government can point out that German federal judges are elected by a body comprising only political delegates where not a single judge is represented,8 how could one plausibly question the Hungarian solution which provides for an independent President of the National Office for the Judiciary elected by the Parliament with a two-third majority with the authority to decide on the appointment of judges and judicial leaders? The adoption of such clear and normative benchmarks is not a task that could be accomplished overnight. Therefore, a timetable should be adopted that would allow decision makers to focus on the most urgent contemporary issues of access to justice and judicial independence. It is submitted that based on the Central European—and especially Hungarian—situation the most problematic fields are the selection and promotion of judges, their removal and disciplinary proceedings, publicity of trials, procedures and information related to the operation of judicial organs as well as assignment and transfer of cases together with the secondment of judges. We are convinced that an institutionalised coordination

8 

T Edinger, ‘Die Justiz muss eine Stimme bekommen’ (2003) 3 Deutsche Richterzeitung 188.

50  Attila Badó and János Bóka of judicial policies based on best practices in these areas could feasibly improve access to justice and judicial independence even in jurisdictions where judicial and political culture allows for considerations other than merit to be taken into account during the selection of judges or where case assignment is not based on an automatic formula. It would exceed the limits of this study to examine all the issues mentioned above in detail. What connects these areas is a clear increase in importance and a shift in relevance for judicial independence. For example, publicity is one of the oldest principles of the judicial process, guaranteed in all rule of law countries either constitutionally or by statutory legislation. Publicity has been traditionally perceived as the principle of open trial, that is, courtroom publicity and the public announcement of court decisions. The ECtHR has implicitly endorsed this perspective by holding that the function of public trials is to ensure monitoring of justice through public opinion as to what extent the right to a fair trial prevails.9 But open trial is increasingly regarded as just one of the elements of the principle of publicity. Institutional-organisational publicity (budget of the courts, data pertaining to the operation of the courts, publicity of the appointment and promotion process of judges as well as the accessibility of information on disciplinary proceedings) is now beginning to play an important role in safeguarding institutional independence of the courts and reinforcing the protection of individual judges from internal interference. It is exactly this transformation that makes the selection and promotion of judges, as well as the mechanisms for case assignment, a topical issue for analysis. Besides a reviving general theoretical interest in the selection and promotion of judges and case assignment protocols, these issues are of particular practical importance in Eastern Central Europe and especially in Hungary. The most pertinent objections related to the recent judicial reforms in Hungary targeted the promotion of judges and the appointment of court presidents, as well as the lack of statutory pre-determined case assignment procedures and the sweeping powers of the President of the National Office for the Judiciary to reassign cases to different courts or to temporarily post judges to other courts via secondment.

II.  SELECTION AND PROMOTION OF JUDGES

In the twenty-first century, the legitimacy of the administration of justice comes from a deep conviction shared by the society that in bringing decisions the courts are not influenced by an inappropriate connection to external actors (such as political parties, government, lobbyists, judicial leaders or voters), but are founded exclusively on professional legal considerations and a legal sense of justice.10 9 

Pretto and others v Italy, 8 December1983, Series A no 71, para 21 A Badó, ‘“Fair” Selection of Judges in a Modern Democracy’ in A Badó (ed), Fair Trial and Judicial Independence: Hungarian Perspectives (New York, Springer, 2014) 27–58. 10 

Access to Justice and the EU 51 Currently, nothing is more conducive to this objective than a well controlled, merit based, objective selection system, which is capable of minimising—if not completely excluding—inappropriate impulses from both inside and outside the organisation. The jurisprudence of the ECtHR is understandably very vague on the issue of selection and promotion of judges since the objective of the ECHR is not the promotion of a particular judicial administration but the protection of certain fundamental individual rights. Nevertheless, the ECtHR has had the opportunity to touch upon some related issues especially in connection with Article 6(1) violations of a right to a hearing by an independent and impartial tribunal established by law. The fact that judges are appointed by the executive or elected by Parliament does not per se amount to a violation of the ECHR, provided that this arrangement does not render them subordinate to external authorities in the performance of their judicial duties.11 It seems that the ECtHR has been so far reluctant to extend this requirement into areas other than strictly interpreted ‘performance of judicial duties’. Even though irremovability during the term is generally considered a core element of judicial independence, removability in itself is not a violation of Article 6(1).12 In addition, even an intervention by the Minister of Justice in the appointment and removal of a decision-making body can be regarded as admissible under the ECHR.13 On the other hand, the ECtHR has not been completely indifferent as regards the composition, organisation and functions of the judiciary. In the jurisprudence of the ECtHR, the requirement of Article 6(1) of a tribunal ‘established by law’ means that the organisation of the judicial system should not be left to the discretion of the executive or the judicial authorities.14 This requirement is overwhelmingly formal in nature and relates only to the form of regulation and the domestic authorities’ obligation to comply therewith. The ECtHR has formulated only a few substantial requirements concerning the functions and administrations of courts, and most of these are related to the prohibition of the exercise of dual functions (for example advisory and judicial) in the same case.15 Other considerations adopted by the ECtHR related to the composition of the court are relevant only for the exclusion of particular persons from particular proceedings (for example the prohibition of the exercise of non-judicial and judicial or different judicial functions in the same case)16 and not for the organisation of courts and appointment of judges in general.

11  Zolotas v Greece, App no 38240/02 (ECtHR 2 June 2005), para 24; Sacilor-Lormines v France, ECHR 2006-XIII 163, para 67. 12  Clarke v United Kingdom ECHR 2005-X 375. 13  Sramek v Austria, 22 October 1983, Series A no 84, para 38. 14  Savino and others v Italy, App no 17214/05, 42113/04, 20329/05, (ECtHR 28 April 2009), para 94. 15  Procola v Luxembourg, 28 September 1995, Series A no 326, para 45. 16  McGonnell v United Kingdom ECHR 2000-II 107, paras 55-58; De Haan v the Netherlands App no 22839/93 (ECtHR 26 August 1997), para 51

52  Attila Badó and János Bóka Even though the ECtHR seems content that judicial selection processes are irrelevant as long as judges are satisfactorily protected from external pressures in their judicial activities after appointment, there are available good practices in a number of European countries where the separation of judicial appointments from politics or lobby groups is one of the determining guarantees of judicial independence. The French or the new UK selection systems are good examples where a complex regulatory framework is put in place to prevent political appointments and uphold the predominantly professional nature of evaluation. Such regulatory environment renders judicial appointments merit-based and this principle is adjusted only in order to provide for a certain ‘representative’ nature of the Bench. Accordingly, the UK judicial selection system increasingly allows for techniques to facilitate the inclusion of minorities among both professional and lay judges. An analysis and examination of the various solutions prevailing in different Member States of the EU must also take into account the particularities of the domestic political establishment.17 In connection with the German or Austrian court systems that are frequently cited as textbook examples of external judicial administration by the executive, a discussion of the role of politics in judicial appointments requires that one must also keep in mind the importance of selfgoverning judges’ associations, political culture and the power of legal traditions.18 Undoubtedly, in Germany there are several institutional arrangements enabling political parties to enforce their preferences when filling judicial posts on the level of Länder and the federal state alike.19 The fact that this practice does not lead to a widespread erosion of judicial independence is attributable to the characteristics of the democratic society in Germany. The potential adverse effects of a judicial selection system on judicial independence can only be ascertained through a careful analysis of the regulatory and institutional environment. A particular framework of judicial administration or judicial selection does not in itself pose a threat to judicial independence if it operates in a social environment where the legal community strongly supports meritbased selection and the political elite exercises self-restraint. However, the exact measurement and evaluation of these factors is extremely difficult. Moreover, the general self-restraint exercised by the political elite by not interfering in a meritbased selection process despite statutory authorisation is not much of a consolation for individual grievances related to an exceptional interference. Similarly, the fact that personal political networking usually does not play a role in judicial

17 

C Guarnieri and P Pederzoli, The Power of Judges (New York, Oxford University Press, 2002) 235. Fleck, ‘A comparative Analysis of Judicial Power, Organisational Issues in Judicature and the Administration of Courts’ in Badó (n 18) 27–58; C Guarnieri and P Pederzoli, The Power of Judges (New York, Oxford University Press, 2002) 3–25. 19 J Riedel, ‘Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Germany’ in G Di Federico (ed), Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, the Netherlands and Spain (Bologna, Editrice Lo Scarabeo, 2005) 69–126. 18  Z

Access to Justice and the EU 53 appointments does not entirely exclude such a possibility, on the other hand, rules enabling political interference make it impossible to effectively contest politically motivated appointments. With this in mind, a thorough revision of judicial selection methods is highly desirable in all European jurisdictions traditionally serving as models or references for other EU Member States as has been the case in the United Kingdom in recent years. It has become commonplace in the twentieth-century literature on judicial selection in England and Wales that traditions essentially exclude the appointment of an unfit barrister for a judicial post. Even though relevant regulations previously allowed the Lord Chancellor to select judges on the basis of political considerations, such abuse of power was effectively prevented by the prevailing legal and political culture in the country.20 Admittedly, these arrangements were more or less adequate to produce a Bench operating by and large to the general satisfaction of the society for a long period. However, like in many other areas, sweeping changes were brought about by the twenty-first century and consistent criticism led to a fundamental revision of the judicial appointment process. The best known element of this revision is the 2005 Constitutional Reform Act that—together with subsequent statutory legislation on judicial appointments— adopted more strict rules on the selection of judges in order to provide effective guarantees for the maintenance of a merit-based system.21 Welcome developments in the United Kingdom prove that there is a demand for the adoption of a well-­regulated framework to safeguard the merit-based system of judicial appointments and equal treatment of candidates, even in societies characterised by a balanced political system generally recognising the importance of judicial independence and self-restraint.

III.  ASSIGNMENT AND TRANSFER OF CASES, SECONDMENT OF JUDGES

Whatever method different legal systems choose to apply in the recruitment of judges, the hidden differences in the personality of the selected judges will never disappear. Since the administration of justice is undertaken by human beings, differences in personality, ideological views and general attitudes will always be present. These differences might lead to inconsistent outcomes under the same legal and factual conditions.22 Of course, the role of the human factor is often overemphasised but it would be naive to deny the fact that the judge’s personality plays a role in rendering judgments. 20 

PS Atiyah, Pragmatism and Theory in English Law (London, Stevens and Sons, 1987) 136. K Malleson, ‘Modernizing the Constitution: Completing the Unfinished Business’ in G Canivet, M Andenas and D Fairgrieve (eds), Independence, Accountability and the Judiciary (London, British Institute of International and Comparative Law, 2006) 152. 22  For an illustration of this phenomenon in Hungarian judicial practice and its possible causes, see M Bencze, Elvek és gyakorlatok: Jogalkalmazási minták és problémák a bírói ítélkezésben [Principles and practice: Judicial patterns and problems in the administration of justice] (Budapest, Gondolat, 2011). 21 

54  Attila Badó and János Bóka If the assignment of cases is left to the heads of courts that are required to participate in negotiations concerning budgetary issues with the government, or whose appointment depends upon the executive, it is easy to see why and how they could become a target of external pressures concerning the assignment of particular cases. Thus, the existence of an automatic internal case assignment system is an important element of the modern vision of a truly independent judicial system. Automatic case assignment can also be perceived as a constituent part of the right to a lawful or natural judge. An example already exists of this being explicitly drafted into a national constitution.23 Interestingly, although in Hungary the issue of automatic case assignment was given high priority by consecutive governments during the 1990s, subsequently it has disappeared from the political agenda. As a consequence, its absence from the 2011 judicial reform package did not receive particular attention or criticism. It is submitted that in the context of the appointment of a lawful judge to administer a specific case, an automatic case assignment method is one of the fundamental issues concerning access to justice and judicial independence in a modern Rechtsstaat. The absence of such arrangements—given the presence of certain organisational circumstances, along with a fragile political and legal culture in some jurisdictions—may result in not only a theoretical possibility, but an open and tempting opportunity to infringe upon the independence of the judiciary and therefore obstruct the access to justice. We consider the implementation of an automatic case assignment system particularly important in societies where significant doubts exist concerning the impartiality and independence of the judiciary. The formulation of the requirement of an independent and impartial judiciary with an explicit reference to the right to a lawful judge and an automatic case assignment system prescribed by law in advance could lay the foundations of a framework that is able to prevent situations similar to the Hungarian experience. The wording of such a provision could be inspired by the jurisprudence of the ECtHR. The ECtHR has approached the issue of case transfer and case assignment under Article 6(1) of the ECHR both from the perspective of the independence and impartiality of the court and the perspective of a court being ‘established by law’. The ECtHR’s consistent jurisprudence emphasises that the phrase ‘established by law’ covers not only the legal basis for the very existence of a ‘tribunal’ but also the composition of the Bench in each case.24 The examination of the ­‘composition

23 See Federal Constitutional Law (B-VG) of Austria, Art 87(3): ‘Business shall be allocated in advance among the judges of the Court of justice for the period provided by Federal law on the organization of the courts. A matter devolving upon a judge in accordance with this allocation may be removed from his jurisdiction only by decree of the chamber competent, in case of his being prevented from the discharge of his responsibilities or his being unable to cope with his duties, due to their extent, within a reasonable time.’ 24  Buscarini v San Marino (dec), App no 31657/96 (ECtHR 4 May 2000); Posokhov v Russia, ECHR 2003-IV 137, para 39.

Access to Justice and the EU 55 of the Bench’ may be legitimately extended to case assignment procedures in general and their application in a particular case.25 Case assignment practices are also subject to review based on the independence and impartiality tests, the two concepts being closely linked, sometimes without the possibility to dissociate them.26 The existence of ‘impartiality’ for the purposes of Article 6(1) must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. The existence and nature of case assignment procedures are extremely relevant in ascertaining whether there could be an objectively justified fear on behalf of the person involved as to the impartiality of the tribunal. As regards ‘independence’, the concept—besides its traditional understanding as a safeguard against outside pressures—requires that judges be free from directives or pressures from fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court.27 In this regard, the power of a court president to assign or reassign cases to judges under his authority might be a relevant factor in the evaluation of the internal independence of judges.28 The ECtHR recognises that it is a prerogative for domestic courts to manage their proceedings with a view to ensuring proper administration of justice, and: [T]he assignment of a case to a particular judge or court falls within the margin of ­appreciation enjoyed by the domestic authorities in such matters. There is a wide range of factors, such as, for instance, resources available, qualification of judges, conflict of interests, accessibility of the place of hearings for the parties etc, which the authorities must take into account when assigning a case.29

However, this prerogative is subject to review under Article 6(1) as regards the requirements of objective independence and impartiality. The ECtHR establishes both procedural and substantive safeguards against ­arbitrary transfer of cases from one court to another. It follows from a constant line of decisions that such transfers require a procedural decision by the competent court or judge that must be reasoned, and the decision must be communicated to the parties with the possibility for them to comment.30 The ECtHR also makes it clear that case transfers might violate the requirement for the impartiality

25 

Iwanczuk v Poland (dec), App no 39279/05 (ECtHR 17 November 2009). Bochan v Ukraine, App no 7577/02 (ECtHR 3 May 2007), para 68. 27  Daktaras v Lithuania, ECHR 2000-X 489, paras 35–36. 28  Moiseyev v Russia, App no 62936/00 (ECtHR 9 October 2008), para 182; Parlov-Tkalcic v Croatia, App no 24810/06 (ECtHR 22 December 2009), para 89. 29  Bochan v Ukraine, App no 7577/02 (ECtHR 3 May 2007), para 71. 30  Bochan v Ukraine, App no 7577/02 (ECtHR 3 May 2007), para 72. 26 

56  Attila Badó and János Bóka of the court if the sole reason for the transfer is the superior court’s dissatisfaction with the rulings of the lower court. If the transfer is ordered by a superior court without justification and after stating its position on key aspects of a case, it is reasonable to conclude that the superior court had a prefixed idea on the outcome of the case and it would be expected from the lower court to consider the case in accordance with the views of the superior court.31 It is interesting to note that the ECtHR also examines the refusal to grant the transfer of a case on the application of a party, and the review extends not only to the compliance with black-letter rules of relevant regulations but to compliance with previous court practice as well.32 The ECtHR’s jurisprudence does not require the establishment of an automatic case assignment system and does not prohibit reassignment of a case if supported by legitimate reasons. However, case assignment and reassignment practices are subject to review as to their compatibility with the internal independence of judges especially vis-à-vis judicial superiors with administrative responsibilities. Here the ECtHR again establishes both procedural and substantial safeguards against arbitrary decisions that might be detrimental to the internal independence of judges. While the practice where the president, or acting president, habitually distributes or reassigns cases without any pre-set formula is not per se against the Convention, the total lack of foreseeability and procedural safeguards against arbitrary exercise of discretion is a violation of Article 6(1).33 Thus—at least for reassignment—a reasoned procedural decision is required that must be communicated to the parties with a possibility to comment. Whether the possibility to comment amounts to a right of appeal is unclear, the ECtHR has used a language on at least one occasion that could be interpreted this way.34 Assignment and reassignment decisions are also subject to a substantial review. The existence of an automatic case assignment and reassignment system usually satisfies the requirements of internal independence and impartiality.35 The automatic assignment procedures are not supposed to be absolute: departure from the standard rules is possible if the reasons behind such decision are valid and expressly specified. In the absence of such automatism, particular assignment and reassignment decisions come under close scrutiny concerning the validity and reasonable nature of the arguments behind the ruling and its effect on the appearance of impartiality. This is especially true if the dividing line between the judge as court administrator and as adjudicator becomes blurred: a court president’s decree to reassign a case to himself where he renders a final decision in the matter

31 

Bochan v Ukraine, App no 7577/02 (ECtHR 3 May 2007), para 74. Parlov-Tkalcic v Croatia, App no 24810/06 (ECtHR 22 December 2009), paras 41–55. Moiseyev v Russia, App no 62936/00 (ECtHR 9 October 2008), para 182. 34  Sutyagin v Russia, App no 30027/02 (ECtHR 3 May 2011), para 189. 35  Parlov-Tkalcic v Croatia, App no 24810/06 (ECtHR 22 December 2009), para 89. 32  33 

Access to Justice and the EU 57 on the same day as a judge is an obvious affront to the appearance of impartiality regardless of any objective grounds for the decision.36 Going well beyond a formal analysis of the reasons given for an assignment and reassignment decision, the ECtHR usually embarks on a substantial review of the justification in order to discover the real motives in the background: a simple reference to workload and annual leave will not suffice.37 The arguments in favour of reassignments must be very convincing if the number of the changes on the Bench is unusually high because the exceptional frequency of such changes is in itself a concern for the ECtHR and might be an indication of undue influence.38 These considerations apply to professional and lay judges alike. In principle, the composition of a jury might also be subject to review under the Convention even though so far the ECtHR has never actually engaged in the application of Article 6(1) in this respect. The secondment of judges may also be perceived as a reverse reassignment of a case: instead of transferring the case to another court, a judge from another court might be seconded to deal with particular cases. The ECtHR’s jurisprudence points towards the conclusion that secondment per se is not problematic under the C ­ onvention provided that it is a standard practice in the judicial system concerned, there is no influence or pressure from the authority ordering the secondment and there is no attempt to manipulate the composition of the Bench.39 However, deviation from the standard judicial practice in a particular case (for example, retrospective authorisation of secondment contrary to previous uniform interpretation of the relevant regulations) is in itself sufficient to substantiate legitimate fears as to the lack of impartiality of the tribunal.40 The jurisprudence of the ECtHR is principle and not institution based, thus can in no way be interpreted as sanctioning a particular solution for transfer and assignment of cases. On the other hand, the jurisprudence of the ECtHR is far from being neutral towards the different solutions, some being clearly more effective in preventing violations of Article 6(1). There is a particularly strong built-in preference in the Convention for automatic case assignment procedures. ­Automatic case assignment schemes have undoubtedly been considered as examples for best practices for decades. It is submitted that the ECtHR’s jurisprudence warrants a more ambitious approach: it supports the desirability and feasibility to designate automatic case assignment schemes as a benchmark target for the European area of freedom security and justice.

36 

DMD Group, AS v Slovakia, App no 19334/03, (ECtHR 5 October 2010), paras 62–72. Sutyagin v Russia, App no 30027/02 (ECtHR 3 May 2011), para 190. Moiseyev v Russia, App no 62936/00 (ECtHR 9 October 2008), para 180. 39  Richert v Poland, App no 54809/07 (ECtHR 25 October 2011), para 44. 40  Richert v Poland, App no 54809/07 (ECtHR 25 October 2011), para 50. 37  38 

58  Attila Badó and János Bóka IV.  FEASIBILITY AND POSSIBILITY OF EU ACTIVITIES CONCERNING JUDICIAL INDEPENDENCE

A very pertinent question is whether EU-level action related to access to justice, judicial independence and fair trial is needed, authorised and feasible. In our opinion, all of these questions must be answered in the affirmative. According to Article 2 of the Treaty on European Union (TEU): [T]he Union 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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 6 TEU also underlines that ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’ An alternative argument for EU involvement is the creation of an Area of Freedom, Security and Justice that is based, inter alia, on the automatic mutual recognition of judicial decisions rendered in other Member States. Mutual recognition is based on mutual trust, and a crucial component of this trust is the conviction that a judgment rendered in another Member State has been adopted by an independent and impartial tribunal in a fair procedure. Despite an unequivocal theoretical commitment to uphold the rule of law, the EU actually has very few tools to effectively implement it. 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, after inviting the Member State in question to submit its observations (Article 7 TEU). Based on the unsatisfactory experiences related to the application of Article 7 TEU as a nuclear option, on 11 March 2014 the Commission presented a new initiative for addressing systemic threats to rule of law in Member States that was supposed to be complementary to infringement procedures and Article 7 procedure. In the Commission’s concept ‘rule of law’ includes independent and effective judicial review as well as the right to a fair trial and the separation of powers. This new initiative might breathe new life into the Commission’s activities on monitoring ‘rule of law’ in Member States and taking proportionate and effective action if needed. The EU Charter of Fundamental Rights might serve as another basis of EU action. According to Article 47 of the Charter everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone

Access to Justice and the EU 59 shall have the possibility of being advised, defended and represented. However, Article 51 of the Charter limits the scope of these provisions by stating that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred by the Treaties. In addition, the Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. As a consequence, the Charter is not very likely to prove an effective tool to promote the independence of domestic courts in Member States. Since 2010, the Commission publishes an annual report on the implementation of the Charter and can also initiate infringement procedures; however, these are usually not based exclusively on the Charter. For example, when—as mentioned above—the Commission contested the early retirement of around 274 judges and public prosecutors in Hungary caused by a sudden reduction of the mandatory retirement age for this profession from 70 to 62, the CJEU upheld the Commission’s assessment that this mandatory retirement is incompatible with EU equal treatment law (the Directive prohibiting discrimination on the basis of age and Article 21 of the Charter)—and not on considerations related to the independence of the judiciary. The EU Fundamental Rights Agency could also be a venue for EU action to promote an independent judiciary in Member States. The main task of the Agency is to collect and disseminate objective, reliable and comparable data on the situation of fundamental rights in all EU countries within the scope of EU law. However, at the moment there is no ongoing research project explicitly devoted to independent and impartial courts or fair trial. The most promising way for the EU to tackle issues of rule of law, access to justice and judicial independence is the open method of coordination (OMC). The OMC provides a new framework for cooperation between the Member States, whose national policies can thus be directed towards certain common objectives. Under this intergovernmental method, the Member States are evaluated by one another (peer pressure), with the Commission’s role being limited to surveillance. The open method of coordination takes place in areas which fall within the competence of the Member States. It is based principally on jointly identifying and defining objectives to be achieved (adopted by the Council), jointly established measuring instruments (statistics, indicators, guidelines) and benchmarking, that is, comparison of the Member States’ performance and exchange of best practices (monitored by the Commission). Depending on the areas concerned, the OMC involves so-called ‘soft law’ measures which are binding on the Member States in varying degrees but which never take the form of directives, regulations or decisions. In some policy areas the OMC requires the Member States to draw up national reform plans and to forward them

60  Attila Badó and János Bóka to the Commission. However, OMC activities in other areas do not entail the setting of targets, and it is up to the Member States to decide on objectives without the need for any European-level coordination of national action plans. At the moment, OMC does not extend to the Area of Freedom, Security and Justice or to rule of law issues, but such a possibility should be explored.

V. CONCLUSIONS

This study has extensively argued for an EU-level approach to the most current and pressing problems of judicial independence. Admittedly, those problems are not identical in all Member States and the gravity of the shortcomings also differs from jurisdiction to jurisdiction. However, it is clear that in the absence of a solid legal and judicial tradition and in the presence of unchecked and overwhelming political forces in the legislation and executive courts may become vulnerable to external pressures. It has been argued that external pressures have taken new forms: it is quite rare that judges are targeted in the course of their judicial activities in the strict sense of the term. On the other hand, a judiciary where political considerations have an undue impact on the promotion of judges, appointment of court leaders and assignment of cases is equally exposed to external pressures. It has become obvious by now that some Member States are not willing to take steps in order to reduce this exposure without effective monitoring and peer pressure from the EU. Of course, there are a number of views and concepts circulating in the EU on the proper meaning and content of judicial independence that should be promoted and upheld by the Member States. An open discussion with a view to define a common formula could be an important step on a long road to the genuine Area of Freedom, Security and Justice. We are convinced that such a formula—besides traditional guarantees of ­independence and impartiality in the performance of judicial functions per se— should include references to institutional autonomy as well as personal and career safeguards for the judges. Courts and judges can function in a genuinely independent way only in a democratic political environment and under the administration of an organ composed of a majority of judges. This requires the participation of independent lawyers and representatives of other branches of government, with the authority to select appropriately remunerated judges and court leaders on the basis of merit in a transparent way. A crucial component of the formula should be a statement to the effect that judges may only deal with cases assigned to them on an automated basis, determined in advance in a way that appears to society as impartial. The formula should also include a reference to judges being accountable to the appointing organ for maladministration of justice but at the same time enjoying substantial guarantees that neither organisational or political favouritism, nor public perception of judicial activities, would adversely affect their career.

4 Transparency as Part of a European Rule of Law INGER ÖSTERDAHL

I. INTRODUCTION

T

RANSPARENCY IS A broad and elusive concept that can denote many things.1 On the global level, when transparency is discussed the discussion quickly turns to the subject of corruption, and transparency is generally seen as a weapon, perhaps the weapon, in the struggle against corruption. Due perhaps to the privileged position of the current Swedish author, corruption and the connection between transparency and the eradication of corruption will be left out of the discussion here. If there is widespread corruption, however, it is fully understandable that transparency is primarily associated with the struggle against corruption since corruption tends to undermine whatever other institutional infrastructure there might be in society. Transparency as a concept can also lead the thoughts to such things as transparency in law-making, transparency as far as economic contributions to political parties are concerned, transparency in the public and political debate generally, and to transparency in the policy-making of the government or transparency in the decision-making in the public administration. The provision by the government and the public administration to the general public of information on governmental and administrative deliberations, activities and plans generally can also be referred to by transparency. Transparency in the judiciary can mean—at least— that trials are held in public and that judgments are made public. Transparency is also used to denote the circumstances that ideally should reign with respect to competition in different areas of society, among other things that could be associated with transparency.

1  See, for instance, P Ala’i and R Vaughn (eds), Research Handbook on Transparency (Cheltenham, UK, Edward Elgar, 2014); AJ Meijer, ‘Introduction to the Special Issue on Government Transparency’ (2012) 78 International Review of Administrative Sciences, Special Issue on Government Transparency, 3; C Hood and D Heald (eds), Transparency: The Key to Better Governance? (Oxford, Oxford ­University Press, 2006); A Roberts, Blacked Out: Government Secrecy in the Information Age (Cambridge, Cambridge University Press, 2006).

62  Inger Österdahl Transparency in these days of surveillance and big data can also denote the transparency of the individual vis-à-vis the surveying authorities or data collecting private commercial companies.2 One could also imagine transparency as the transparency of the individual arising from data collection, not only by big commercial companies but by other private individuals who collect and put together information about other fellow individuals gathered from open sources now available to a large extent through the Internet. Such private data collection can also generate databases contributing to the ‘transparency’ of ordinary people, sometimes for commercial purposes, sometimes not. Transparency in this contribution will primarily denote the access by the individual to official documents held by the public authorities. The question is whether there is a right of access to official documents, or information, and further whether the potential right to access forms part of a European rule of law. We will return to the issue of access to documents and its connection with the rule of law below. Before that a few words will be said about the view of the current author of the relationship between the rule of law and some other concepts central to a common European normative framework, namely the respective concepts of human rights and democracy. In the conception of this author, human rights and the rule of law are hard to separate.3 In fact, it could be argued that the two are intrinsically linked and that the respect for human rights constitutes an inherent part of the rule of law. The more meaningful rule of law, that is, as opposed to the rule by law only.4 If human rights make up part of the rule of law as pictured here, the strengthening of human rights means also strengthening the rule of law. Conversely, it is difficult to imagine human rights being protected and respected without the rule of law reigning in society. The protection of human rights presupposes a functioning and fair judiciary and public administration which it is difficult to imagine without the existence of the rule of law. Human rights and the rule of law are rather two different perspectives on the same thing. The rule of law tends to be more institutional or structural and procedural than human rights. Human rights, for their part, tend to be more individual or actor-oriented, and substantial, except for the human rights that are clearly procedural and relate to the access of the individual to the judiciary and to the quality of the procedure before the judiciary. 2 

See A Rengel, Privacy in the 21st Century (Leiden, Martinus Nijhoff Publishers, 2013). See also the European Commission for Democracy through Law (Venice Commission), Report on the Rule of Law, Adopted by the Venice Commission at its 86th plenary session (Venice, 25–26 March 2011), CDL-AD(2011)003rev, Study No 512/2009, Strasbourg, 4 April 2011, S IV, Ss 5: Respect for human rights 12–13. 4  The view of the current author thus would be close to a ‘thick’ understanding of the rule of law, according to BZ Tamanaha, ‘A Concise Guide to the Rule of Law’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Oxford, Hart Publishing, 2009) 3, 4, 13–14; see also the ‘thick’ understanding of the rule of law expressed in R McCorquodale, ‘Business, Rule of Law and Human Rights’ in R McCorquodale (ed), International Rule of Law in International and Comparative Context (London, British Institute of International and Comparative Law, 2010). 3 

Transparency as Part of a European Rule of Law 63 With respect to transparency, in the form of access to information in ­particular, the proximity of the concept of rule of law and the concept of human rights is illustrated by the following pronouncement by Herke Kranenborg and Wim Voermans, with which the current author agrees, ‘under the rule of law, access to information must in one way or another be construed as a right for individuals, be it a positive right or be it (through the mirror situation) an authority’s obligation to provide information.’5 From the perspective of the current author, neither can there be a strict separation between the rule of law and democracy.6 The rule of law is an inherent element of democracy and democracy arguably constitutes the normative G ­ rundnorm upon which rest both the rule of law and human rights (as well as their institutional expressions in the form of the Council of Europe and the European Union). Both the rule of law and human rights arguably presuppose a democratic system of governance. Simultaneously, both the respect for the rule of law and for human rights contribute to the maintenance of democratic governance. The rule of law, human rights and democracy are different manifestations of the same normative ideology or different branches on the same tree.7 It is possible to discern the rule of law, respect for human rights, and democracy respectively, but it is impossible to separate them completely. Thus the rule of law, human rights and democracy overlap, coincide and make up intrinsic elements of each other in a complex way. In these days in particular the foundation of both the rule of law and the respect for human rights in democracy is worth emphasising it would seem. Without democracy, the likelihood of either rule of law or respect for human rights diminishes radically. In this milieu of entangled normative categories and institutions that together arguably make up the basis of and motivation for pan-European cooperation on the whole, this contribution focuses on transparency and among the different connotations of transparency—in order to narrow down this vast and amorphic topic and make it somehow more concrete—on the access to documents held by public authorities. And not any access to official documents, but the access by the individual to documents held by the public authorities, in order for the individual to gain insight into the activities of the public authorities and thus to increase his or her knowledge of public affairs and indirectly as a means for the individual to exercise a degree of control over the public administration. This is different from the public authorities themselves informing the general public about their activities and thus choosing what information to make public and how to present 5  H Kranenborg and W Voermans, Access to Information in the European Union: A Comparative Analysis of EC and Member State Legislation (Groningen, Europa Law Publishing, 2005) 27. 6  For a similarly inclusive conception of the rule of law, see G Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford, Oxford University Press, 2014) in particular ch 2: ‘The Rule of Law Concept’, and ch 6: ‘Democracy’. 7  It would seem as if this view broadly corresponds with the view of Jeffrey Jowell as implicitly expressed in ‘The Rule of Law and its Underlying Values’ in J Jowell and D Oliver (eds), The Changing Constitution 7th edn (Oxford, Oxford University Press, 2011).

64  Inger Österdahl that information. The access by the individual, on the individual’s own initiative, to the documents held by the authorities is not limited to information that the authorities themselves would like to publicise; on the contrary it may be presumed that requests from individuals for information held by the authorities will concern documents that the authorities would not be willing to publicise on their own initiative. It might very well be an issue of information the entry of which in the public sphere will embarrass the authorities. Thus an important characteristic of the individual access, on the individual’s own initiative, to documents held by the public authorities is that the information thus coming out in the open is not managed or framed by the public authorities themselves. The individual access to documents is a relatively tangible element of the otherwise rather vague idea of transparency which is one reason why access to documents has been chosen for treatment within the larger framework of transparency in this contribution. The individual access to documents furthermore, is a particularly ‘juridified’ aspect of transparency, the elements of which otherwise have not hardened and become as concrete as what has actually developed into the individual right of access to documents in many national jurisdictions and, as we shall see, is currently emerging on the pan-European level. A further reason why access to documents has been chosen for closer treatment as a manifestation of transparency in this contribution might be the background in Sweden of the author, or perhaps rather the background of the author in a legal and political system which places a high value on individual access to official documents. The free access to official documents is laid down in the Swedish Constitution, in the Freedom of the Press Act, and has been so since 1766. This background has served to make the author aware of the potential significance of the right of access to documents. Due to her background, the author has also learned to appreciate the value of access to official documents and of transparency generally. Transparency in general and in our case, transparency in the form of the individual access to documents, contributes to the rule of law in many ways. Transparency, or access to documents, also illustrates the intimate relationship in the view of this author between the rule of law, human rights and democracy. In the Swedish context, three specific terms are usually used in order to justify the public access to official documents: democracy, the rule of law, and efficiency in the public administration (and then in other respects, primarily, the absence of corruption, which is absent anyway).8 ‘Legal certainty’, or ‘rättssäkerhet’, in the Swedish context largely corresponds with the ‘rule of law’. Thus, in the Swedish context it is more or less taken for granted that access to documents promotes the rule of law, as well as democracy and efficiency. This author largely agrees with that conception,

8  For a useful exposé in English of the Swedish law on access to documents and the rationale behind it, see Gillberg v Sweden App No 41723/06, Judgment of 3 April 2012, II. Relevant Domestic Law and Practice.

Transparency as Part of a European Rule of Law 65 and appreciation, of the right of access to documents. The free access to official ­documents is regarded as ‘one of the cornerstones of Swedish democracy’.9 In fact, so important is the free access to official documents to the Swedish society that upon the entry into the EU in 1995 Sweden declared that ‘[o]pen government and, in particular, public access to official records … are and remain fundamental principles which form part of Sweden’s constitutional, political and cultural heritage.’10 Typically, in the view of this author, transparency or access to documents is rather a means to achieve the other elements of the rule of law than an end in itself, or put differently, rather an instrument than in itself constituting a substantive component of the rule of law.11 The role of transparency is to work as a check in favour of the other parts of the rule of law and to ease the exposure of violations of the rule of law, or of human rights or even of democracy. Also, in a more positive sense, as a means for the individual to gain information about the workings of the public administration, the public access to documents strengthens the individual’s capacity to make use of his or her rights as well as to make use of his or her possibilities to exercise democratic influence. These functions of transparency in relation to the rule of law, thus, are more indirect. Tentatively, it could be argued that transparency in the form of access to documents is neither a necessary nor sufficient condition for the rule of law, but potential exposure of violations and the empowering of the individual citizen certainly help and constitute useful tools in order to achieve the realisation of the different genuine rule of law components. The contribution will focus on the European Convention for Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) with respect to the right of access to official documents.12 The ECHR and the case law developed by the ECtHR relates to the potential right of access to official documents within the respective Member States. The ECHR and the constantly evolving case law with which it is connected is regarded here as the expression of a common European conception at the level of the state of human rights and the rule of law including the right of access to documents. The Treaty on the Functioning of the EU and the secondary EU law, on the other hand, as well as the case law emanating from the EU Court of Justice (ECJ), with respect to access to documents, mostly relates to the access to documents within the EU organisation

9 

ibid, para 39. Treaty concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union, [1994] OJ C241/07 397, Declaration No 47: Declaration by the Kingdom of Sweden on open government and Declaration made by the Union in response. 11  See also D Heald, ‘Transparency as an Instrumental Value’ in C Hood and D Heald (eds), Transparency: The Key to Better Governance? Proceedings of the British Academy 135 (Oxford, Oxford ­University Press, 2006). 12  Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No 5. 10 

66  Inger Österdahl itself, not to the access to official documents at the level of the Member States.13 Also, the ECHR is highly influential on the conception of human rights in the EU. After having studied what the ECtHR has laid down on the subject of the right to access to official documents and thus after having found out what basis there might be in the ECHR for claiming that there exists such a right which might furthermore form part of a European rule of law, this chapter will be concluded by a discussion of some contemporary challenges to transparency, indirectly also challenging the rule of law as we know it. The milieu in which transparency is exercised today is multifaceted and rapidly changing; the digitalisation, the internationalisation and the privatisation are examples of phenomena which place the access to documents in a new light.

II.  ACCESS TO DOCUMENTS ACCORDING TO THE EUROPEAN COURT OF HUMAN RIGHTS

Transparency in the form of access to documents is potentially regulated by Article 10 of the ECHR governing the freedom of expression. Article 10(1) states: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ The right of access to documents has been considered by the ECtHR within the framework of ‘the freedom … to receive and impart information and ideas without interference by public authority’. In the following, the cases in which the ECtHR has dealt with the potential right of access to documents will be analysed from the perspective of transparency and the rule of law.

A.  Leander v Sweden The first occasion in which the ECtHR had to take a stand on what the right of access to documents meant under the ECHR was in Leander v Sweden.14 It is interesting that the first case should concern Sweden since Sweden at least at the time of Leander in the 1980s was probably one of the most open countries in Europe as far as access to official documents was concerned. The case of Leander v Sweden concerned a carpenter who, in 1979, was denied temporary employment as a museum technician at the Naval Museum in the town of Karlskrona, where the museum is adjacent to the Karlskrona Naval Base which

13  Consolidated version of the Treaty on the Functioning of the European Union, [2012] OJ C326/01 Art 15; Reg (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] OJ L 145/43; Charter of Fundamental Rights of the European Union, [2012] OJ C 326/02, Arts 42, 51. 14  Leander v Sweden App No 9248/81, Judgment of 26 March 1987.

Transparency as Part of a European Rule of Law 67 is a restricted military security zone.15 After a personnel control Mr Leander was considered unsuitable for employment for reasons of security. Mr Leander sought access to the information kept on him by the Secret Police, but was denied such access.16 The ECtHR adopted a narrow view of the freedom to receive information as part of the freedom of expression in Article 10 and, as a consequence, of the right of access to documents. The Court observed, firstly, that ‘the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him’.17 And, secondly, the Court stated that Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.18

Both the unconditional right of access of the individual to official documents (and not only to such documents containing information on the applicant him- or herself), subject only to limitations due to secrecy, and the corresponding obligation on the part of the public authorities to impart such information are fundamental components of the Swedish free access to official documents. The ECtHR concluded that there had been no interference with Mr Leander’s freedom to receive information, as protected by Article 10.19 Thus, in Leander the ECtHR denied the existence of an individual right to access to documents at all under the ECHR.

B.  Gaskin v United Kingdom The restrictive formula of the ECtHR was repeated in the case of Gaskin v United Kingdom in 1989.20 The Court repeated what it had stated in Leander on the— limited—reach of the freedom to receive information and then the Court added that ‘[a]lso in the circumstances of the present case, Article 10 does not embody an obligation on the State concerned to impart the information in question to the individual’.21 Thus, there had been no interference with Mr Gaskin’s right to

15 

Incidentally, in 1981 a Soviet submarine ran aground just outside Karlskrona. then, Mr Leander and others who were registered on the ground solely of their political opinions have been granted compensation by the Swedish State due to the violation of the Swedish Constitution having been committed through their registration (ch 2 para 3 of the Instrument of Government). 17  Above n 14 at para 74 (emphasis added). 18 ibid. 19  ibid at para 75. 20  Gaskin v The United Kingdom App No 10454/83, Judgment of 7 July 1989; for similar factual circumstances cf MG v The United Kingdom App No 39393/98, Judgment of 24 September 2002. 21  Gaskin v The United Kingdom ibid at para 52; cf also Guerra and Others v Italy App No 116/1996/735/932, Judgment of 19 February 1998; Roche v The United Kingdom App No 32555/96, 16  Since

68  Inger Österdahl receive information as protected by Article 10 either.22 In Gaskin at issue was the right of access of Mr Gaskin to the files of the local social authorities containing information concerning circumstances during Mr Gaskin’s childhood. In the case of Mr Gaskin, contrary to the case of Mr Leander, the United Kingdom was found guilty of having violated Article 8 of the ECHR on the right of respect for one’s private and family life, due to deficiencies in the procedure through which the British authorities decided whether access to the files should be granted.23 Certain demands on a reasonable administrative procedure related to some of the elements contained in the rule of law incidentally in this case worked in favour indirectly of access to documents. On the basis of the Leander and Gaskin cases it can be concluded that on the European level there is only a weak right to freedom to receive information which does not include the right of access to official documents in the conventional, Swedish, sense. Thus, from Leander and Gaskin the conclusion must be drawn that transparency at least in the form of access to documents does not form part of a common European notion of the rule of law at all. It must be presumed that the ECHR was drafted on the basis of an idea of a lowest common denominator among the Member States as to the content of the most important human rights and the right of access to documents apparently was not considered to belong to the core of human rights, or presumably to the core of the rule of law. This situation under the ECHR has changed however since the end of the 1980s due to developments in the case law of the ECtHR.

C.  Sdruzeni Jihoceske Matky v Czech Republic About 20 years after the Leander and Gaskin judgments, the tide seemed to begin to turn in the ECtHR’s conception of the right to freedom to receive information. The first sign of change was the decision by the ECtHR in the case of Sdruzeni Jihoceske Matky v Czech Republic in 2006.24 Although the application was rejected as manifestly unfounded, the decision is important in favour of the right of access to documents since, for the first time, the Court explicitly recognised that the refusal by the Czech authorities to give the organisation in question, an ecologist nongovernmental organisation (NGO), access to documents and plans regarding a nuclear power station was an interference with the right to receive information.25 Judgment of 19 October 2005; Loiseau v France App No 46809/99, Decision of 18 November 2003 (the decision in full is only available in French); Eccleston v The United Kingdom App No 42841/02, Decision of 18 May 2004; Sirbu and Others v Moldova App No 73562/01, Decision of 15 June 2004. 22 

Gaskin v United Kingdom (n 20) at para 53. ibid at para 49. 24  Sdruzeni Jihoceske Matky v Czech Republic App No 19101/03, Decision of 10 July 2006. (The judgment in full is only available in French.) 25  ibid; see W Hins and D Voorhoof, ‘Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights’ (2007) 3 European Constitutional Law Review 114, 123 f. 23 

Transparency as Part of a European Rule of Law 69 Although this was a dramatic shift of perspective of the ECtHR, Wouter Hins and Dirk Voorhoof remark, interestingly, that the Court does not pay much attention to the difference with its earlier case law in Sdruzeni Jihoceske Matky v Czech Republic.26 Whether it was conscious or not on the part of the ECtHR at the time, this shift of position has, however, remained and the Court has from 2006 on continued along a different path than before.27

D.  Társaság a Szabadságjogokért v Hungary In Társaság a Szabadságjogokért v Hungary in 2009, the ECtHR continued down the path towards more transparency.28 In this case, the Hungarian Civil Liberties Union had requested the Hungarian Constitutional Court to grant them access to a complaint pending before the Court launched by a Member of Parliament and other individuals requesting the constitutional scrutiny of some recent amendments to the Criminal Code which concerned certain drug-related offences.29 The ECtHR began its assessment of the circumstances in Társaság a Szabadságjogokért v Hungary in its earlier case law relating to the freedom of the press and the role of the press as ‘watchdog’ and as an important transmitter to the general public of information and ideas of general interest.30 Since the Hungarian Civil Liberties Union is not a newspaper or other mass medium the Court creates a link whereby the Civil Liberties Union can be regarded as equivalent to the mass media and professional journalists for the purpose of the exercise of the right to freedom to receive and impart information. The function of the press includes the creation of forums for public debate, but the realisation of this function is not limited to the media or professional journalists, the ECtHR states.31 In the present case, the ECtHR continues, the preparation of the forum of public debate was conducted by an NGO.32 The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate, the ECtHR finds, and, moreover, according to the ECtHR the Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs.33 The Hungarian Civil Liberties Union is an association involved in human rights litigation with various objectives, the ECtHR writes, including the protection of free26 

Hins and Voorhoof, ibid at 124. Incidentally, the year of 2006 is cited in the literature as the year when the development towards more openness in the EU began to stall; see MZ Hillebrandt, D Curtin and A Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’ (2014) 20 European Law Journal 1, 15. 28  Társaság a Szabadságjogokért v Hungary App No 37374/05, Judgment of 14 July 2009. 29  ibid at para 9; a less successful application by an NGO, due to the failure to exhaust domestic remedies, in a case potentially relating to access to information was Geraguyn Khorhurd Patgamavorakan Akumb v Armenia App No 11721/04, Decision of 14 April 2009. 30  Társaság a Szabadságjogokért v Hungary (n 28) at para 26. 31  ibid at para 27. 32 ibid. 33 ibid. 27 

70  Inger Österdahl dom of information.34 It may therefore, the ECtHR concludes, be characterised, like the press, as a social ‘watchdog’.35 And finally, ‘[i]n these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press’.36 In conclusion, on the issue whether there had been an interference with the applicant organisation’s ‘rights enshrined in Article 10’ the ECtHR found, that the applicant had been involved in the legitimate gathering of information on a matter of public importance, that the authorities’ interference in the preparatory stage of this process amounted to a form of censorship and, finally, that since the applicant’s intention had been to impart to the public the information gathered and thereby to contribute to the public debate, its right to impart information had clearly been impaired.37 The reason why the Constitutional Court and then the Budapest Regional Court and the Court of Appeal refused to grant access to the constitutional complaint in Társaság a Szabadságjogokért v Hungary was the protection of personal data, that is, in this case the protection of the personal views primarily of the Member of Parliament having lodged the complaint with the Constitutional Court. When deciding whether the refusal to let the Hungarian Civil Liberties Union have access to the complaint was necessary in a democratic society, which the ECtHR surprisingly found that it was not, the Court reasoned on the issue of the free flow of information versus the protection of personal data which is also an important issue of principle and an issue, the significance of which, in the information and Internet age, can only be expected to grow. The Court, rightly, considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent.38

The contribution of transparency to the rule of law in the case of Társaság a Szabadságjogokért is very indirect and general, but the connection between transparency and democracy in the form of public exposure and discussion of matters of public interest in this case is obvious. The ECtHR, first, tentatively, in Sdruzeni Jihoceske Matky v Czech Republic and then more decidedly in Társaság a Szabadságjogokért v Hungary seems to have tried to find ways of arriving at a certain right of access to documents—although expressed in other terms—despite the previous firm case law, that a right of access to documents does not exist under the ECHR. By redefining the issue it is possible

34 ibid. 35 ibid. 36 ibid. 37  38 

ibid at para 28. ibid at para 37.

Transparency as Part of a European Rule of Law 71 to arrive at another conclusion than would be possible had the ordinary route of the (non-existing) right to access to documents been taken: the ECtHR considers that the Társaság a Szabadságjogokért case ‘essentially concerns an interference … with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents’.39 If the issue is defined in that way, the ECtHR can lean on its solid case law in favour of the freedom of the press and the right of the general public to receive information through the press in order to achieve a certain opening as far as the access to documents is concerned. Although the ECtHR does not invoke the right of access to documents in Társaság a Szabadságjogokért, the Court hints that there might be developments under way which will eventually lead to a recognition of a right of access to documents: ‘The Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information.’40 In the view of this author, the recognition of an explicit right of access to information would be preferable to the detour made in Társaság a Szabadságjogokért in order to arrive in practice at a milder form of right of access. Better still, would be if the ECtHR could bring itself to directly address its earlier restrictive formula concerning the right of access and just revise it. The ‘right of access’ in the form it was given in Társaság a Szabadságjogokért is still very circumscribed since it goes via an organisation of some kind, typically an NGO, that is, it is not (yet) open to individuals, and the right of access is closely tied to the information sought for being of public interest, intended to be imparted to the public and to be publicly debated. Under the Swedish unconditional right of access to official documents, in comparison, there is no need for the information requested to be of public interest, nor is there any need to show that the information requested is subsequently intended to be imparted to the public and to be publicly debated. In Swedish law, the right of access to official documents is an individual right, irrespective of what kind of information is sought and irrespective of the purposes for which the information is sought. The person requesting the information, furthermore, has the right to stay anonymous.41

E.  Kenedi v Hungary In another recent case against Hungary, Kenedi v Hungary, in 2009, a historian was denied access to documents relating to the Hungarian State Security Services in the 1960s held by the Ministry of the Interior despite court orders that the documents should be released and despite fines to be paid by the Ministry 39 

ibid at para 36. ibid at para 35 (emphasis added); the ECtHR refers to the case of Sdruzeni Jihoceske Matky v Czech Republic (n 24). 41  Freedom of the Press Act ch 2 para 14. 40 

72  Inger Österdahl due to a lack of enforcement by the Ministry of the orders of the court.42 The Ministry based its refusal on reasons of national security.43 In this case the issue was framed primarily as one relating to the applicant’s freedom of expression, rather than to the potential right of the applicant to have access to the documents concerned: ‘The Court emphasises that access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression’.44 In this case it can be noted that the applicant was an individual person and not an organisation of some kind. It can be noted further that the Court only implicitly referred to the public interest of the information requested by the applicant and his potential contribution to public debate. The Court found that the interference with Mr Kenedi’s right to freedom of expression was not prescribed by law. The ECtHR was exceptionally critical of the Hungarian authorities, ‘the Court cannot but conclude that the obstinate reluctance of the respondent State’s authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness.’45 And, ‘For the Court, such a misuse of the power vested in the authorities cannot be characterised as a measure “prescribed by law”.’46 In Kenedi v Hungary the rule of law (or lack thereof) and transparency (or lack thereof) meet which is probably no coincidence. An extreme lack of rule of law and extreme lack of transparency can be expected to covary.

F.  Youth Initiative for Human Rights v Serbia In 2013 another case was decided by the ECtHR with connections both to Társaság a Szabadságjogokért v Hungary and to Kenedi v Hungary. This time it was a complaint against Serbia by an NGO called Youth Initiative for Human Rights.47 The applicant complained about a refusal of the intelligence agency of Serbia to provide it with certain information concerning electronic surveillance, notwithstanding a final and binding decision of the Information Commissioner in the applicant’s favour. The Information Commissioner is a domestic body set up under the Freedom of Information Act to ensure the observance of that Act.48 The intelligence agency first refused the request of the Youth Initiative claiming that the information was secret. After an order by the Information Commissioner that

42 

Kenedi v Hungary App No 31475/05, Judgment of 26 August 2009. ibid at paras 8, 10, 42. 44  ibid at para 43; the ECtHR refers to the case of Társaság a Szabadságjogokért v Hungary (n 28) paras 35–39. 45  Kenedi v Hungary (n 42) para 45. 46 ibid. 47  Youth Initiative for Human Rights v Serbia App No 48135/06, Judgment of 25 June 2013. 48  ibid at para 8. 43 

Transparency as Part of a European Rule of Law 73 the information at issue be nevertheless disclosed, the intelligence agency notified the applicant that it did not hold that information, a response that the ECtHR found ‘unpersuasive’.49 In Youth Initiative for Human Rights v Serbia the ECtHR seems to take just a little step further and actually arrives at the position that indeed ‘the notion of “freedom to receive information” embraces a right of access to information’.50 The ECtHR also repeated its position that when an NGO is involved in matters of public interest, such as the Youth Initiative for Human Rights, it is exercising a role as a public watchdog of similar importance to that of the press.51 The ECtHR concludes in Youth Initiative that the applicant’s activities thus warrant similar Convention protection to that afforded to the press.52 Despite its assertion that the freedom to receive information embraces a right of access to information, the ECtHR in Youth Initiative for Human Rights takes the same detour via the freedom of expression as in Társaság a Szabadságjogokért v Hungary: As the applicant was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression.53

As in Kenedi v Hungary the ECtHR in Youth Initiative for Human Rights v Serbia found that the interference was not prescribed by law, ‘the obstinate reluctance of the intelligence agency of Serbia to comply with the order of the Information Commissioner was in defiance of domestic law and tantamount to arbitrariness’.54 The same co-variation of lack of rule of law, in the form of the refusal by the intelligence agency to follow the order of the Information Commissioner, and lack of transparency as we saw in Kenedi v Hungary, reappeared in Youth Initiative for Human Rights.

49 

ibid at paras 24–25. at para 20 (emphasis added); this para refers back to Társaság a Szabadságjogokért v Hungary (n 28) para 35, in which the Court, referring back to Sdruzeni Jihoceske Matky v Czech Republic (n 24) says that, ‘the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right to access to information’ (emphasis added). This sounds much more preliminary than the assertion in Youth Initiative for Human Rights v Serbia (n 47) para 20, but the latter case must indicate where the ECtHR now stands. 51  Youth Initiative for Human Rights v Serbia (n 47) para 20; referring back to Animal Defenders International v The United Kingdom App No 48876/08, Judgment of 22 April 2013. 52  Youth Initiative for Human Rights v Serbia (n 47) para 20. 53  ibid at para 24 (emphasis added); cf Társaság a Szabadságjogokért v Hungary (n 28) paras 28–29. 54  Youth Initiative for Human Rights v Serbia (n 47) para 26; cf further Affaire Rosiianu c Roumanie, App No 27329/06, Judgment of 24 June 2014; Case of Guseva v Bulgaria, App No 6987/07, Judgment of 17 February 2015. 50 ibid

74  Inger Österdahl G.  Janowiec and Others v Russia On the subject of the obstinate reluctance of public authorities to hand over requested documents despite the orders of a court, the ECtHR in 2013 handed down a judgment in the remarkable case of Janowiec and Others v Russia launched in the wake of the Katyn massacre in 1940.55 The orders were of the ECtHR itself and the orders concerned the handing over to the ECtHR of a copy of the decision of 2004 whereby the Russian investigation into the Katyn massacre had been discontinued.56 The Russian Government refused to submit the requested material. The case concerned a potential violation of Article 3 of the Convention with respect to the family members of the victims of the Katyn massacre, and thus the case in itself had nothing to do with the freedom of expression or freedom of information. Due to the refusal of the Russian Government to furnish the ECtHR with all necessary facilities for the Court’s investigation, however, the ECtHR found that Russia had violated Article 38 of the Convention on account of their refusal to submit a copy of the document requested by the Court.57 Through a somewhat strained analogy perhaps one could say that the right of the ECtHR to access to documents had been violated in this case; needless to say in a general sense the right of the relatives of the victims of the massacre to complete information about the circumstances of the killings has also been violated by the Russian authorities. The refusal by other public authorities to follow orders issued by courts, or institutions with equivalent powers, to submit requested documents or information unites the cases of Kenedi, Youth Initiative for Human Rights, and on the international level, Janowiec. The refusal to follow court orders of course is a serious violation of the rule of law, both national and international.

H.  Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria In Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria in 2013, the applicant association—whose aim it is to research and study past and present transfers of ownership of agricultural and forest land in order to reach conclusions as to the impact of such transfers on society—alleged that the refusal, in 2005, of the Tyrol Real Property Transactions Commission to grant it access to

55 

Janowiec and Others v Russia App Nos 55508/07 and 29520/09, Judgment of 21 October 2013. ibid at para 190. 57  ibid at para 216. 56 

Transparency as Part of a European Rule of Law 75 all the Commission’s decisions issued since January 2000 amounted to a violation of its right to receive information.58 The ECtHR started its assessment of the case in the familiar area of press freedom.59 The relevant case law recognising that the public has a right to receive information of general interest has been developed in relation to press freedom, the Court stated.60 Referring back to the case law mentioned earlier in this chapter, the Court found that the applicant association was involved in the legitimate gathering of information of public interest and that its aim was to carry out research and to submit comments on draft laws, thereby contributing to public debate.61 Therefore, there had been an interference with the association’s ‘right to receive and to impart information’ under Article 10.62 On the issue whether the interference was justified, the ECtHR began by reiterating that it had recently advanced towards a broader interpretation of the notion of the ‘freedom to receive information’ and thereby towards the recognition of a right of access to information.63 In contrast to Társaság a Szabadságjogokért v Hungary, which concerned access to a particular document, the Austrian case concerned access to all the decisions issued by the relevant authority during several years. Still, the ECtHR found that the complete refusal by the Property Transactions Commission to give the applicant association access to any of its decisions was disproportionate.64 The Court noted that the applicant association accepted that the decisions at issue contained personal data which would have to be removed before the decisions could be made available.65 The applicant association also understood that the production and mailing of the requested copies involved a certain cost, which it proposed to reimburse.66 The Court was also struck by the fact that none of the Property Commission’s decisions were published, whether in an electronic database or in any other form, despite the Commission being a public authority deciding disputes over civil rights within the meaning of Article 6 of the Convention, which are, moreover, of considerable public interest.67 The ECtHR noted, finally, that the applicant association received anonymised copies of decisions from all other Regional Real Property Commissions throughout Austria without any particular difficulties.68

58  Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria App No 39534/07, Judgment of 28 February 2014. 59  ibid at para 33. 60 ibid. 61  ibid at para 36. 62 ibid. 63  ibid at para 41; cf Youth Initiative for Human Rights v Serbia (n 47) para 20, in which the ECtHR was even firmer in its proclamation of a right of access under the ECHR. 64  Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria (n 58) para 47. 65  ibid at para 45. 66 ibid. 67  ibid at para 46. 68  ibid at para 47.

76  Inger Österdahl The ECtHR continues to push the boundaries of the right of access to information. Explicit references to the relationship between the right of access and the rule of law have not been made by the ECtHR. Implicitly, judging from the way the Court evaluates the right to access in the light of the ‘watch-dog’ function of the NGOs who have mostly been behind the applications to the ECtHR so far, the Court regards the right of access as a means for the general public to inform itself and to check the power exercised by the public authorities. Thereby, the ECtHR also implicitly lets the right of access work as an indirect support for the rule of law. The right of access to information, however, is still circumscribed by a number of conditions and is closely tied to the freedom of the press which makes the right of access, as developed so far by the ECtHR, still a rather weak instrument in the hands of an individual who would seek access to information of no particular general interest and not intended to be debated publicly. The position of NGOs requesting information on issues of general interest and for public exposure and discussion has been strengthened, although in rather obvious cases so far involving blatant disregard for the public’s right to receive information of general interest and/or blatant disregard for court orders. The ECtHR contributes to increased transparency, but the transparency does not yet reach very deep or very broad into the workings of the public authorities. The ECtHR should be encouraged to go further along the path it has already begun following, in the direction of a real individual right of access to information. This would arguably also strengthen the rule of law.

III.  TENTATIVE CONCLUSION

The tentative answer to the question whether transparency, in the sense of a strong individual right of access to official documents, forms part of a European rule of law, must be in the negative for the time being. This is judging from the case law of the ECtHR and without having analysed the respective laws and, where applicable, Constitutions of the Member States. According to a relatively recent study of the access to information law, among other things, of the Organization for Economic Co-operation and Development (OECD) Member States, practically all OECD Members, that is, most EU countries and thus a large part of the Members of the Council of Europe, beginning in the 1990s, have by now adopted access to information laws.69 Thus, on the national level the picture might be brighter, at least in theory, as far as the status of the right of access to information is concerned

69 OECD, ‘Open government legislation’ in Government at a Glance (OECD Publishing, 2009) 114–15. See also the pioneering, but today slightly outdated, mapping of access to information legislation in the EU and its Member States by Kranenborg and Voermans (n 5); on the UK Freedom of Information Act in particular, see P Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal 4th edn (Cambridge, Cambridge University Press, 2010).

Transparency as Part of a European Rule of Law 77 and its potential contribution to the development of a European rule of law. The ECHR—including the practice of the ECtHR—however still bears evidence of the low level of ambition so far of the Member States as far as the right of access to documents is concerned. The ECHR is vague on the right of access to documents in so far as it certainly does not postulate any such right, but neither would such a right be impossible to construe as we have seen recently through the creative interpretation of the ‘freedom to receive information’ which undeniably is included in the wording of Article 10. Currently, the ECtHR seems to be in the process of recognising a right of access to official documents.70 In the best of worlds, there will be a continued positive dialectic between the strengthened access to information laws of the Members of the Council of Europe and the development of the right to access to documents in the case law of the ECtHR. Bearing witness perhaps to an ambition to strengthen the right of access to public documents within Europe, a Council of Europe Convention on Access to Official Documents was adopted in 2009, but has not yet entered into force.71

IV.  LOOKING FORWARD: DIGITALISATION, INTERNATIONALISATION, PRIVATISATION

Today transparency, here in the form of access to documents, is subject to many different challenges. In addition to the traditional issue of the right of public access to official documents relating primarily to domestic political issues and held primarily by domestic public authorities, a host of new issues relating to transparency are emerging in the wake of digitalisation, privatisation and internationalisation. Starting with digitalisation, it pervades the entire access to documents field. Whereas before, archives where made up of paper documents, archives today are made up of digitalised information. Large quantities of data can be stored and processed in entirely new ways. Typically, digitalisation eases the free flow of information and thereby the access to information on the part of the general public, but digitalisation may just as well covary with decreasing transparency.72 Increased or decreased transparency would seem to depend more on other factors than the digitalisation itself.73

70  This is also the conclusion of P Birkinshaw, ‘Regulating Information’ in J Jowell and D Oliver (eds), The Changing Constitution 7th edn (Oxford, Oxford University Press, 2011) 365, 391 f. 71  Adopted at Tromsö, Norway, on 18 June 2009; preceded by a recommendation Rec (2002) 2, 21 February 2002, adopted by the Committee of Ministers: Recommendation to Member States on access to official documents. 72  See A Roberts, ‘WikiLeaks: the Illusion of Transparency’ (2012) 78 International Review of Administrative Sciences 116. 73  For recent cases where the ECtHR had to grapple with freedom of expression on the Internet, see Yildirim v Turkey App No 3111/10, Judgment of 18 March 2013; Case of Delfi AS v Estonia App No 64569/09, Judgment of 16 June 2015.

78  Inger Österdahl The internationalisation, secondly, of the flows of information is closely connected with the digitalisation of information. Information or ‘official documents’ held by domestic authorities can be stored anywhere in the world. With the Internet, information is practically impossible to contain within national borders at least as long as the ideology of a free flow of information reigns on the Internet. Internationalisation with respect to the right of access to documents can mean a slightly different thing, however, which has been debated in the Swedish context, among others. With internationalisation in the sense of radically increased international cooperation, both regionally and globally, comes the secrecy traditionally surrounding international cooperation and diplomacy.74 The increased international cooperation has recently, in 2014, led to amendments of the Swedish Public Access to Information and Secrecy Act making it easier for Swedish public authorities to classify information exchanged or circulating on the basis of binding international agreements.75 When international cooperation increases, more and more information is exchanged between States within the framework of the cooperation and more and more sectors of the earlier domestic public administration are internationalised.76 When Sweden joined the EU, secrecy with respect to Sweden’s international relations was eased somewhat since too much law-making with direct relevance to the Swedish population would otherwise take place in secret; there would be too little transparency in the law-making process.77 With the intensifying of international cooperation that has developed since—both regional and global—the ‘transparent’ stand taken by Sweden at the time of its entry into the EU is no longer tenable, in the view of the Government, but secrecy must again be strengthened.78 If the formerly national public administration becomes internationalised it is questionable, however, whether the traditional secretive stance towards information emanating from States’ international cooperation can be maintained in the long-run. Eventually, as international cooperation grows and gradually covers more and more sectors of society this would mean that large parts of the public administration would no longer be accessible through a right of access to documents. Moreover, the increased international cooperation which mostly takes place within the framework of international organisations also gives rise to a need for

74  See D Curtin, ‘Official Secrets and the Negotiation of International Agreements: Is the EU Executive Unbound?’ (2013) 50 CML Rev 423; D Curtin, ‘Judging EU Secrecy’ Amsterdam Law School Legal Studies Research Paper No 2012-103, Amsterdam Centre for European Law and Governance Research Paper No 2012-07, University of Amsterdam, 2012. 75  Public Access to Information and Secrecy Act (SFS 2009:400) c 15 para 1(a). 76  On the large-scale computer-based information exchange in the EU, see the special edition of (2014) 20 European Public Law; on the internationalisation of the domestic public administration generally, see D Feldman, ‘The Internationalization of Public Law and its Impact on the UK’ in J Jowell and D Oliver (eds), The Changing Constitution 7th edn (Oxford, Oxford University Press, 2011). 77  See Proposition (Government Bill) 2012/13: 192 Sekretess i det internationella samarbetet (translation: Secrecy in international cooperation) 14 ff; see also Proposition (Government Bill) 1994/95:112 Utrikessekretess m.m. (translation: Secrecy in foreign affairs) 27 ff. 78  See Proposition (Government Bill) 2012/13, ibid 23 ff.

Transparency as Part of a European Rule of Law 79 increased transparency in the international organisations themselves, if transparency is to retain its meaning in an internationalised world as a means at the disposal of the general public to inform itself and to check the exercise of the executive government.79 The EU obviously has taken measures to implement transparency in the EU organisation and most tangibly through its regulation on access to documents held by the European Parliament, the Council and the Commission.80 Privatisation, thirdly, is another current phenomenon that heavily influences the issue of transparency. Normally, the right of access to documents does not apply in the private sector. Today, when the public sector is privatised to a great extent and formerly public activities are carried out either by private companies owned by the state or by private companies owned by private actors, large parts of the formerly public activities are withdrawn from the right of access to official documents. Increased privatisation in combination with increased internationalisation would thus potentially work towards radically decreased transparency. As the purport of ‘public’ and ‘“public” sector’ is transforming, the law on transparency must transform as well if transparency is supposed to be effective when ‘public’ becomes private. The justification of the right of access to documents contained in the formula ‘democracy, rule of law, and efficiency in the public administration’ should remain valid even in the privatised (public) administration.

79  See A von Bogdandy, ‘The European Lesson for International Democracy: The Significance of Arts 9–12 EU Treaty for International Organizations’ (2012) 23 European Journal of International Law 315; A Bianchi and A Peters (eds), Transparency in International Law (Cambridge, Cambridge ­University Press, 2013); and, generally, on the potential impact of rule-of-law-like values on international law and international institutions, E de Wet and J Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (Oxford, Oxford University Press, 2012). 80 See, among others, Hillebrandt, Curtin and Meijer (n 27); C Harlow, ‘Transparency in the European Union: Weighing the Public and Private Interest’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism Beyond Lisbon (Antwerp, Intersentia, 2009); A Arnull, ‘Case Note, Joined Cases C-39/05 P & C-52/05 P, Sweden and Turco v Council, judgment of the Grand Chamber of 1 July 2008’ (2009) 46 CML Rev 1219; D Adamski, ‘Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European Courts’ (2012) 49 CML Rev 521; D Adamski, ‘How Wide is ‘The Widest Possible’? Judicial Interpretation of the Exceptions to the Right of Access to Official Documents Revisited’ (2009) 46 CML Rev 521; I Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’ (2009) 15 European Public Law 239; H Kranenborg, ‘Access to Documents and Data Protection in the European Union: On the Public Nature of Personal Data’ (2008) 45 CML Rev 1079; J Helikoski and P Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation No 1049/2001 on Access to Documents’ (2006) 43 CML Rev 735; P Leino, ‘Just a Little Sunshine in the Rain: The 2010 Case Law of the European Court of Justice on Access to Documents’ (2011) 48 CML Rev 1215; A Alemanno and O Stefan, ‘Openness at the Court of Justice of the European Union: Toppling a Taboo’ (2014) 51 CML Rev 97; D Curtin and J Mendes, ‘Transparence et participation: des principes démocratiques pour l’administration de l’Union européenne’ (2011/1-2) (no 137–38) Revue française d’administration publique 101; F Maiani, J-P Villeneuve and M Pasquier, ‘Less is more? Les propositions de la commission sur l’accès aux documents de l’Union européenne’ (2011/1-2) (no 137–38) Revue française d’adminstration publique 155.

5 Legal Certainty ANNA GAMPER*

I. INTRODUCTION

A

CCORDING TO GUSTAV Radbruch, legal certainty does not mean ­security through law in a substantive sense, but rather security of law:1 the certainty that law—of whatever subject-matter, with whatever ­content—is and remains recognisable and predictable,2 as a quality3 inherent in law itself. ­Radbruch regards legal certainty as a merely formal guarantee of law, falling into the realm of legal positivism.4 Contrasted with justice and expediency,5 the other two core values of Radbruch’s trialistic ‘notion of the law’,6 legal certainty guarantees the continued existence of summum ius even though its content may be summa iniuria. Nevertheless, legal certainty to some extent also realises security through law,7 as this paper argues. Drawing from the experiences of different jurisdictions, as highlighted in European case law, it analyses the position of legal certainty vis-à-vis other constitutional values and principles in the world of European

* 

I am grateful to Dr Maria Bertel for assisting me with the footnotes. G Radbruch, Gesamtausgabe Band 3: Rechtsphilosophie III (Heidelberg, Müller, 1990) 45. The legal connotation and genesis of the term is summarised by A von Arnauld, Rechtssicherheit (Tübingen, Mohr Siebeck, 2006) 60. 2  This aspect is also stressed in Venice Commission, Report on the Rule of Law, Study No 512/2009, CDL-AD(2011)003rev, 4 April 2011, 10 f. 3  Arnauld (n 1) 79. Referring to Arnauld, JR Maxeiner, ‘Some Realism About Legal Certainty in the Globalization of the Rule of Law’ in M Sellers and T Tomaszewski (eds), The Rule of Law in Comparative Perspective (Dordrecht, Springer, 2010) 49 f calls it a ‘guiding idea or leitmotif for the entire legal system’. 4  G Radbruch, Gesamtausgabe Band 2 Rechtsphilosophie II (Heidelberg, Müller, 1993) 302 f and 306. 5  Radbruch, ibid 302 ff and 465. 6  Legal certainty is sometimes conceived as an independent principle, sometimes as a p ­ rinciple inherent in the rule of law (extensively illustrated in L Fuller’s (The Morality of Law 2nd edn (New Haven, Yale University Press, 1969)) list of eight key elements of the rule of law); this chapter argues, however, that there may even be a contradiction between legal certainty and the rule of law. See, on the general relationship between legal certainty and the rule of law, Maxeiner (n 3) 43 ff. 7  On new dynamics in this regard, Arnauld (n 1) 98. 1 

Legal Certainty 81 constitutionalism. In conclusion, the constitutional identity and role of legal certainty as well as its significance for the rule of law in Europe will be evaluated.

II.  ELEMENTS OF LEGAL CERTAINTY

A.  Formal Certainty i. Recognisability Legal norms must be published in a manner that allows their addressees to recognise them as such. This entails clear rules on the publication of legal norms,8 but also easy public access9: they ought to be identifiable without a ‘brainteaser, which would require meticulousness and archival study even from external experts’10 or ‘subtle expertise, extraordinary methodic abilities and a certain delight for brainteasers’11. Recognisability also requires clear rules on competence and procedure when a legal norm is enacted. As long as it remains unclear whether a legal norm has been rightfully passed, its recognition as a valid legal norm could be doubtful. Determination of precise procedural rules may, in Habermasian terms,12 to some extent even compensate less determination with regard to the content of a subject-matter. ii. Predictability a. Scope Legal norms need to be predictable,13 that is, understandable in order for them to be properly applied and known by their addressees. Predictability requires textual clarity14 and temporal consistency. A norm that can be amended, with or without retroactive effect, is uncertain as to its continued (perhaps even past) validity. As all legal norms need to be interpreted, also certainty on interpretive competence and methods is an important requirement for the predictability of norms.

8 

This was also stressed by the ECJ; a summary of the case law is given by Arnauld (n 1) 501 f. P Popelier, ‘Five Paradoxes on Legal Certainty and the Lawmaker’ (2008) II Legisprudence 58 ff. Austrian Administrative High Court, VwGH 98/12/0057. 11  Austrian Constitutional Court, VfSlg 12.420/1990. 12  J Habermas, ‘Recht und Moral (Tanner Lectures 1986)’ in J Habermas, Faktizität und Geltung 4th edn (Frankfurt am Main, Suhrkamp, 1994) 551. Using Habermasian theory as a yardstick for the analysis of the ECJ’s reasoning on legal certainty, E Paunio, ‘Beyond Predictability—Reflections on Legal Certainty and the Discourse Theory of Law in the EU Legal Order’ (2009) 10 German Law Journal 1469 ff. 13  On the importance of predictability, Popelier (n 9) 60 and BZ Tamanaha, On the Rule of Law (Cambridge, Cambridge University Press, 2004) 66. 14 Case C-308/06 Intertanko [2008] ECR I-04057; Case C-158/07 Förster [2008] ECR I-08507; Case C-110/03 Belgium v Commission [2005] ECR I-02801. 9 

10 

82  Anna Gamper b.  Textual and Interpretive Clarity A predictable legal content requires that normative texts are sufficiently clear and understandable.15 It will not suffice to be able to predict that a norm applies, but not, what the content of that norm is. Apart from ‘mere’ textual inaccuracy, a particular threat to legal certainty arises in cases where superordinate law formally delegates power to subordinate law without determining its content. Though all legal norms require interpretation,16 some of them will be more uncertain than others, if different interpretive methods result in different, but equally possible meanings. Explicit interpretive rules could play a major role in this context, but we find them entrenched only in a small minority of European constitutions.17 Even though interpretive rules are themselves subject to interpretation, they have at least the potential to resolve interpretive problems provided that they are themselves clearly worded and that they prescribe (or exclude) interpretive methods instead of just declaring them to be possible. One of the less regarded, though, in my opinion, crucial problems with respect to legal certainty lies in the uncertain and unpredictable use of interpretive methods.18 Certainty of interpretation cannot be achieved as long as an interpretation is not final and authoritative; this demands clear rules on interpretive competence. As will be examined later, multi-level jurisdiction makes this situation more complex, as the need for transjudicial dialogue19 increases. But even if an interpretation has become final and authoritative, this will not necessarily hinder the

15  See, for instance, the Austrian Constitutional Court in VfSlg 12.184/1989 which mentions legal clarity and legal certainty as claims inherent in the rule of law. On specific clarity requirements in the context of human rights see, eg, C Grabenwarter, European Convention on Human Rights. Commentary (München, Beck, Hart, Nomos, Helbing Lichtenhahn, 2014) 178 ff. 16  As the ECtHR pointed out (case Nejdet Şahin and Perihan Şahin v Turkey App no 13279/05 (ECtHR 20 October 2011) § 85), the ‘Court reiterates that interpretation is inherent in the work of the judiciary. However clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation’. However, the very ‘interpretability’ of law, as a basic requirement for any kind of interpretation, depends on a variety of factors (see, recently, J Melton et al, ‘On the Interpretability of Law: Lessons from the Decoding of National Constitutions’ (2013) 43 British Journal of Political Science 399 f). 17  Though several European constitutions contain explicit rules on human rights interpretation (see below fn 75), transitory interpretation and on interpretive competence, general interpretation rules, such as in Art R para 3 and Art 28 of the Fundamental Law of Hungary, constitute rare cases. With more detail, A Gamper, Regeln der Verfassungsinterpretation (Vienna, Springer, 2012) 7 ff. 18  When courts, for instance, use foreign law when they interpret domestic law, this often does not enhance predictability of interpretation, but rather follows the ‘cherry picking method’; see T Groppi and M-C Ponthoreau, ‘Conclusion. The Use of Foreign Precedents by Constitutional Judges: A Limited Practice, An Uncertain Future’ in T Groppi and M-C Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013) 418 f; on comparative methodology see A Gamper, ‘Methodische Problemstellungen der Rechtsvergleichung als Auslegungsmethode des ­Verfassungsrechts’ in A Gamper and B Verschraegen (eds), Rechtsvergleichung als juristische ­Auslegungsmethode (Vienna, Jan Sramek Verlag, 2013) 163 ff. 19  C Saunders, ‘Judicial Engagement with Comparative Law’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar Publishing, 2011) 574 and the contributions in Groppi and Ponthoreau (n 18).

Legal Certainty 83 (constitutional) law-maker from overruling this interpretation either through a constitutional amendment or through authentic interpretation. c.  Temporal Consistency Predictability also relies on temporal consistency, since addressees of legal norms need to know if they may rely on a certain law in the future or regarding the past. However, while the aforementioned elements of legal certainty can be achieved without negative impact on other constitutional values and principles, temporal consistency cannot be guaranteed under all circumstances. It is inherent in democratic legal systems that the law can be changed from time to time, and indeed it should be changed if this is justified by factual changes.20 All written European constitutions, therefore, provide rules on the revision of law, which usually ­differ with regard to the kind of law that is going to be amended.21 In most countries, ordinary laws can be amended more easily than constitutional laws, which favour legal certainty: constitutional provisions, on which all other kinds of law depend, should be more stable and less prone to changes than other legal norms, but the extent of constitutional rigidity differs very much from one constitution to another. ‘Absolute’ rigidity is a rare phenomenon: only some European constitutions include ‘eternity clauses’,22 while in most cases constitutions can be amended to an unlimited degree provided that the rules on the amendment procedure are observed. Even less ‘absoluteness’ of temporal consistency applies with regard to ordinary laws which, as many European jurisdictions show, can be amended very easily.

B.  Substantive Certainty While it is true that legal certainty may even protect summa iniuria, this does not necessarily imply that legal certainty has no substantive dimension. Today, substantive legal certainty is implicit in many fundamental rights entrenched in the constitutions of the European states, in the European Convention on Human Rights (ECHR)23 and in EU law24.

20 

Popelier (n 9) 53. Classen, Nationales Verfassungsrecht in der Europäischen Union (Baden-Baden, Nomos, 2013) 231. 22 Such as the constitutions of Armenia, the Czech Republic, France, Germany, Greece, Italy, ­Norway, Portugal, Romania, Turkey or Ukraine, always with regard to specific constitutional materiae. 23  In case Nejdet Şahin and Perihan Şahin v Turkey (n 16) § 56, the ECtHR even held that ‘the ­principle of legal certainty [… was] implicit in all the Articles of the Convention’. 24  See, on the case law, Arnauld (n 1) 503 f. However, the ECJ, rather differently from the ECtHR, extends the principle of legal certainty to other issues than just individual rights protection, as occasion arises (see Arnauld, ibid 535). 21 C

84  Anna Gamper In the first place, this addresses the principle of equality25 which protects vested rights or legitimate expectations from temporal discrimination. Legitimate ­expectations are also protected by the right of property according to Article 1 of Protocol Number 1 to the ECHR, for example, in the context of claims regarding retransfer of ownership.26 Expectations are legitimate if they rely on law, including standing case law, but this does not cover all possible kinds of expectations and certainly not future expectations that cannot be based on a previous legal basis.27 It is evident that interferences regarding the past are more intensive than those regarding the future: retroactive laws divest the former law of a certainty that was already verified in the course of time, since, for a period in the past, the law had indeed been certain, namely valid and applicable. Nevertheless, retroactive effect is not always illegitimate, as much as pro futuro infringements are not always legitimate, depending on the individual concern, time or severity of interference. In particular, the rights of nulla poena sine lege and nullum crimen sine lege (Article 7 ECHR, Article 49 EU Charter of Fundamental Rights) protect individuals from retroactive changes of the law and prohibit analogies in this regard. Individuals must neither be prosecuted nor punished for any kind of action which was no criminal offence at the time when it was taken and are thus not liable to punishment. While European case law has restricted the legitimacy of retroactive effect also in other fields,28 these prohibitions are absolute—and even exempt from emergency measures under Article 15 ECHR—unless the new punishment would be more favourable from the perspective of the punished. In contrast, Article 4 of Protocol Number 7 to the ECHR, although it basically entrenches ne bis in idem (which is also exempt from emergency measures), does not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. The European Court of Human Rights (ECtHR) also ties legal certainty to the right to a fair trial under Article 6 ECHR. On the one hand, this includes severe restrictions on the reopening of a res iudicata.29 On the other hand, this concerns the problem that law, including case law, is changed during an administrative or judicial procedure or that different courts adopt different interpretive methods and thus come to different decisions.

25 

On equality as the link between justice and legal certainty, see Arnauld (n 1) 659. The context between legal certainty and property is already stressed by J Bentham (Principles of the Civil Code, Pt I, Ch VII; see J Bowring (ed), The Works of Jeremy Bentham, vol I (New York, Russell & Russell, 1962) 308), according to whom the ‘principle of security […] directs that events, inasmuch as they are dependent upon the laws, should be conformed to the expectations to which the laws have given birth’. 27  Grabenwarter (n 15) 368. See also Legrand v France App no 23228/08 (ECtHR 26 May 2011). 28  With more details on the case law, Arnauld (n 1) 514 ff. 29  See below 86 ff, and Grabenwarter (n 15) 139 f. 26 

Legal Certainty 85 Where constitutions provide for the right to a lawful judge, certainty on competence30 becomes both a substantive and subjective claim. This has, for instance, caused the Austrian Constitutional Court to emphasise that those legal norms that determine the respective authorities responsible for different issues had to be particularly precise.31 Conversely, legal certainty has also been used as a substantive argument in order to justify interferences with fundamental rights, such as the equality principle.32 This shows the Janus-faced nature of legal certainty: as will be analysed in the following chapter, legal certainty neither serves the rule of law and human rights under all circumstances nor is it always compatible with other principles inherent in European constitutionalism.

III.  PROBLEM AREAS OF LEGAL CERTAINTY

A.  Legal Certainty versus Legal Delegation Legal norms sometimes do not regulate subject-matters substantively, but only determine the competence for regulating a subject-matter. This is a frequent phenomenon in decentralised legal systems where powers are distributed between different territorial levels, such as in federal states or other multi-level systems such as the EU.33 All legal norms that delegate power to subordinate legal norms authorise the latter to regulate a content which, in terms of the authorising norm, is not yet ‘certain’—possibly not even as to whether the subordinate norm will be issued at all; this includes cases of ‘constitutional deferral’34 where normative decisions are postponed to a possible future enactment. Although such enhanced complexity of legal hierarchies does not absolutely exclude legal certainty, it will be more difficult to find out the content of a legal norm. While legal delegation, with certain restrictions, may be tolerable in periods of state emergency35 or under other strictly limited conditions36, a broad and unrestricted delegation of normative power, for example, in order to elude substantive parliamentary law-making, is incompatible with the rule of law.37

30 

See above 81. See, eg, the Austrian Constitutional Court in VfSlg 10.311/1984, 18.639/2008. See, recently, the Austrian Constitutional Court in VfSlg 19.745/2013. 33  On federalism and legal certainty Maxeiner (n 3) 595 ff and 605 ff. 34  See R Dixon and T Ginsburg, ‘Deciding not to Decide: Deferral in Constitutional Design’ (2011) 9 International Journal of Constitutional Law 636 ff. 35 See the critical observations made by the Venice Commission on the extensive recourse to ­government emergency ordinances in Romania (Opinion 720 / 2013, CDL-AD(2012)026, 17 ­December 2012). 36  As in France, Italy or Spain, whose constitutions provide for delegated laws at executive level, though under highly restricted conditions. 37  See, for instance, a recent debate in Wales on the question of regional ‘skeleton laws’; an i­ llustrative example is the proposal made in the Welsh Government’s White Paper ‘Towards the ­Sustainable 31  32 

86  Anna Gamper B.  Legal Certainty versus Legality Legal certainty may not just protect unjust law in the sense of Gustav Radbruch, but even illegal law in the sense of legal positivism. Thus, legal certainty will plead for the continuance of a res iudicata, even if it is an illegal status that is continued; this creates a conflict between legal certainty and legality, as another fundamental element of the rule of law.38 Legality would plead that confidence in illegal norms deserves no protection or only to a minor degree;39 legal protection will, for instance, hardly be appropriate where the illegal decision was intentionally caused by false assertions made by a party. It also depends on the kind of legal norm whether and how it may be considered a res iudicata and whether and how it will be possible to hamper its continuance. Laws do not become ‘final’ in the sense of individual legal norms, since the res-iudicata-effect is normally specific to individual legal acts. Both the ECtHR40 and European Court of Justice (ECJ)41 stressed that legal certainty, deriving from a res iudicata, could only be set aside for certain compelling and substantive reasons42 and not just in order to apply a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts. Moreover, the ECtHR admitted that the reasons for setting aside a final decision did not lend themselves to precise definition.43 Rather, the respective court would have to decide, in each case, to what extent the departure from the principle of legal

Management of Wales’ Natural Resources. Consultation on proposals for an Environment Bill’ (http://wales.gov.uk/docs/desh/consultation/131029environment-bill-white-paper-consultation-en. pdf) 47 ff. 38 The Austrian Constitutional Court (VfSlg 17.394/2004) called this the ‘conflict between the ­principles of legal correctness (legality) and legal certainty or legal continuance.’ 39  A similar reason underlies the power of the Austrian Constitutional Court to extend the effect of an annulment of a regulation or law, ie the non-applicability of the repealed norm, to cases previous to the case that led to the annulment, if it decides to do so (Art 139 para 6, Art 140 para 7 of the Austrian Federal Constitutional Act). In contrast, Art 282 para 4 of the Constitution of Portugal empowers the Constitutional Court to rule that the scope of the effects of a declaration on illegal norms shall be restricted when required for the purposes of legal certainty. In both cases, however, it is up to the Courts to determine whether they extend or restrict this scope, which, again, entails further uncertainty. 40  Ryabykh v Russia App no 52854/99 (ECtHR 24 July 2003) § 52; Margushin v Russia App no 11989/03 (ECtHR 1 April 2010) § 31; Salov v Ukraine App no 65518/01 (ECtHR 6 September 2005) § 93; Protsenko v Russia App no 13151/04 (ECtHR 31 July 2008) § 26; Kravchenko v Russia App no 34615/02 (ECtHR 2 April 2009) § 45; Sutyazhnik v Russia App no 8269/02 (ECtHR 23 July 2009) § 38. 41 Case C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-00411, § 37 f; Case C-453/00 Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren [2004] ECR I-00837, § 24, 27; Joined Cases C-392/04, C-422/04, i-21 Germany v Bundesrepublik Deutschland and Arcor v ­Bundesrepublik Deutschland [2006] ECR I-8559, § 51 f. 42  Such as ‘an error of fundamental importance to the judicial system’, a ‘fundamental defect’ or a ‘miscarriage of justice’. 43  Sutyazhnik v Russia (n 40) § 35.

Legal Certainty 87 c­ ertainty was justified.44 This aggravates legal uncertainty, as not even the criteria on legitimate interferences with legal certainty are certain.45 The ECJ, too, acknowledged that finality of an administrative decision contributed to legal certainty and that EU law did not oblige an administrative body, in principle, to reopen an administrative decision which had become final.46 The Court held, however, that particular circumstances might be capable, by virtue of the principle of sincere cooperation arising from Article 4 paragraph 3 Treaty on European Union (TEU), of requiring a national administrative body to review an administrative decision that had become final, in particular to take account of the interpretation of a relevant provision of EU law which the ECJ had given subsequently.47 The ECJ thus takes account of the particular features of the situations and interests at issue in order to strike a balance between the requirement for legal certainty and the requirement for legality under EU law. The ECJ also set aside judgments of the General Court of the European Union arguing that, in principle, the withdrawal of an unlawful measure was permissible, even though the principles of legal certainty and the protection of legitimate expectations required that the withdrawal should occur within a reasonable time and that regard be had to how far the person concerned might have been led to rely on the lawfulness of the measure.48 In vertical European context, the problem of ‘illegal certainty’ is even larger than at national level, as the national res iudicata opposes EU law—a conflict which would normally be resolved by the principle of primacy of EU law.49 It is remarkable that, due to the significance attributed to legal certainty, the ECJ is nevertheless willing to strike a balance without upholding the primacy of EU law absolutely and one-sidedly.50 However, the ECJ has also made clear that legal certainty will not automatically prevail, for example, in particular cases where its own subsequent interpretation had made the illegality of the national decision manifest.51 A minori ad maius, this pleads for more legality and less certainty in cases, where a previous interpretation was not overturned by a subsequent authoritative interpretation, but where the national decision was taken despite prevailing interpretation of the ECJ or without referring to the ECJ even though a preliminary ruling would have been required. 44 ibid.

45  See, on uncertain language used by the ECtHR as a threat to the rule of law, JA Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2005) 11 Columbia Journal of European Law 125 ff. 46  Willy Kempter (n 41) § 37. 47  ibid, § 38 (with further references). 48  Case C-402/11 P, Jager & Polacek/HABM [2012]; Case C-508/03 Commission v United Kingdom [2006] ECR I-3969, § 68 and the case law cited. 49 In the Opinion of Advocate General Bot, Case C-399/11 Stefano Melloni v Ministerio Fiscal, ­delivered on 2 October 2012, § 104, the Advocate General argued that it would even ‘undermine the principle of legal certainty’, if ‘a provision of secondary law, which is nevertheless in accordance with the fundamental rights guaranteed by the Charter, could be set aside by a Member State on the ground that it infringed one of its constitutional provisions’. 50  Willy Kempter (n 41). 51 ibid.

88  Anna Gamper C.  Legal Certainty versus Evolutive Interpretation A major tension between legal certainty and other constitutional principles relates to judicial interpretation: the problem that courts interpret legal norms in an ‘evolutive’ way that is contrary to the will of the original or present lawmaker or even inconsistent with their own previous case law.52 This is facilitated by those constitutions—a vast majority in Europe53—that allow courts to develop their own interpretation rules which are unpredictable inasmuch as no explicit interpretive methods are entrenched in the positive law.54 Naturally, divergences will also increase where different branches of courts exist. Even where courts— usually, constitutional courts or any apex courts—are entitled to authoritative ­interpretation,55 it is not predictable whether these courts will themselves remain true to their own interpretation, for example, when new judges come into office.56 As the ECtHR stated, the ‘persistence of conflicting court decisions […] can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law’.57 Nevertheless, the ECtHR also acknowledged that the possibility of conflicting court decisions was an inherent trait of any judicial system which was based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction.58 Such divergences might also arise within the same court.59 That, in itself, was not considered contrary to the Convention, although the ECtHR’s own case law is not quite clear or coherent on this issue: it seems that a violation depends on whether a court arbitrarily produces inconsistent case law, for instance, when different decisions on identical matters are taken on the same day, while changes of case law resulting from ‘normal’ interpretive evolution apparently are less problematic. The ECtHR admitted that, as case law was not unchanging, but on the contrary, evolutive in essence, the principle of 52  Popelier (n 9) 49, mentions the paradox that the ‘review of legislation in the light of the principle is itself unpredictable’. 53  See above fn 17. 54 A complete surrender of interpretation to the courts perhaps amounts to what J Bentham (The Rationale of Judicial Evidence, Bk IX, Pt VI, Ch I, § 2; see J Bowring (ed), The Works of Jeremy Bentham, vol VII (Edinburgh, William Tait, 1843) 529), called the ‘planting [of] uncertainty in the very fountain of legal certainty’. 55  Several European constitutions explicitly empower constitutional courts or other apex courts to authoritative interpretation; with more examples Gamper (n 17) 51 ff. 56  This possibility is admitted by M Tushnet, Weak Courts, Strong Rights (Princeton, Princeton ­University Press, 2009) 33 f even with a view to strong-form review which he basically characterises as a system where courts have ultimate and authoritative power to interpret law and decide issues. 57  Nejdet Şahin and Perihan Şahin v Turkey (n 16) § 57; Albu and Others v Romania App no 34796/09–34859/09 (ECtHR 10 May 2012) § 34; Vučković and Others v Serbia App no 17153/11 and 29 others (ECtHR 28 August 2012) § 54; Remuszko v Poland App no 1562/10 (ECtHR 16 July 2013) § 92. 58  Nejdet Şahin and Perihan Şahin (n 16) § 51; Albu and Others (n 57) § 34; Vučković and Others (n 57) § 54; Remuszko (n 57) § 92. 59  Nejdet Şahin and Perihan Şahin (n 16) § 51; Albu and Others (n 57) § 34; Vučković and Others (n 57) § 54; Remuszko (n 57) § 92.

Legal Certainty 89 good administration of justice could not be taken to impose a strict requirement of case law.60 The ECtHR’s duty was to ensure that this principle was upheld when the fairness of the proceedings or the rule of law required it to intervene to put a stop to the uncertainty created by conflicting judgments pronounced by different courts on one and the same question.61 The legal certainty it aimed to achieve had nevertheless to be pursued with due respect for the decision-making autonomy and independence of the domestic courts, in keeping with the principle of subsidiarity at the basis of the Convention system.62 The ECtHR further considered that in a judicial system with several different branches of courts, and where several supreme courts existed side by side and were required to give interpretations of the law at the same time and in parallel, achieving consistency of the law might take time, and periods of conflicting case law might therefore be tolerated without undermining legal certainty.63 As a result, the ECtHR held that responsibility for the consistency of their decisions lay primarily with the domestic courts, that any intervention by the Court ought to remain exceptional and that individual petitions to the Court could not be used as a means of dealing with or eliminating conflicts of case law that might arise in domestic law or as a review mechanism for rectifying inconsistencies in the decisions of the different domestic courts.64 With regard to its own case law, the ECtHR even held: While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases […] However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved […] A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement.65

Neither, however, are courts necessarily inconsistent in their adjudication; nor can we always trust that law-makers will enact legal norms that are as certain as we would wish them to be. Moreover, both civil and common law jurisdictions seek to avoid uncertain case law in several ways. In many European civil law jurisdictions, for instance, positive norms encourage courts to develop their case law as consistently as possible, even though this must not hamper judicial independence and may apply only intra and not inter fora.66 Consistency may also be a

60  Nejdet Şahin and Perihan Şahin (n 16) § 84; Atanasovski v ‘The former Yugoslav Republic of ­Macedonia’ App no 36815/03 (ECtHR 14 January 2010) § 38; Unédic v France App no 20153/04 (ECtHR 18 December 2008) § 73 f. 61  Nejdet Şahin and Perihan Şahin (n 16) § 84. 62 ibid. 63  ibid, § 86 f. 64  ibid, § 87 ff. 65  Christine Goodwin v The United Kingdom App no 28957/95 (ECtHR 11 July 2002) § 74. 66  The uniformity and consistency of case law either intra or inter fora is explicitly mentioned in the positive law of Germany, Switzerland, Spain, Portugal and the UK. See also § 9 para 2 of the Austrian

90  Anna Gamper ­ ecisive factor when it comes to additional judicial appeal stages, as the admission d or responsibility to treat a case may depend on the question whether the relevant issue had been treated consistently in the prevailing case law or not.67 In common law jurisdictions, the stare decisis doctrine helps secure consistent interpretation on a broader and more formal basis, since it positively requests the compliance with precedents not just with regard to one and the same court, but as a general principle in the inter-court relationship. Also in civil law jurisdictions, where this doctrine is not formally provided, legal certainty is protected to some extent, as specialised constitutional courts, whose interpretation will usually be followed by lower courts as well, are entitled to authoritative interpretation on constitutional or other fundamental issues.68 However, even specialised constitutional review will not absolutely allow constitutional courts to monopolise constitutional issues, but there will still remain different interpreters of legal norms before a constitutional court gives its final and authoritative judgment. As long as the judiciary consists of different branches of courts, different interpretations of legal norms are possible, at least as long as the authoritative interpretation of one court does not exclude any further say on the matter. In some European states where several apex courts co-exist, however, their decisions cannot be challenged before the constitutional court as another apex court.69 Moreover, lower courts and authorities cannot be practically hindered from illegally adopting their own interpretive approaches after an authoritative decision, even though they risk the repeated annulment of their decisions in that way.70 This situation is somewhat relieved by the fact that national (particularly apex) courts as well as the ECtHR and ECJ engage in an intensive transjudicial

Administrative High Court Act according to which the President of this Court, irrespective of full independence of the judges, has to take care that the case law is as consistent as possible; similarly, § 5 para 1 of the Federal Financial Court Act and § 3 para 1 and § 16 para 3 of the Federal Administrative Court Act as well as the regional laws on regional administrative courts. Some of these provisions also entrench the requirement of access to clear documentation both on the case law of the respective court itself and that of other courts; transnational research engines regarding case law have been established by courts (see, eg, http://nswca.jc.nsw.gov.au/menus/courtofappeal.php), by the Venice Commission (www.codices.coe.int) and by the EU Fundamental Rights Agency (http://infoportal.fra. europa.eu/InfoPortal/caselawFrontEndAccess.do?homePage=yes). 67 

Such provisions can be found, eg, in Austria, Germany and Switzerland. V Ferreres Comella, ‘The Rise of Specialized Constitutional Courts’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar Publishing, 2011) 268. In VfSlg 19.730/2012, the Austrian Constitutional Court stressed its ‘guiding function’ for the consistent interpretation and application of constitutional law (see, with more detail, A Gamper, Verfassungsge­ richtsbarkeit und Gewaltenverbindung (Vienna, Verlag Österreich, 2016) 181 ff. 69  In a Turkish case (Nejdet Şahin and Perihan Şahin (n 16) § 81), the ECtHR admitted ‘that in a domestic legal context characterised, as in the present case, by the existence of several Supreme Courts not subject to any common judicial hierarchy’ it could not ‘demand the implementation of a vertical review mechanism of the approach those courts [… had] chosen to take. To make such a demand would go beyond the requirements of a fair trial enshrined in Article 6 § 1 of the Convention.’ 70  This could lead to endless ‘ping-pong’ between national courts which would violate the right to an effective remedy. 68 See

Legal Certainty 91 dialogue,71 which ranges from ‘voluntary’ cross-fertilisation at horizontal level to formalised hierarchical mechanisms, such as the request for a preliminary ruling under Article 267 Treaty on the Functioning of the European Union (TFEU) or for an advisory opinion as intended by Protocol Number 16 to the ECHR. While horizontal dialogue72 has, as yet, not generally reached a methodically sound structure that avoids rather than enhances unpredictability, vertical dialogue through binding preliminary opinions73 safeguards consistency of interpretation throughout Europe. Nevertheless, preliminary opinions may also have adverse effects on legal certainty: while they establish certainty for all subsequent decisions that need to be consistent with the interpretation taken in the preliminary ruling, they may require an interpretation contrary to that taken by a previous judgment or, under certain conditions,74 even the reopening of a res iudicata. Transjudicial dialogue is completed by ‘consistency’ interpretation common to many European jurisdictions, namely the obligation for courts to interpret law in a way which makes it compatible with (national, international or supranational) superior law.75 Although the persuasiveness of this kind of interpretation may vary with the type of superior law and moreover raise some methodological doubt about its subsidiary nature,76 the method as such contributes to legal certainty: it strives to make law look compatible with superior law, something which was perhaps not always intended by the maker of the former, but which could be expected in a harmonious and consistent legal system.

D.  Legal Certainty versus Separation of Powers Although interpretation by different courts thus not necessarily endangers legal certainty, ultimate tensions between the domains of the legislature and the judiciary remain. This concerns separation of powers, but also democracy, since judges, compared to parliaments or other law-making bodies, normally have no or little

71  See the contributions by C Grabenwarter and W Obwexer in A Gamper and B Verschraegen (eds), Rechtsvergleichung als juristische Auslegungsmethode (Vienna, Jan Sramek Verlag, 2013). 72  National courts still have very different attitudes whether and how they use foreign precedents, even though this is required in the context of Art 52 para 4 of the EU Charter; see also the worldwide comparison in Groppi and Ponthoreau (n 18). 73  Preliminary rulings could be requested precisely in order to find out whether a national rule is in line with the principle of legal certainty (see request for a preliminary ruling from Tribunalul Sibiu [Romania] lodged on 18 June 2013—Ilie Nicolae Nicula v Administraţia Finanţelor Publice a ­Municipiului Sibiu, Administraţia Fondului pentru Mediu, [Case C-331/13]). 74  See above 83 f and 86 f. 75 This is sometimes even explicitly entrenched in constitutional law: See, as a general rule, Art 28 and Art R of the Fundamental Law of Hungary; with regard to human rights, see Sec 3 para 1 UK Human Rights Act, Art 10 para 2 Constitution of Spain, Art 20 Constitution of Romania, Art 16 para 2 Constitution of Portugal. In other countries, constitutional courts have themselves developed a ­consistency doctrine (with regard to Austria, Gamper (n 17) 217 ff). 76  Gamper, ibid 228.

92  Anna Gamper democratic legitimacy, as they are usually not elected by the people.77 Referring to Hans Kelsen,78 one could ask: who is the guardian of legal certainty? Is it a (constitutional) court or is it the (constitutional) law-maker? A first clue here is the wording ‘prescribed by/provided for by law’79 which we find both in the ECHR and the EU Charter of Fundamental Rights when it comes to define the limits of most of the rights therein enshrined. Legal certainty may well be implicit in these rights, but as far as they may be infringed by law (even though in accordance with the proportionality principle), the law-maker will have a better position to interfere with legal certainty than a court whose rulings are normally not ‘law’ in the sense of the infringement clauses. While, according to the ECtHR, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case law,80 a democratically elected legislature will, at least generally, neither be prevented from amending existing case law,81 other pieces of law or even the constitution itself.82 As regards the overruling of apex courts’ decisions by subsequent amendments, it is hardly possible to assess the constitutionality of these amendments in a general way. Speaking from a purely national constitutional perspective, the ultimate juridical question is: does a constitution provide limits to constitutional amendments or not? Does it allow constitutional courts to review a possible breach of these limits or just formal irregularities in the amendment procedure83 or not even that?84 Where the independence of courts, judicial review and fundamental rights

77  Judges may nevertheless exercise a democratic function inasmuch as they protect superior law, the making and amending of which usually needs more democratic input, from infringement by democratically less legitimate pieces of law; some preliminary thoughts on this point can already be found in the Federalist Papers, No 78 (www.foundingfathers.info/federalistpapers/fed78.htm); see also Gamper (n 68) 33 ff 78  H Kelsen, Wer soll der Hüter der Verfassung sein? (Berlin-Grunewald, Rothschild, 1931). 79  See in this context Arnauld (n 1) 536 ff with references to the case law. 80  Nejdet Şahin and Perihan Şahin (n 16) § 58, Unédic (n 60) § 74. 81  See, however, the Venice Commission (n 2) 11: ‘Final judgments by domestic courts should not be called into question […] In addition, Parliament shall not be allowed to override fundamental rights by ambiguous laws […] However, the need for certainty does not mean that rules should be applied so inflexibly as to make it impossible to take into account the dictates of humanity and fairness […] The existence of conflicting decisions within a supreme or constitutional court may be contrary to the principle of legal certainty. It is therefore required that the courts, especially the highest courts, establish mechanisms to avoid conflicts and ensure the coherence of their case-law.’ 82  This is overseen by Radbruch according to whom legal positivism prioritised the notion of legal certainty; however, the positive law-maker may as well overrule previous law, even with retrospective effect. 83  Such a ‘restrictive’ approach can nevertheless imply substantive review, if the constitution distinguishes between different amendment procedures depending on the content of an amendment. 84  The Venice Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law, Opinion 720 / 2013, CDL-AD(2013)012, 17 June 2013, 23 held that, ‘the idea that a Constitutional Court should not be able to review the content of provisions of Fundamental Law [… was] common ground as a general rule in many member States of the Council of Europe.’ In Opinion No 679 / 2012, CDL-AD(2012)010, 11 the Venice Commission had remarked with regard to a Belgian case: ‘Most constitutional systems operate on the assumption that all constitutional provisions have a ­similar

Legal Certainty 93 are perpetual constitutional values which must not be amended, constitutional amendments will be unconstitutional if they pose serious threats to these values.85 Where constitutions may be amended in all possible directions, however, the overruling of prevailing case law even by subsequent constitutional amendments will not be unconstitutional.86 The final decision thus rests in the quality of a rigid or flexible constitution; whether this is in line with the ECHR or EU law, whether this may entail sanctions, loss of membership or other consequences is a different matter not to be discussed here. A particular case has recently been constituted by the 4th Amendment to the Hungarian Constitution87 according to which point 5 of the Closing and ­Miscellaneous Provisions reads as follows: ‘Constitutional Court rulings given prior to the entry into force of the Fundamental Law are hereby repealed. This provision is without prejudice to the legal effect produced by those rulings.’ The Venice Commission feared that this rule would result in legal uncertainty and stressed the need for constitutional interpretation which would lead to a coherent development of law on the basis of the principles contained in the Constitution.88 It regarded earlier case law, even adopted on the basis of constitutional provisions, which were no longer in force, as an important source for this coherent development of the law and literally called it ‘a misconception that it is good for constitutional courts to have a wide margin of appreciation. They should not take arbitrary decisions, but provide for constitutional coherence through decisions based on the Constitution and previous case law.’89 On the other hand, the Venice Commission also said: ‘Furthermore, any constitutional court is free to deviate from its former decisions, provided it does so in a reasoned way’.90 It is not so evident, however, why the contested rule poses problems with regard to legal certainty: clearly, it would be highly problematic if such rulings were deprived of

­ ormative rank, and that the authority which revises the Constitution has the authority to thereby n modify pre-existing, other constitutional provisions. The result is that, in general, one constitutional provision cannot be ‘played out’ against another one. The absence of a judicial scrutiny of constitutional revisions is owed to the idea that the constitutional revision is legitimised by the people itself and is an expression of popular sovereignty. It is a matter of balancing the partly antagonist constitutional values of popular sovereignty and the rule of law whether to allow for rule-of-law induced barriers against constitutional revision, or for judicial scrutiny. […] Most Constitutions have placed a prime on popular sovereignty in this context.’ 85  The Venice Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law 24 f found that only in some European states, such as Austria, Bulgaria, Czech Republic, Germany, P ­ ortugal or Turkey, constitutions had an ‘inner hierarchy’, which, however, was ‘not a European s­tandard, although it is a feature that arises more and more in States where Constitutional Courts are competent to annul unconstitutional laws.’ 86  See, however, the Venice Commission (n 2) 11: ‘Parliament shall not be allowed to override ­fundamental rights by ambiguous laws.’ 87 Although the 5th Amendment repealed some of the provisions introduced by the 4th ­Amendment, this did not concern point 5 of the Closing and Miscellaneous Provisions. 88  Venice Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law 21. 89 ibid. 90 ibid.

94  Anna Gamper their legal effect, which, however, according to the second sentence, they are not.91 What remains to be ‘repealed’, is rather opaque. The Venice Commission mentions the danger of incoherent interpretation which would result in legal uncertainty. However, the provision does not seem to absolutely ban the Hungarian Constitutional Court or other courts from following its previous case law and applying coherent interpretation;92 it only prohibits a binding doctrine of stare decisis, which, according to the Venice Commission,93 had not even existed previously. In other words, the Hungarian Constitutional Court is as free to maintain its former case law and interpretation as before, always with a view to heed the interpretation rules given in Article 28 and Article R paragraph 3 of the Hungarian Fundamental Law, which latter provision even obliges courts to interpret the provisions of the Fundamental Law in accordance with the achievements of the historical constitution;94 the only difference is that it will not be allowed to consider itself formally bound to previous case law. As the Court was not bound by its former case law even previously and as most European jurisdictions do not provide for formal stare decisis, the critique on this point, in contrast to other issues falling under the 4th Amendment, is difficult to understand. As was shown before, inconsistent case law does not necessarily violate the rule of law.95 Courts are not bound to regard previous case law under all circumstances, irrespective of whether this case law was wrong, methodically unsound or otherwise inappropriate; however, they may also be expected to handle their own case law reasonably and to avoid arbitrary contradiction.96 While stare decisis may be required in systems with

91  This is a difference to Art 239 para 1 of the Polish Constitution which reads: ‘Within 2 years of the day on which the Constitution comes into force a judgment of the Constitutional Tribunal of the non-conformity to the Constitution of statutes adopted before its coming into force shall not be final and shall be required to be considered by the Sejm which may reject the judgment of the Constitutional Tribunal by a two-third majority vote in the presence of at least half of the statutory number of Deputies. The foregoing provision shall not concern judgments issued in response to questions of law submitted to the Constitutional Tribunal.’ Contrary to the view presented by the Venice Commission, it would appear that this provision was more problematic since the legal effect of a judgment could indeed be overruled to some degree. 92 See the Hungarian Constitutional Court’s case no 12/2013 on the constitutionality of the 4th Amendment; with further references, A Vincze, ‘Wrestling with Constitutionalism: Supermajority and the Hungarian Constitutional Court’ (2014) ICL Journal 94. 93  Venice Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law 22. 94  The Venice Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law 21 remarked that ‘while, over time, the Constitutional Court itself may be able to come to the same conclusions as in previous decisions, ordinary courts lack this essential point of reference with immediate effect.’ However, the contested provision does not hinder ordinary courts from coming to the same conclusions, particularly not when the Constitutional Court itself upheld its previous interpretation. 95  See above 88 ff. 96  An inconsistency is produced by the ECtHR as well as by the Venice Commission itself, when, on the one hand, the need for evolutive interpretation is emphasised (see above 88 ff), while on the other hand, ‘it is required that the courts, especially the highest courts, establish mechanisms to avoid conflicts and ensure the coherence of their case-law’, even if more flexibility might be drawn from ‘dictates of humanity and fairness’ (Venice Commission (n 2) 11), notwithstanding that ‘any constitutional court is free to deviate from its former decisions, provided it does so in a reasoned way’ (Venice ­Commission, Opinion on the 4th Amendment to the Hungarian Fundamental Law 21).

Legal Certainty 95 i­ ntegrated judicial review in order to establish coherent case law not only intra, but inter fora, it may also entail legislative intervention in order to overcome previous case law as well as highly sophisticated attempts to evade stare decisis claiming that a case was different—and this is perhaps not absolutely desirable.97

IV. CONCLUSIONS

Legal certainty is an extremely complex and versatile principle that embraces formal and substantive aspects. As a general principle, its juxtaposition with other principles inherent in European constitutionalism requires flexible balancing between them.98 Legal certainty may even disagree with the rule of law, to which it is normally affiliated, when it comes to the question whether res iudicatae may be reopened on account of their illegal nature. Legal certainty thus has no claims for absoluteness or rigidity.99 Even though this impression is raised in the European case law, it would hardly be adequate to characterise legal certainty, not just as a common, but a uniform European standard. Some degree of recognition of legal certainty is common to all Member States, though not necessarily in the form of a compact constitutional principle100 and hardly on an explicit basis101: often, only fragments of the principle are protected, at whatever legal level, while, in other cases, it is entrusted to the

97 

See also A D’Amato, ‘Legal Uncertainty’ (1983) 71 California Law Review 50. than 30 years ago, the ECJ (Joined Cases 205 to 215/82, Deutsche Milchkontor GmbH v Germany [1983] ECR 02633) held that all EU Member States sought to establish a balance between legal certainty and legality, where both principles were at odds with each other. 99  Similarly, Popelier (n 9) 52 ff who argues for a ‘dynamic concept of legal certainty’. 100  Some national systems are hostile to entrench explicit, but at the same time (almost inevitably) vague and indeterminate constitutional principles; see with regard to France, Arnauld (n 1) 559. 101  While the explicit entrenchment of the rule of law or human rights protecting legal certainty (see, eg, Art 29 Constitution of Albania, Art 9 Constitution of Andorra, Art 71 Constitution of ­Azerbaijan, Art 31 Constitution of Croatia, § 23 Constitution of Estonia, Sec 8 Constitution of Finland, Art 42 Constitution of Georgia, Art 103 Basic Law for the Federal Republic of Germany, Art 7 Constitution of Greece, Art XXVIII Fundamental Law of Hungary, Art 69 Constitution of Iceland, Art 25 Constitution of Italy, Sec 39 Constitution of Malta, Art 22 Constitution of Moldova, Art 20 Constitution of Monaco, Art 33 Constitution of Montenegro, Art 16 Constitution of Netherlands, Art 42 Constitution of Poland, Art 29 Constitution of Portugal, Art 15 Constitution of Romania, Art 54 Constitution of Russia, Art 34 Constitution of Serbia, Art 50 Constitution of Slovakia, Art 28 Constitution of Slovenia, Art 25 Constitution of Spain, Ch 2, Art 10 Instrument of Government of Sweden, Art 14 Constitution of Macedonia, Art 38 Constitution of Turkey, Art 58 Constitution of Ukraine) is common to European constitutions, only very few constitutions explicitly mention legal certainty in specific contexts (Art 282 para 4 Constitution of Portugal and Art 34 Constitution of Serbia; see, outside Europe, Art 231 para 4 Constitution of Angola and Art 27 para XIX Constitution of Mexico) or entrench legal certainty even as a general principle (Art 3 para 2 Constitution of Andorra and Art 9 para 3 Constitution of Spain). The two latter constitutions, however, enumerate legal certainty among several other principles that obviously overlap, such as the rule of law or non-retroactivity of restrictive rules; it is questionable whether this enriches a constitution or whether it rather raises doubt on content and delimitation of principles. 98  More

96  Anna Gamper courts to derive legal certainty from general constitutional principles such as the rule of law or human rights.102 Both antipodes—legal certainty and legal uncertainty—are cognisable throughout Europe. The ideal of recognisable and predictable law, on which individuals may build legitimate expectations, is an accepted European standard,103 entrenched under whatever name and in whatever kind of legal norm. Nevertheless, there are plenty of constitutional reasons to relativise the ideal: firstly, democracy basically requires that law can be changed in principle. Constitutional limits on this possibility may be more or less restrictive due to the nature of a written or unwritten,104 rigid or flexible constitution. Secondly, reasons for interfering with legal certainty lie in the rule of law itself, when illegal res iudicatae are concerned— something, whether summa iniuria or not, which is not even legitimate ius in terms of positive law. Much depends, moreover, on the clarity of legal language as to which European legal systems differ considerably; while some of them seek to tackle the problem adopting a strongly casuistic approach, through the entrenchment of legal definitions or explicit interpretation rules,105 others leave a wider margin of appreciation to courts. Where the power to determine the content of a norm is delegated or largely left to different interpreters, legal certainty will only be established as soon as the content has been fixed authoritatively; under flexible constitutions, moreover, legislative (including constitutional) amendments might interfere with legal certainty to a much wider degree. The transitory provisions of the new constitutions of Eastern European states usually sought to protect new constitutions by either quashing law enacted in previous periods106 or by providing for interpretation that strives to make the latter as compatible with the former as possible.107 Although international and supranational case law have confirmed legal certainty as ‘one of the fundamental aspects’108 or ‘basic elements’109 and as a ‘fundamental requirement’110 of the rule of law, this is only part of the picture: both the ECtHR and ECJ consider legal uncertainty as quite legitimate in specific constellations. Moreover, neither EU law nor the ECHR have yet reached the 102 

From a comparative perspective, Arnauld (n 1) 543 ff. Arnauld, ibid 625 f. 104  On parliamentary sovereignty in the UK, vis-à-vis legal certainty, Arnauld, ibid 611. 105  See, eg, R Carter, ‘Statutory Interpretation Using Legislated Examples: Bennion on Multiple Consumer Credit Agreements’ (2011) 32 Statute Law Review 86 ff. 106  This may even entail new challenges for legal certainty; see ECtHR in Beian v Romania (No 1) App no 30658/05 (ECtHR 6 December 2007) § 33: ‘However, where States decide to enact legislation to compensate victims of past injustices, it must be implemented with reasonable clarity and coherence in order to avoid, in so far as possible, legal uncertainty and ambiguity for the legal persons concerned.’ 107  With further references on the Polish experience, Arnauld (n 1) 612 ff. 108  Iordan Iordanov and Others v Bulgaria App no 23530/02 (ECtHR 2 July 2009) § 47. 109 See Beian v Romania (No 1) (n 106) § 39; Ştefănică and Others v Romania App no 38155/02 (ECtHR 2 November 2011) § 31. 110 Case C-58/12 P Groupe Gascogne v Commission [2013] § 87; Case C-50/12 P Kendrion v ­Commission [2013] § 98; Case C-40/12 P Gascogne Sack Deutschland GmbH v European Commission [2013] § 93. 103 

Legal Certainty 97 full dimension of a national constitution which needs to balance legal certainty against democracy, separation of powers or federalism—principles that at least to some degree allow for legislative amendments, overruling of judicial decisions or normative delegation. What could be done to improve legal certainty both at national and at European level, would be an even closer dialogue between courts (which could to some extent be improved by Protocol Number 16 to the ECHR), the explicit entrenchment of reasonable and precise interpretation rules ensuring more predictable interpretation as well as legislatures’ self-restraint with regard to legislative amendments and, ultimately, amendments to the constitution itself. However, absoluteness and rigidity of legal certainty is not desirable—also, but not just because it may help perpetuate summa iniuria. To some extent, therefore, a balance between legal ­certainty and uncertainty will be inevitable.111

111 

D’Amato (n 97) 55 predicts even an ‘inexorable’ increase in legal uncertainty.

6 The Principle of Proportionality PETER M HUBER

T

ODAY THE PRINCIPLE of proportionality is recognised as a general ­principle in every democratic society. It is considered an integral part of the rule of law, the Rechtsstaat,1 and according to the prevailing German doctrine also a concretion of the different fundamental rights themselves.2 Within the European legal space the principle of proportionality has binding effects on all public authorities—the legislature, the executive and the judiciary. Its most important objective is to contain state activities, true to the device of Immanuel Kant that law must always bind politics but politics must not contain the law.3 Against this background the principle of proportionality has become a powerful tool in the hands of lawyers and courts.

I.  HISTORIC ROOTS OF THE PRINCIPLE OF PROPORTIONALITY

A.  From Hamurabbi to Common Law The roots of the principle of proportionality lie deep in the past. One of them seems to be the so called lex talionis or the iustitia vindicativa which demanded ‘an eye for an eye and a tooth for a tooth’. Iustitia distributiva, going back to Aristotle, can be considered the second root of the principle; the idea that laws always have to serve a certain purpose and that there has to be a link between law and purpose. Different aspects of the principle can be found in Roman law and also in penal law of the middle ages.4 Against this background it seems quite

1  See BVerfGE 76, 256 (359); 80, 109 (119 f); 108, 129 (136); BVerfG, Decision of 19 November 2014—2 BvL 2/13, para 55. 2 J Kokott, ‘Grundrechtliche Schranken und Schrankenschranken’ in D Merten and HJ Papier (eds), Handbuch der Grundrechte in Deutschland und Europa, vol I (Heidelberg, CF Müller, 2004) § 22 para 98. 3  I Kant, Über ein vermeintes Recht aus Menschenliebe zu lügen, Werke in Zwölf Bänden, vol VII, (1797) 642: ‘Das Recht muss nie der Politik, wohl aber die Politik jederzeit dem Recht angepasst werden.’ 4  F Wieacker, Festschrift für Fischer (Berlin/New York, de Gruyter, 1979) 867, 874 f.

The Principle of Proportionality 99 ­ bvious that the p o ­ rinciple of proportionality belongs to the intellectual heritage of Western civilisation even if the term was not used or if there have been different terms to describe it. This, for example, has been the case in common law. If we take a look at William Blackstone’s fourth edition of his Commentaries on the Laws of England of 1899 we find a perfect description of proportionality when he stated: ‘Political or civil liberty, which is that of a member of society, is no other than natural liberty so far restraint by human laws (and no farther) as it is necessary and expedient for the general advantage of the public’.5

B.  Prussian Police Law of 1794 The modern understanding of the principle of proportionality and its technicality, however, goes back to the end of the eighteenth century and is closely related to Prussian Police Law. In 1791 Carl Gottlieb Svarez, a Prussian lawyer, reformer and father of the famous Allgemeines Landrecht für die Preußischen Staaten held that damage avoided by the limitation of freedom must weigh heavier than the disadvantages the individual has to suffer from the state measure in question. This demand was codified in § 10 II 17 PrALR of 1794 which described the task of the police as follows: ‘Die nöthigen Anstalten zur Erhaltung der öffentlichen Ruhe, Sicherheit, und Ordnung, und zur Abwendung der dem Publico, oder einzelnen Mitgliedern desselben, bevorstehenden Gefahr zu treffen, ist das Amt der Polizey.’6 This did not only concentrate the tasks of the police to the prevention of dangers for public safety and order7 but also restricted the exercise of this competence to measures necessary to reach the objective (‘nöthigen’). This concept was operationalised by administrative authorities and courts8 as well as by university scholars9 especially in the second half of the nineteenth century and under the constitution of Weimar (1919–1933), a time when administrative law mostly consisted of different types of police law.

5 

W Blackstone, Commentaries on the Laws of England 4th edn (Oxford, Clarendon Press, 1899) 115. It is the purpose of the police to make provisions, as necessary, for maintaining the public tranquility, safety and order as well as for prevention of imminent danger to the ‘publico’ or the members of the ‘publico’. 7 A von Bogdandy and PM Huber, ‘Staat, Verwaltung und Verwaltungsrecht: Deutschland’ in A von Bogdandy, S Cassese and PM Huber (eds), IPE, Vol III (Heidelberg, CF Müller, 2010) § 42 para 37 ff. 8  PrOVGE 13, 424 ff—illegitimate sale of liquor; 13, 426 ff—duty to lighten boundary posts. 9  O Bühler, Die subjektiven öffentlichen Rechte und ihr Schutz in der deutschen Verwaltungsrechtsprechung (Berlin, Kohlhammer, 1914) 179, 190 f. 6 

100  Peter M Huber II.  ADOPTION AND GENERALISATION IN GERMAN CONSTITUTIONAL LAW

One of the most important legal consequences Germany has drawn from the complete negation of the Rechtsstaat (rule of law)10 during the Nazi Regime is a strong determination to bind and restrict political power by legal means. After the Bavarian Constitution of 1946 had already stated that limitations of fundamental rights were only allowed if ‘absolutely necessary’ (‘zwingend erforderlich’), Article 98 sentence 2,11 the Basic Law—the federal Constitution of 1949—stated that all public authorities including parliament have to observe the fundamental rights laid down in the Constitution (Article 1(3) GG (Grundgesetz)) and that the legislature is bound by the constitutional order as a whole (Article 20(3) GG). Both requirements paved the way for what had later become known as the constitutionalisation of the legal order. From a retrospective point of view we can state today that the principle of proportionality has turned out to be the most important legal tool in this process as it has allowed courts to insert parliamentary legislation into the framework set up by fundamental rights and to balance advantages and disadvantages of a certain measure. Against this background it became possible to understand every statute as a limitation of interests protected by the different fundamental rights and to interpret them in light of constitutional requirements (verfassungskonforme Auslegung).

A.  Contributions of Scholars Immediately after the Basic Law had come into force on 23 May 1949, scholars began to reflect on the legal possibilities of containing the power of the state that had turned out to be so devastating during the Nazi regime and not surprisingly they began to think of proportionality as a suitable tool.12 Herbert Krüger,13 Günter Dürig,14 Rupprecht von Krauss15 and Peter Lerche16 were among the most influential German scholars in the 1950s who considered the p ­ rinciple of proportionality a consequence of the impact of the Constitution and of a

10  For differences between Rechtsstaat and rule of law see A Leisner-Egensperger, ‘Rechtsstaatlichkeit: Verfassungsprinzip zwischen Rechtstechnik und ethischer Dimension’ in BS Byrd, J Hruschka and JC Joerden (eds), (2013) 21 Annual Review of Law and Ethics 99, 106. 11  See BayVerfGHE 1 II 64, 76 ff; 1 II 81, 88 ff. 12  K Stern, ‘Zur Entstehung und Ableitung des Übermaßverbots’ in P Badura and R Scholz (eds), Festschrift für Peter Lerche (Munich, CH Beck, 1993) 165, 171. 13 H Krüger, ‘Die Einschränkung von Grundrechten nach dem Grundgesetz’ (1950) Deutsches ­Verwaltungsblatt 625, 628. 14  G Dürig, ‘Der Grundrechtssatz von der Menschenwürde’ (1956) 81 Archiv des öffentlichen Rechts 117, 146. 15  R von Krauss, Der Grundsatz der Verhältnismäßigkeit (Hamburg, Appel, 1955) 19, 25 ff, 51. 16  P Lerche, Übermaß und Verfassungsrecht (Cologne, Carl Heymanns, 1961) 61 ff, 134 ff.

The Principle of Proportionality 101 modern ­understanding of the rule of law (Rechtsstaatsverständnis) which had to be observed in all areas of law affecting fundamental rights.

B.  Jurisprudence of the Federal Constitutional Court i.  The Beginning in the 1950s The principle of proportionality was mentioned in the jurisprudence of the ­Federal Constitutional Court for the first time in 1954 when the Court had to decide whether a statute on the elections of a Landtag (parliament on the level of the Länder) requiring a political party not represented in parliament to obtain a certain number of supporters’ signatures (§ 20(2) sentence 2 LWahlG NW 1954) was in conformity with the Basic Law. The Court held that the requirement in question was a suitable instrument to avoid excessive fragmentation and that it did not exceed the limits between the objective and the remedy applied as set up by the principle of proportionality. Within these boundaries the legislator would be free unless additional provisions of the constitution were applicable.17 A similar case which dealt with an interdiction to hand over journals promoting nudism to minors was decided in March 1958 when the Federal Constitutional Court (FCC) held that this ban limited parents’ rights to educate their children ‘more than necessary’.18 Though this transfer of the principle from police law to the level of the constitution was under a legal perspective something extraordinary, the decision passed more or less unnoticed by the public and the majority of lawyers. At that time—nine years after the war, five years after the Basic Law had come into force and three years after the Federal Constitutional Court had been established—­ people were still too busy making existential decisions for the newly reorganised state as well as for their private lives. This changed completely when the First Senate of the Federal Constitutional Court issued his famous Apothekenurteil on 11 June 1958. A chemist had moved from East Germany to Bavaria and wanted to open a new pharmacy in the village of Traunstein. The Bavarian statute on pharmacies, however, required a licence which could only be achieved if authorities decided that there was a need for a new pharmacy. The Federal Constitutional Court considered this requirement a violation of the freedom of profession laid down in Article 12(1) GG. It developed a theory that identified three grades of limitations of the freedom of profession and corresponding reasons of public interest as justifications. Requirements dealing with the exercise of a certain profession (Berufsausübungsbeschränkungen) were identified as the lightest limitation of the freedom of profession. Such a limitation was therefore considered in conformity with Article 12(1) GG if the legislator

17  18 

BVerfGE 3, 383, 399. BVerfGE 7, 320, 326.

102  Peter M Huber was able to name reasonable grounds. Limitations of the freedom of profession depending on education, degrees and so on (subjektive Berufsausübungsschranken) were considered a second category of limitations. On the one hand they prevented everybody without the required degree from exercising the profession in question but gave access to the profession to everybody who passed the thresholds. As these limitations are obviously harder than those of the first category they were considered constitutional only if the legislator was able to name sufficiently important public interests. Limitations not influenceable by the individual such as curtailments of licences, state monopolies and so on make up the third category (objektive Berufsausübungsschranken) and are considered the most severe interference with the freedom of profession. The court therefore held that the legislator is only entitled to set up such limitations if he can name overwhelmingly important reasons of common welfare. This theory has become famous as the Drei-StufenTheorie (theory of three grades). The principle of proportionality is mentioned only once in this very important decision and only under a very narrow aspect: when dealing with limitations of the second category the court says that the subject-specific requirements for an exam or a degree may not be out of proportion. It did at the time, however, not realise that the Drei-Stufen-Theorie as a whole was nothing else but a concretisation of the principle of proportionality. This finding was left to subsequent decisions and to academia. ii.  Generalisation in the 1960s and 1970s In the 1960s and 1970s we see a generalisation of the principle of proportionality in the jurisprudence of the Federal Constitutional Court. In a first period—from the early 1950s to the early 1970s—fundamental rights were almost exclusively understood as entitlements within bipolar relationships between citizens and the state. Following that rather traditional liberal approach the court concentrated on the control of the suitability and the necessity of legal restrictions to fundamental rights but shied away from controlling the balancing of interests, known as proportionality in a narrow sense.19 For example, it declared the ­requirement that everybody who wanted to run a grocer’s shop had to prove his or her specific knowledge for the business by passing a test (Sachkundenachweis) unproportional20 but accepted the ban on new mills because there were too many mills on the market at the time.21 It held that it was unnecessary to completely ban Easter rabbits made of puffed rice and an icing of chocolate which could be mistaken for Easter rabbits made of pure chocolate, because providing sufficient information for the consumers should be enough.22 A last example of the 19 

N Petersen, Verhältnismäßigkeit als Rationalitätskontrolle (Tübingen, Mohr Siebeck, 2015) 138 ff. BVerfGE 19, 330, 340. 21  BVerfGE 25, 1, 12 f. 22  BVerfGE 53, 153, 146. 20 

The Principle of Proportionality 103 j­ urisprudence of this period might be the decision dealing with the licence to hunt with falcons (Falkenjagd). The law in question required knowledge of guns and other weapons although they are obviously of no use for the activity in question. The legal requirement was therefore considered unsuitable.23 Since the end of the 1970s the focus of the FCC’s control has shifted to the control of a balancing of interests by the legislator, that is, to proportionality in a narrower sense.24 The reason for this shift was not so much an arbitrary determination of the justices to subject legislation to a closer scrutiny as it was the insight that almost every law has to find a balance between conflicting interests, all of them protected by fundamental rights laid down in the constitution. Though this balancing can already be detected in the famous Lüth decision of 1958 which laid the grounds for the general understanding of fundamental rights under the Basic Law,25 it was not before environmental and disarmament issues came up in the late 1970s that it was generally recognised that fundamental rights issues were mostly issues of balancing conflicting interests protected by the constitution within multipolar legal relationships (owner of a nuclear plant—state—­ neighbour; airport—state—neighbour, and so on). iii.  Extension to the Equal Protection Clause In the late 1980s the FCC, which so far had considered the equal protection clause only as an interdiction of arbitrary action, began to apply some aspects of the principle of proportionality also to Article 3 GG. The nearer the circumstances of a case to unalienable aspects of a personality (see Article 3(3) GG), the closer the link to fundamental freedoms, the higher are the requirements to justify a distinction between two cases. If the legislator has made such a distinction it is necessary to check whether there are differences of such nature and weight that they can justify the distinction.26 In January 2014 the First Senate ruled that: [T]he general principle of equality of Article 3, Section 1 of the Basic Law requires the legislature to treat similar cases equally, and different cases differently. It applies to unequal burdens as well as unequal benefits but doesn’t deny legislature every differentiation. Differentiations, however, require a justification by substantive reasons which balance the objective of the law at stake and the degree of inequality. With regard to these constitutional requirements, depending on the subject matter and differentiation characteristics, different limits for the legislature arise which can range from the prohibition of arbitrariness to strict proportionality requirements.27

23 

BVerfGE 55, 159, 165. Petersen (n 19) 141 ff. 25  BVerfGE 7, 198 ff—Lüth. 26  BVerfGE 55, 72, 88; 98, 365, 385; 117, 1, 30; 124, 199, 220; 126, 400, 416; 129, 49, 68; 130, 240, 252 ff; for an earlier approach in Austria see E Wiederin, ‘Grundlagen und Grundzüge staatlichen ­Verfassungsrechts: Österreich’ in A von Bogdandy, P Cruz Villalón and PM Huber (eds), IPE, Vol I (Heidelberg, CF Müller, 2007) § 7 para 118. 27  BVerfGE 135, 126, 153 f, para 52. 24 

104  Peter M Huber One of the practical consequences of this third period in the historic career of the principle of proportionality under the Basic Law28 is a strict judicial control of legislative discretion. This can among others be observed in the field of electoral legislation where the principle of ‘one man, one vote’ has to be interpreted strictly and can only be modified if there are conflicting issues of constitutional rank with at least the same weight. Concerning the five29 and three per cent threshold30 for European elections laid down in the national law on European elections the FCC has held that the legislator had not proven reasons of constitutional rank to justify why 10 per cent of the voters31 should be left out of consideration.

III.  ACKNOWLEDGEMENT IN THE JURISPRUDENCE OF INTERNATIONAL COURTS AND OTHER COUNTRIES

Since the world has seen the triumph of the principle of proportionality it has been recognised by: (A) the European Court of Human Rights (ECtHR); (B) the European Court of Justice (ECJ); and (C) by Constitutional and Supreme Courts all over the world.

A.  European Court of Human Rights Article 8(2), Article 9(2), Article 10(2) or Article 11(2) ECHR allow an interference of a public authority with those human rights inter alia only if they are ‘necessary in a democratic society’.32 For a long time these provisions have been understood to entail the principle of proportionality; in the more recent past they have even been regarded as a codification of the principle itself.33 Article 2(2), Article 6(1) sentence 2 and Article 1 first Protocol can also be understood as rules concretising at least some aspects of proportionality.34 Although the way the principle of proportionality is adjudicated by the ECtHR has been strongly influenced by German doctrine and jurisprudence, its

28 

See BVerfGE 88, 87, 96; 99, 367, 388. BVerfGE 129, 300 ff. 30  BVerfGE 135, 259 ff. 31  BVerfGE 129, 300, 320. 32  ECHR, 26.05.1994, NJW 1995, 2153—Keegan v Ireland, the state’s margin of appreciation; ECHR, 29.04.1999, 25088/94—Chassagnou v France, the court defines the characteristics of a democratic society. Proportionality as required by Art 8 entails procedural guarantees as well: ECHR, 27.05.2004, 66746/01—Connors v UK, duty to give reason. 33  ECHR, 25.02.1993, 10828/84—Funke v France, para 55 ff; 25.02.1997, 22009/93—Z v Finland, para 94; C Grabenwarter and K Pabel, Europäische Menschenrechtskonvention 5th edn (Munich, CH Beck, 2012) § 18 para 15. 34  ECtHR, 28.05.1985, 8225/78—Ashingdane v United Kingdom, A 93, para 57; A Nußberger, Das Verhältnismäßigkeitsprinzip als Strukturprinzip richterlichen Entscheidens in Europa (Neue Zeitschrift für Verwaltungsrecht-Beilage, 2013) 36, 39 f. 29 

The Principle of Proportionality 105 e­ xamination differs in detail. Neither the suitability of a limitation nor its necessity play a major role in the case law of the ECtHR; they are rarely mentioned and examined only in exceptional cases. The core of the test of justification is rather proportionality in the narrow sense. In addition, the ECtHR does not contain an absolute protection of the essence of any fundamental right, comparable to the core guarantee laid down in Article 19(2) GG (‘Wesensgehaltsgarantie’).

B.  European Court of Justice As far as EU law is concerned, the principle of proportionality is explicitly laid down in Article 5(4) Treaty on European Union (TEU).35 Measures of the EU institutions must not go beyond what is necessary to achieve the objectives of the Treaty thereafter. This guarantee entails two dimensions: the classical dimension limiting the limitation of fundamental rights and freedoms and a competencerelated dimension shaping the principle of conferral. In its ‘classical’ dimension the principle of proportionality—again derived from German roots—has been applied by the ECJ in many different ways. It has been applied to measures of EU institutions36 and Member States and has turned out to be a quite stringent instrument of control especially as far as limitations of fundamental freedoms by the Member States are concerned.37 Not of lesser importance is the competence-related dimension of the principle of proportionality.38

35  H Lecheler, ‘Allgemeine Grundsätze des Unionsrechts’ in D Merten and H-J Papier (eds), Handbuch der Grundrechte, vol VI/1 (Heidelberg, CF Müller, 2010) § 158 para 29 ff. 36  Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 03727; Case C-68/95 T Port GmbH & Co KG v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-06065; Case C-331/88 The Queen v Fedesa et al [1990] ECR I-04023; Case C-280/93 Germany v Council (banana regulation) [1994] ECR I-04973 [78 ff, 88 ff]; Case C-210/03 Swedish Match v SoS for Health [2004] ECR I-11893; Case C-310/04 Spain v Council (Cotton support scheme) [2006] ECR I-07285; Joint Cases C-92/09 and C-93/09 Schecke und Eifert v Land Hessen [2010] ECR I-11063 [65 ff]; Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and others [2014] ECR not yet published [45 ff] with additional references. 37  Case 8/74 Dassonville [1974] ECR 837 [5]; Case 104/75 Adriaan de Peijper [1976] ECR 613; Case C-120/78 Cassis de Dijon [1979] ECR 649; Case C-55/94 Gebhard [1995] ECR I-4165; Case C-384/93 Alpine Investments [1995] ECR I-1141; Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633 [59–61]; Case C-390/12 Pfleger [2014] ECR not yet published; V Trstenjak and E Beysen, ‘Das Prinzip der Verhältnismäßigkeit in der Unionsrechtsordnung’ (2012) 47 Europarecht 265, 276. 38 Trstenjak and Beysen, ibid 266 ff. Accepted as a principle in the ECJ’s jurisprudence pre-­Maastricht, see eg Case C-15/83 Denkavit Nederland [1984] ECR 2171. In general, there is a wide margin of appreciation, especially in cases that are economically or socially complex; the test is for ‘manifest disproportionality’; Case C-233/94 Germany v European Parliament and Council [1997] ECR I-2405; Case C-84/94 United Kingdom v Council [1996] ECR I-5755 [58 ff]. In favour of a more rigorous approach AG Maduro in Case C-58/08 Vodafone [2010] ECR I-4999 [27–36]; ultimately to no avail: [68 ff].

106  Peter M Huber C.  Other National Legal Orders In the course of time the principle of proportionality has become recognised as a universal principle of a democratic society.39 Via the jurisprudence of the ECtHR and the ECJ it found its way into the legal order of almost every European state40 but it has also been adopted by overseas courts such as the Supreme Court of Canada41 or the Constitutional Court of South Africa.42

IV.  FIVE ELEMENTS OF THE PROPORTIONALITY TEST

In theory it is possible to distinguish four or five elements of the proportionality test: there has to be a legitimate objective that the measure in question is meant to achieve (first element); the means chosen must be suitable in this respect (second element); it must not burden the individual more than necessary (third element); and it has to be appropriate (fourth element). Finally, it has to be made sure that the limitation of the fundamental right by the measure at stake does not violate the core of the guarantee (Wesensgehaltsgarantie) (fifth element).43 These elements are scarcely codified explicitly in constitutional documents but there are some exceptions: Article 5(4) TEU, Article 36 BV (Swiss Constitution) or Article 19(2) GG, in which the fifth element is laid down.44 As far as court practice is concerned it can be stated that courts rarely deal with all five elements in a single case. They normally tend to concentrate on the question of necessity (third element), and sometimes on the appropriateness of the measure in question (fourth element). The suitability of a measure (second element), however, is a matter of concern only exceptionally whereas courts tend to neglect the legitimate objective (first element) as well as the core guarantee (fifth element) completely. This observation can not only be made for the jurisprudence

39 

For international law E Vranes, ‘Der Verhältnismäßigkeitsgrundsatz’ (2009) 47 ArchVölkerR 1 ff. Italy: M Dogliani and C Pinelli, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Italien’ § 5 para 109 ff; Netherlands: L Besselink, ‘Grundlagen und Grundzüge staatlichen ­Verfassungsrechts: Niederlande’ § 6 para 156; Austria: E Wiederin, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Österreich’ § 7 para 63, 118 f; Switzerland: G Biaggini, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Schweiz’ § 10 para 65; MM Guerrero, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Spanien’ § 11 para 61; Hungary: G Halmai, ‘Gundlagen und Grundzüge staatlichen Verfassungsrechts: Ungarn’ § 12 para 48 f (all the above in Bogdandy, Cruz Villalón and Huber (n 26)); Spain: STC 160/1987, FJ6; STC 55/1996, FJ3. 41  R v Oakes [1986] 1 SCR 103; Petersen (n 19) 247 ff. 42  S v Makwanyane and Another CCT 3/94 [1995], ZACC3 [104]; Petersen (n 19) 221 ff. 43  G Biaggini, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Schweiz’ in Bogdandy, Cruz Villalón and Huber (n 26) § 10 para 65; G Halmai, ‘Grundlagen und Grundzüge staatlichen ­Verfassungsrechts: Ungarn’ in Bogdandy, Cruz Villalón and Huber (n 26) § 12 para 48. 44 For the links between proportionality and Wesensgehaltsgarantie see PM Huber, in H von Mangoldt, F Klein and C Starck (eds), GG, vol I, 6th edn. (München, Vahlen, 2010) Art 19 Abs 2, para 136 ff, 151 ff. 40 

The Principle of Proportionality 107 of the Federal Constitutional Court45 but also for European courts46 and for other constitutional or supreme courts.

V.  THREE DIFFERENT DIMENSIONS OF PROPORTIONALITY

The binding effect of the principle of proportionality and its ‘steering potential’ depend on the legal framework in which it has to be applied. As the principle of proportionality has to fulfil different functions it seems obvious that its impact might differ if applied to the limitation of individual rights in order to safeguard public interests or to conflicts of individual interests such as employers and employees, landlords and tenants, husbands and wives and so forth, or if it is just used to clarify the distribution of competences in a multi-level system.

A.  Bipolar Legal Relationships between Individuals and the State According to the traditional approach the binding effect of the principle of proportionality is the strongest if applied to (bipolar) legal relationships between the individual and the state. In this respect proportionality is a ‘counter limitation’ of fundamental rights and freedoms (Schrankenschranke) limiting the limitation of interests which goes along with the measure in question.47 As fundamental rights and freedoms in principle aim at safeguarding individual interests from the interference of public authorities, proportionality becomes an instrument to measure the extent of the interference, the legitimacy of public interests and to balance them. In addition the extent of a measure’s interference with fundamental rights and proportionality also allows courts to orientate themselves as far as their scrutiny is concerned.48

B.  Multipolar Legal Relationships Things are different, however, if interests of citizens protected by fundamental rights collide. As fundamental rights primarily protect the individual from intrusions by public authorities—this is laid down in Article 1(3) GG49 and more or less the same applies to human rights under the European Convention on Human Rights (ECHR) or fundamental rights and freedoms under the Treaty on the

45 

Petersen (n 19) 138 ff. For the ECJ see H Lecheler (n 35) § 158 para 30 f. J Kokott (n 2) § 22 para 98 ff. 48  See BVerfGE 50, 290, 332 f; 88, 87, 96; 99, 367, 388 ff. 49  BVerfGE 7, 198, 205; 25, 256, 263; 42, 143, 148; 73, 261 ff. 46  47 

108  Peter M Huber Functioning of the European Union (TFEU)50—it is obvious that different rules apply if the state or a public authority has to balance colliding interests. Though this doctrine is contested by some scholars51 it remains convincing because it takes into account that in a bipolar setting public authorities act as the intruder whereas in a multipolar situation with colliding rights and interests of different citizens, public authorities rather act as a referee.52 That the proportionality test with its five elements doesn’t fit in this situation can be shown by two simple reflections: if, for example, fundamental rights of a landlord and a tenant collide, in which respect could a limitation of the interests at stake be ‘suitable’, and to what extent would that limitation be ‘necessary’? Against this background proportionality in a multipolar setting does not work as a counter-limitation of intrusions of public authorities into individual rights but as an obligation of the state—especially the legislator and the judge—to balance colliding interests in such a way that intrusions into all interests at stake remain as small as possible. In this process of cautious balancing, to realise what Germans call praktische Konkordanz,53 the principle of proportionality changes its nature and becomes a standard of a rudimentary adequacy (Angemessenheits-Verhältnismäßigkeit).54

C.  Competence Related Dimension The third dimension in which the principle of proportionality plays a role is the distribution of competences in a multi-level system. So far, it can be regarded as an established figure in the law of the European Union and there are at least some smaller traces in German constitutional law. i.  European Union (Article 5(4) TEU) Article 5(4) TEU states that under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. 50  For differentiations see Case 36/74 Walrave and Koch [1974] ECR 1405 [17]; Case 13/76 Donà [1976] ECR 1333 [17]; Case C-415/93 Bosman [1995] ECR I-4921 [82]; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549 [47]; Case C-281/98 Angonese [2000] ECR I-4139 [31]; Case C-309/99 Wouters and others [2002] ECR I-1577 [120]; Case C-112/00 Schmidberger [2003] ECR I-5659 [74]; Case C-438/05 Viking [2007] ECR I-10779; Case C-341/05 Laval [2007] ECR I-11767; PM Huber, ‘Zur Drittwirkung von Grundrechten und Grundfreiheiten’ in M. Ruffert, FS für Meinhard Schröder (Berlin, Duncker & Humblot, 2012) 335, 336 ff. 51  ‘Europas Juristen-Elite diskutiert über Finanzregulierung und Grundrechte’ (2011) Lëtzebuerger Journal; PM Huber (n 50) 336. 52  PM Huber (n 50). 53  K Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 20th edn (Heidelberg, CF Müller, 1995) para 332. 54 EW Böckenförde, Zur Lage der Grundrechtsdogmatik nach 40 Jahren Grundgesetz (Munich, Siemens Stiftung, 1989) 53.

The Principle of Proportionality 109 The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. In theory the principle of proportionality could therefore be an important instrument which limits the competences of the EU and shapes the principle of conferral (Article 5(1) sentence 1 TEU).55 It has repeatedly been quoted in the jurisprudence of the Luxemburg Court56 and in several opinions of different advocate generals.57 Unfortunately, Article 5(4) TEU has remained to be law in the books so far. All debates about the different elements of the proportionality test remain in vain as long as the Court of Justice sticks to the low level of scrutiny it has practised so far, which means that it will accept any decision of European institutions and organs as long as they are not evidently unsuitable, evidently beyond the necessary infringement of Member States’ competences or evidently inappropriate.58 This has never been the case so far and it is quite unlikely that this will change in the foreseeable future. After all, the principle of proportionality does not effectively contribute to a reasonable balance between the different levels of the European Union. ii.  Germany (Article 28(2) GG) The fact that the principle of proportionality does not really contribute to an ­effective balance of competences in a multi-level system does not come as a surprise to a German lawyer. Though there have been proposals to recognise proportionality as a relevant principle in the legal relationships between the federation and the states as well59 the idea has constantly been turned down.60 One exception has been made so far concerning the autonomy of local communities laid down in Article 28(2) GG. Though the roots of this guarantee lie in the middle ages it has primarily been shaped in the nineteenth century and was then considered a fundamental right comparable to the freedom of association or the freedom of assembly. Therefore the Constitutions of 1849 (§ 184 lit b RV 1849) and 1919 (Article 127 WRV 1919) put the guarantee of local autonomy among the fundamental rights, an idea which is still upheld under the Bavarian Constitution of 1946 (Article 11 Bavarian Constitution). The Basic Law has broken with this tradition however. Today Article 28(2) GG is considered an instrument of government in a democratic society. Nevertheless the line of tradition mentioned above

55 

Trstenjak and Beysen (n 37) 266 ff. more references: Trstenjak and Beysen (n 37); R Streinz (ed), EUV/AEUV, Commentary, 2nd edn (Munich, CH Beck, 2012) Art 5 para 48. 57 Opinion of the Advocate General Cruz Villalón of 14 January 2015(1)—Case C62/14 Peter Gauweiler and others [159 ff]. 58  Streinz (n 56) Art 5 para 48; Trstenjak and Beysen (n 37) 274. 59  A Heusch, Der Grundsatz der Verhältnismäßigkeit im Staatsorganisationsrecht (Berlin, Duncker & Humblot, 2003) 63 ff. 60  D Hanschel, Konfliktlösung im Bundesstaat (Tübingen, Mohr Siebeck, 2012) 204. 56  For

110  Peter M Huber has helped to apply the principle of proportionality in cases in which the state— the legislator—takes competences away from local communities. For example, in November 2014 the Federal Constitutional Court has therefore considered a law of the state of Saxony a violation of Article 28(2) GG which had taken the competence to provide for elementary schools away from local communities and had handed it over to the districts. It held: Intrusions into the competences guaranteed by article 28 par 2 sentence 1 GG are subject to the requirements of the principle of proportionality, which is embodied by the rule of law … and can become relevant where public authorities are equipped with rights against the State. This is the case as far as the autonomy of local communities is concerned.61

VI. PROBLEMS

Though the principle of proportionality has been elaborated over several centuries, though the range of its application and its structure have been clarified and though it has proven an effective tool in millions of cases, there are still more questions open than answered.

A.  Standard of Scrutiny and Counter-majoritarian Difficulty Whenever a court decides that a law or a regulation does not follow a legitimate objective or that the measures foreseen in the law are not suitable, that they burden the individual more than necessary or are not appropriate, it counteracts a decision the democratically legitimised legislature has taken. This has led the Federal Constitutional Court to develop a differentiated standard of judicial control. As far as freedom rights are concerned the intensity of the court’s control therefore (mostly) orientates itself towards the intensity of the infringement:62 the standard of control for laws that affect guarantees of fundamental freedom rights only in a superficial way is evidence (Evidenzkontrolle); laws that affect the guarantees more deeply are controlled according to a standard of reasonableness (Vertretbarkeitskontrolle), whereas laws that make the use of the freedom right almost impossible are controlled in a strict sense (strenge inhaltliche Kontrolle) with only little scope of appreciation for the legislature. In the 1990s these differentiated standards of judicial control have also been transferred to the equal protection clause. With regard to Article 3 GG the ­standard

61  BVerfG, Decision 19.11.2014—2 BvL 2/13, para 55 citing BVerfGE 79, 127, 143, 154; 103, 332, 367; 119, 331, 363; 125, 141, 167 f; BbgVerfG, LVerfGE 11, 99, 111; VerfGH NRW, OVGE 46, 295, 310; VerfG LSA, LVerfGE 17, 437, 446; NdsStGH, OVGE 50, 497, 506 f. 62  See BVerfGE 50, 290, 332 f.

The Principle of Proportionality 111 of judicial control may reach from arbitrariness (Willkürkontrolle) as the lowest standard to reasonableness or even a strict control whenever criteria that the individual cannot dispose of are at stake such as sex, race, origin, religion, descent and so on (see Article 3(2) and (3) GG).63 This is not far away from those differentiations the US Supreme Court has developed.64 Nevertheless, the narrower the judicial control, the smaller the scope of decision-making for parliament and the higher the counter-majoritarian difficulty. It has therefore been proposed that courts should skip the element of appropriateness in order to (re-)enlarge the scope of political decision-making. In my view this proposal is not convincing as it ignores the dichotomy that exists between the principle of democracy which indeed is affected by a judicial control of the legislature and the rule of law which explicitly intends counter-majoritarian difficulties. In a modern state the constitution has to guarantee both: an effective democratic decision-making according to the majority will and an effective protection of individuals and minorities against the dangers of a mere majority rule. This is also the lesson the mothers and fathers of the Basic Law have taken from history when they settled the antagonism between democracy and the rule of law in Article 1(3) and 20(1)-(3) GG.

B.  Open Questions Against this background there are still some black boxes within the principle of proportionality that are yet to be enlightened. One of them is the problem of cumulative or additive infringements of freedom rights. If courts only look at the individual measure at stake—let’s say in the area of taxes—they will not get the whole picture and they will lack an instrument with which they can decide whether an accumulation of infringements is still suitable, necessary and appropriate even if this was the case for each single infringement.65

63 

See BVerfGE 88, 87, 96; 99, 367, 388 f. Roe v Wade, 410 US 113, 155 (1973); Whalen v Roe, 429 US 589, 597 f (1977); C Simons, Grundrechte und Gestaltungsspielraum (Berlin, Duncker & Humblot, 1999) 84 ff. 65  BVerfGE 93, 121, 137 f; 98, 83, 101 ff; 98, 106, 121; 112, 304, 320 f—GPS; 114, 196, 247—BSSGU; Di Fabio, ‘Das Kooperationsprinzip—ein allgemeiner Rechtsgrundsatz des Umweltrechts’ (1999) 11 Neue Zeitschrift für Verwaltungsrecht 1153; PM Huber, ‘Selbstverwaltung und Systemgerechtigkeit. Zu den Grenzen einer “Professionalisierung” der Leitungsstrukturen Kassenärztlicher Vereinigungen’ (2000) 5 Vierteljahresschrift für Sozialrecht 369 (386 ff); PM Huber, ‘Umweltschutz als Ausprägung von Sozialgebundenheit’ in Politische Studien, Sonderheft (1/2000) 45 (58); G Kirchhof, ‘Kumulative Belastung durch unterschiedliche staatliche Maßnahmen’ (2006) 11 Neue Juristische Wochenschrift 732; M Kloepfer, ‘Belastungskumulationen durch Normenüberlagerungen im Abwasserrecht’ (1983) 74 Verwaltungsarcivh 201 ff; J Lücke, ‘Der additive Grundrechtseingriff sowie das Verbot der übermäßigen Gesamtbelastung des Bürgers’ (2001) 19 Deutsches Verwaltungsblatt 1469 ff. 64 

112  Peter M Huber A second problem has to do especially with the jurisprudence of the ECJ. In this jurisprudence the principle of proportionality is treated like an isolated ­principle without any necessary link to the guarantees of fundamental rights, the equal protection clause and others. This leads to the effect that there is no orientation for what is necessary or appropriate because these elements can rationally only be applied if one can name the ‘price’ that has to be paid.66 In other words: without knowing how deeply a measure in question affects a constitutional guarantee it is impossible to say that it is necessary or appropriate. This is perhaps one reason why the judicial control of EU institutions is still deficient.67

66 

General aspects E Vranes, Der Verhältnismäßigkeitsgrundsatz’ (2009) 47 ArchVölkerR 1, 27 ff. PM Huber, Recht der Europäischen Integration 2nd edn (Munich, Verlag Vahlen, 2002) § 8 para 71; more positive Joined Cases C-92/09 and C-93/09 Schecke und Eifert [2010] ECR I-11063 [65 ff]; Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and others [2014] [45 ff]. 67 

Part III

Council of Europe and European Union—Different Concepts of the Rule of Law?

114

7 The Council of Europe and the Rule of Law JÖRG POLAKIEWICZ AND JENNY SANDVIG1

I. INTRODUCTION

T

HE COUNCIL OF Europe is founded on the rule of law as one of three core principles. This transpires from the preamble of the Statute of the Council of Europe (ETS No 001) and the requirements for membership in its Article 3.2 According to this provision, respecting the rule of law is a precondition for accession of new Member States to the Organisation. If a Member State seriously violates the respect of the rule of law, Article 8 of the Statute provides that it may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw. In light of the extensive discussions the notion rule of law has given rise to, it is all the more interesting to see that the notion emerged in the statutory document of the organisation rather seamlessly. The minutes from the Preparatory Conference for the establishment of the Council of Europe in 1949 reveal that the references to the rule of law in the statutory text were adopted without discussion.3 The 10 founding states of the Council of Europe all agreed on the importance of the rule of law as a fundamental value and steering principle for future work of the organisation.

1  Jörg Polakiewicz is Professor at the Europa-Institut of the University of Saarbrücken and Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe. Jenny Sandvig, Master of Laws from the University of Oslo, is Attorney at the Norwegian Attorney General’s Office— Civil Affairs (on leave) and was an intern at the Directorate of Legal Advice and Public International Law, Council of Europe. This contribution was written in a strictly personal capacity and does not necessarily reflect the official position of the Council of Europe. 2  Statute of the Council of Europe, ETS No 001, London, 5 May 1949. 3  CE (Prep) M 5th Meeting Final, 6 April 1949, point 5 (c): ‘It was generally agreed that the principles of “closer unity”, “individual liberties”, “the rule of law”, “fundamental human rights”, “dignity and worth of the human person” and “common political institutions” should be included’. CE (Prep) M, 8th meeting Final, 12 April 1949, Minutes from the Preparatory Conference for the establishment of the Council of Europe, St James’ Palace, London, 3–5 May 1949, 5–6.

116  Jörg Polakiewicz and Jenny Sandvig Since then, the Council of Europe has referred systematically to the rule of law in major political documents and in numerous legal instruments. First and foremost, reference to the rule of law is made in the European Convention on Human Rights (ECHR). Its preamble famously places the rule of law as an indispensable part of ‘the common heritage’ of the European countries. The European Court of Human Rights (ECtHR) has come to regard the rule of law as a principle inherent in the whole Convention.4 ECtHR case law provides important guidance on the content of the principle, as it has been interpreted and applied under rule of lawrelated provisions such as Articles 6, 7 and 13 of the Convention.5 Other important documents referring to the rule of law include the Vienna Declaration (1993), Strasbourg Final Declaration and Action Plan (1997) and the Warsaw Declaration (2005). In the Warsaw Declaration, the Heads of State and Governments committed ‘to strengthening the rule of law throughout the continent, building on the standard setting potential of the Council of Europe and on its contribution to the development of international law’. In this respect, they stressed ‘the role of an independent and efficient judiciary in the member states’ and agreed to ‘further develop legal cooperation within the Council of Europe with a view to better protecting our citizens and to realising on a continental scale the aims enshrined in its Statute’. The Committee of Ministers’ recommendation CM/Rec(2007)7 to

4  Engel and others v The Netherlands Series A no 22 (1976) para 69; Amuur v France App no 19776/92 (ECHR 1996-III) para 50. 5  Rule of law related ECtHR case law can be categorised as follows: (A) Separation of powers (see, inter alia: Stafford v United Kingdom [GC] App no 46295/99 (ECHR 2002-IV) para 78; Beaumartin v France App no 15287/89 Series A no 296-B (1994) para 38; Öcalan v Turkey [GC] App no 46221/99 (ECHR 2005-IV) paras 112–16); (B) Role of the judiciary (see, inter alia, De Haes and Gijsels v Belgium App no 19983/92 (EHRR 1997-I) para 37); (C) Impunity (Hugh Jordan v United Kingdom App no 24746/94 (ECHR 2001) para 108; Okkali v Turkey App no 52067/99 (ECHR 2006-XII) para 65); (D) Tribunal established by law (Lavents v Latvia App no 58442/00, para 81); (E) Sufficiently accessible and foreseeable law (Sunday Times v United Kingdom (No 1) App no 6538/74 Series A no 30 (1979), para 49; (F) Scope of legal discretion (Malone v United Kingdom App no 8691/79 Series A no 82 (1984), para 68; (G) nullum crimen sine lege and nulla poena sine lege (Art 7 ECHR); (H) Legal certainty (Broniowski v Poland App no 31443/96 (ECHR 2004-V) para 184; Brumarescu v Romania [GC] App no 28342/95 (ECHR 1999-VII) para 61); (I) Execution of final domestic judgments (Taskin and others v Turkey App no 46117/99 (ECHR 2004-X) para 136); (J) Equality before the law (Arts 1 and 14 ECHR, Art 1 of Protocol no 12 of the ECHR); (K) Judicial control of the executive (Dumitru Popescu v Romania (No 2) App no 71525/01 [26 April 2007], para 76; Sissanis v Romania App no 23468/02 [25 January 2007], para 71; (L) Positive obligations of the state in the form of procedural requirements and safeguards (Tysiac v Poland App no 5410/03 (ECHR 2007-I) paras 112 and 117); (M) Right of access to a court (Golder v United Kingdom App no 4451/70 Series A no 18 (1975), para 35; Bellet v France App no 23805/94 Series A 333-B (1995), para 36; Airey v Ireland App no 6289/73 Series A 32 (1979), para 26; Stankov v Bulgaria App no 68490/01 [12 July 2007] para 59); (N) Right to an effective remedy (Art 13 ECHR; Conka v Belgium App no 51564/99 (ECHR 2002-I) para 83; Gebremedhin v France App no 25389/05 (ECHR 2007-II) para 66); and (O) Right to a fair trial (Art 6 ECHR; Sunday Times (cited above) para 55; Kostovski v The Netherlands App no 11454/85 Series A no 166 (1989) para 44; Salabiaku v France App no 10519/83 Series A 141-A (1988) para 28; Leempoel and others v Belgium App no 64772/0 [9 February 2007] para 75; Sürmeli v Germany App no 75529/01 (ECHR 2006-VII) para 104; Hornsby v Greece App no 18357/91 (EHRR 1997-II) para 40). This categorisation is based on contributions from the ECtHR Registry (Research Division) to the CM(2008)170, 21 November 2008.

Council of Europe and the Rule of Law 117 Member States on good administration could also be mentioned.6 The recommendation considered that the requirements of good administration ‘stem from the fundamental principles of the rule of law, such as those of lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency’. The Administrative Tribunal of the Council of Europe also referred to the rule of law internally. In its judgment of 13 March 2014, it recalled that: [T]he Council of Europe, by its very nature and the values it defends, has a duty to be an organisation upholding the rule of law, that is to say, it must fully honour staff rights in the context of legal relations between the administration and staff (see Recommendation 1488 (2000) on the nature and scope of the contractually acquired rights of Council of Europe staff, Article 4).7

This chapter presents in part II some reflections on an attempted consensual core content of the notion rule of law, its applicability and potential. In part III, we introduce a selected range of Council of Europe advisory bodies, monitory mechanisms and benchmarking institutions that have a particular impact on different aspects of the rule of law in Member States. In part IV, we outline the cooperation between the Council of Europe and the European Union in the field of rule of law, and offer some thoughts on how to enhance synergies and provide added-value in the future. Some conclusions will be drawn in part V.

II.  DEFINING THE RULE OF LAW WITHIN EUROPE

Despite the general commitment to the principle of the rule of law within the Council of Europe, the content of the notion is not strictly carved out. The extensive body of legal and political instruments within the Council of Europe does not provide any authoritative definition. This is also true for the legal system of the European Union, which lacks a commonly agreed concept of rule of law.8 Nor is the notion defined by law in the very states which can be seen to have fostered the concept in European legal doctrine. The Grundgesetz, the German Constitution of 1949, refers to the rule of law in three articles, but does not define its content.9 In the United Kingdom, the rule of law is not defined in any overriding constitutional or statutory document.10 Neither does French positive law offer any definition.

6  Recommendation CM/Rec(2007)7 of the Committee of Ministers to Member States on good administration, 20 June 2007. 7  Appeal no 540/2013, Staff Committee (XIV) v Secretary General. 8  S Carrera, E Guild and N Hernanz, The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU (Brussels, CEPS, 2013) 18. 9  Grundgesetz für die Bundesrepublik Deutschland, 23 May 1949, Arts 16(2), 23(1) and 28(1). 10  J Jowell, ‘Rule of Law, Human Rights and Democracy in the United Kingdom’ in Carrera et al (n 8) 64.

118  Jörg Polakiewicz and Jenny Sandvig The bilingual preparatory documents for the Council of Europe convey that the term ‘rule of law’ in the English draft version of the Statute of the Council of Europe (ETS No 001) had no corresponding parallel in French to begin with. In the early draft of the Statute dated 5 April 1949, the English version of Article 4(a) (later Article 3) provided that all members of the Council of Europe must accept ‘the principles of rule of law’, while the French version of the same Article referred to ‘les principes du respect de la loi’.11 The notion ‘prééminence du droit’ appears to have been introduced as an equivalent to ‘rule of law’ in the preparatory documents at a later stage. ‘Prééminence du [d]roit’ was included in the preamble and Article 3 of a Draft Statute prepared by Sir E Beckett, which was circulated amongst the States on 12 April 1949.12 The same notion was reiterated in the Draft Statute annexed to the Final report of the Preparatory Conference for the establishment of the Council of Europe on 14 April 1949.13 Recent case law of the ECtHR shows nonetheless that this notion is not always preferred when reference is made to the ‘rule of law’ in French. The Court uses also ‘Etat de droit’ when reasoning on rule of law-founded articles.14 The Parliamentary Assembly of the Council of Europe, in its Resolution 1594 (2007) on ‘The principle of the rule of law’, has voiced concern that ‘the variability in terminology and understanding of the term [rule of law], both within the Council of Europe and in its member states, has elicited confusion’.15 The Assembly stressed that the notion ‘prééminence du droit’ should be favoured when translating the rule of law. It also stressed that the Russian ‘verkhovensto prava’ (rule of law) should be used over the more formalistic ‘verkhovensto zakona’ (supremacy of statute law).16 Otherwise, the Assembly warned, there is ‘in these cases … an inappropriate lack of consistency and clarity when translating into the legal terms used in the member states.’17 The semantic problems of translation invoked by the Parliamentary Assembly can be seen to reflect the deeper conceptual and philosophical differences between

11  CE (Prep) P4, Preparatory conference for the establishment of a Council of Europe, 5 April 1949. In a Note by the Rapporteur of the Legal and Drafting Committee, it is emphasised that the ‘English and French versions of the draft should … be compared and brought together, it having not been possible to undertake any common translation work up till now because of the insufficient time ­available to the experts to carry out their task’. 12  CE (Prep) P6 Annex A (a) Draft Statute prepared in accordance with instructions of the Preparatory Conference for the Establishment of a Council of Europe by Sir E Beckett, 11 April 1949. 13  CE (Prep) P7 Appendix A, Final rapport of the Preparatory Conference for the establishment for the Council of Europe, 14 April 1949. 14 See Stafford v United Kingdom [GC] App no 46295/99 (ECHR 2002-IV) para 63; Kress v France [GC] App no 39594/98 (ECHR 2001-VI) para 69; Río Prada v Espagne [GC] App no 42750/09 (ECHR 2013) compare paras 77 and 125 with the partially dissenting opinion of Judge Mahoney. 15  PACE Resolution 1594 (2007), adopted by the Standing Committee, acting on behalf of the Assembly, on 23 November 2007. 16 ibid. 17 ibid.

Council of Europe and the Rule of Law 119 the main European legal traditions on the exact scope of the notion rule of law. Differences can be observed notably between the Common Law concept of the rule of law and the continental notions of Rechtsstaat and Etat de droit. According to Wennerström’s analysis in ‘The Rule of Law and the European Union’, significant differences arise notably concerning the element of ‘legality’ within the rule of law notion.18 While the German and French doctrine emphasizes the written rules of the Constitution or acts of Parliament, the Anglo-American tradition and the importance in it of the judge-made common law, does not have such a (lexical) approach to legality, nor to the rule of law.19

Moreover, while in the French and German constitutional traditions the legislative assembly is the principal source of law, the principal source of law in the Common Law tradition would be the courts.20 It has also been suggested that the British rule of law concept traditionally tends to emphasise formal and procedural requirements, whereas the modern German concept adds an important substantial dimension by stressing the protection of fundamental rights as an element of the Rechtsstaat principle.21 A pursued examination of possible differences between these legal traditions is however a question of primarily academic interest. For our purposes, it is sufficient to take note of the emergence of a consensus on the core content of the notion. The Parliamentary Assembly called upon the European Commission for Democracy through Law (Venice Commission), an advisory body of the Council of Europe, to assist in further reflections on the rule of law.22 Its purpose was to identify a consensual definition of the rule of law which could help international organisations and both domestic and international courts in interpreting and applying this fundamental value.23 Following thorough deliberations, the Venice Commission published a Report on the Rule of Law in 2011 where it proposed a functional non-exhaustive definition of the notion.24 This definition draws on a definition first proposed by a British judge, Lord Bingham. In 2010, he suggested the core of the principle to be ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws publicly made, taking effect (generally) in the future and publicly administrated in the courts’.25 Bingham further included eight components of the principle. Those were: (1) Accessibility of the law (that it be intelligible, clear and

18  EO Wennerström, The Rule of Law and the European Union (Uppsala, Iustus Förlag, 2007) 84, with further references to G Burdeau, Manuel de droit constitutionnel et institutions politiques (Paris, Dalloz 1984) 40–41. 19  Wennerström, ibid. 20  ibid, 51. 21  CM(2008)170, 21 November 2008, with further references to Wennerström (n 18) 61–76. 22  PACE Resolution 1594 (2007). 23  Venice Commission Report on the Rule of Law CDL-AD(2011)003rev, 25–26 March 2011, 3. 24 ibid. 25  T Bingham, The Rule of Law (London, Penguin Books, 2010) 8.

120  Jörg Polakiewicz and Jenny Sandvig predictable); (2) Questions of legal right should be normally decided by law and not discretion; (3) Equality before the law; (4) Power must be exercised lawfully, fairly and reasonably; (5) Human rights must be protected; (6) Means must be provided to resolve disputes without undue cost or delay; (7) Trials must be fair; and (8) Compliance by the state with its obligations in international law as well as in national law.26 According to the Venice Commission, there seems to be a consensus on six formal and substantial core elements within the notion of the rule of law.27 Their approach appears to differ from Bingham’s definition in some regards. For instance, the Venice Commission clearly recognised that discretionary power is necessary to perform a range of governmental tasks in modern, complex societies, provided that procedures exist to prevent its abuse.28 Moreover, the Venice Commission did not seem to single out an international rule of law aspect—compliance by the state of its international obligations—as a core ingredient of the rule of law. The necessary six elements, according to the Venice Commission, are the following: (1) Legality, including a transparent, accountable and democratic process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice before independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; and (6) Non-discrimination and equality before the law. This definition has been operationalised into a check-list on the rule of law, to provide practical parameters to evaluate the state of the rule of law in particular countries.29 The check-list consists of sub-requirements under each of the six core elements. For example, under point 4 on access to justice before independent and impartial courts, the check-list outlines nine sub-requirements with detailed questions, for instance whether ‘the department of public prosecution [is] to some degree autonomous from the state apparatus’. The functional approach of the Venice Commission has proved influential. The definition is referred to today as ‘one of the few widely accepted conceptual frameworks for the rule of law in Europe’.30 Such adherence is illustrated by the recent Communication from the European Commission on ‘A new EU Framework to strengthen the Rule of Law’, which is based on the rule of law as defined by the Venice Commission.31 The EU Communication applies an almost identical list of parameters.32 The only difference seems to be that the EU Communication does

26 ibid. 27 

CDL-AD(2011)003rev, 10. ibid, 10–11. 29  CDL-AD(2011)003rev, Annex: Checklist for evaluating the state of the rule of law in single states. 30  Carrera et al (n 8) 17. 31  Communication from the Commission to the European Union and the Council, ‘A new EU Framework to strengthen the Rule of Law’ COM(2014) 158 final, 11 March 2014, 4. 32  COM(2014) 158 final, 4. 28 

Council of Europe and the Rule of Law 121 not mention respect for human rights as such, but refers to respect for fundamental rights in respect of effective judicial review.33 Annex 2 to the Communication puts emphasis on the strong link between the ‘right to a fair trial and the separation of powers’.34 In its plenary session 21–22 March 2014, the Venice Commission decided to deepen its work on the check-list with the Bingham Centre. The aim of the revision of the check-list is to make it more operational. The ‘Rule of Law Checklist’ was eventually adopted by the Venice Commission at its 106th plenary session (Venice, 11–12 March 2016).35 It is an assessment tool specifying more detailed and additional benchmarks pertaining to the sub-requirements under each rule of law element. The danger in charging the rule of law concept with more detailed and substantial requirements is that the conception constructed may be so strong that it is regarded as purely political, or conversely, the conception becomes so vague that it cannot be used for an intelligent analysis; in a nutshell, the analysis may be reduced simply to whether or not we consider a legal system to be good. Moreover, measuring the ‘fairness’ of a procedure or a system, requires the making of very complex judgments. As Wennerström warned in 2007, attaching legal consequences and especially negative ones to a term, the meaning of which is unclear, runs counter to several if not most interpretations of the rule of law.36 In other words, by expanding the notion of the rule of law too widely, and charging it too heavily with substantial requirements, there is a risk that the notion itself becomes so uncertain and unpredictable that it could fail its proper tests on clarity and foreseeability. The Venice Commission’s ‘Rule of Law Checklist’ is neither exhaustive nor final, but aims to cover the core elements of the rule of law. It takes the existing diversity of European legal systems into account. Legal reasoning at European level rarely reaches the same breadth and depth as legal discourse at national level, which is one of the rationales behind the ECtHR’s margin of appreciation doctrine in the field of human rights protection.

III.  MONITORING MECHANISMS AND OTHER RULE OF LAW ACTIVITIES

A quick glance at the web page of the Council of Europe shows a number of 21 bodies and activities of the organisation listed under the heading ‘Rule of Law’.37 Three sub-headings indicate their particular field of work. Under the first sub-heading,

33 ibid. 34 

ibid, Annex 2. at www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_ List.pdf. 36  EO Wennerström (n 18) 87 and 81. 37  See www.coe.int. 35 Available

122  Jörg Polakiewicz and Jenny Sandvig ‘Justice’, we find for example the Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE). Under the second subheading, ‘Common Standards and Policies’ we find amongst others the Venice Commission, the European Committee on Crime Problems (CDPC) and the European Committee on Legal Cooperation (CDCJ). Under the third sub-heading, ‘Threats to the Rule of Law’ we find monitoring mechanisms such as the Group of States against Corruption (GRECO) and the Committee of Experts on the Evaluation of AntiMoney Laundering Measures and the Financing of Terrorism (MONEYVAL). This glimpse of activities testifies the major importance that promoting and ensuring the respect for the rule of law plays in the daily work of the Council of Europe. An in-depth analysis and overview of this patchwork of rule of law-related mechanisms and bodies can be found in the Council of Ministers’ document CM (2008)170 ‘The Council of Europe and the Rule of Law—An overview’.38 This overview was requested by the 118th Ministerial Session of the Council of Europe to assess the potential of the organisation in the field of rule of law. The document draws up a typology of relevant activities undertaken by the Council of Europe. It distinguishes between these activities: (i) promoting the conditions necessary for the rule of law; (ii) promoting the respect for the rule of law; (iii) addressing threats to the rule of law; (iv) ensuring respect for the rule of law; and (v) strengthening the international rule of law.39 This paper will not reiterate the activities structured around this typology, but rather concentrate on five mechanisms and bodies of particular importance. The Venice Commission is already mentioned, and will be presented in greater detail below. The other mechanisms and bodies include the Parliamentary Assembly (PACE) Monitoring Committee, the European Commission for the Efficiency of Justice (CEPEJ), the Group of States against Corruption (GRECO) and the Council of Europe Commissioner for Human Rights. The highly important work of the ECtHR regarding individual but also systemic violations of the rule of law will be elaborated on elsewhere.40

A.  European Commission for Democracy through Law (Venice Commission) The Venice Commission is an independent consultative body established by an enlarged agreement within the Council of Europe.41 It has 59 Member States, including the USA, Israel and Brazil, and is often described as one of the great successes of the Organisation. Its specific field of action concerns the guarantees

38 

CM(2008)170, 21 November 2008. ibid, Chs I and IV. See the contribution by Judge E Steiner in this book. 41  Resolution(90)6 On a Partial Agreement Establishing the European Commission for Democracy through Law, adopted by the Committee of Ministers, 10 May 1990. 39  40 

Council of Europe and the Rule of Law 123 offered by law in the service of democracy.42 The Commission is composed of independent experts in law or political science.43 These experts are appointed by the participating states, but serve in their individual capacity without any instructions from the states.44 One of its key objectives is the promotion of the rule of law. Article 1(2) of the Statute of the Venice Commission establishes that its work will focus on the ‘constitutional, legislative and administrative principles and techniques which serve the efficiency of democratic institutions and their strengthening, as well as the principle of the rule of law’.45 The Venice Commission has for more than 20 years dealt extensively with rule of law issues in all Member States. The rule of law is promoted as a basic feature of European constitutionalism through recommendations and opinions prepared for Member States on draft constitutions and legislation in different fields.46 The Venice Commission can be seized by the Committee of Ministers, the Parliamentary Assembly, and the Secretary General or by a participating state, international organisation or body to provide an opinion.47 It may also carry out research on its own initiative, prepare studies and draft guidelines, laws and international agreements.48 This flexible and ad-hoc character permits the Venice Commission to react swiftly to threats to the rule of law, and ensures its relevance in the midst of unfolding events. This was last seen during the current crisis in Ukraine, where the Venice Commission played, and still plays, an important role. On 7 March 2014, it was asked by the Secretary General to provide an opinion on whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 Constitution was compatible with constitutional principles. In an opinion adopted on 21–22 March 2014, the Commission concluded that the referendum was incompatible with the Ukrainian Constitution.49 The Commission also provides, on the request of Ukrainian authorities, valuable assistance in the on-going process of constitutional and electoral reforms in the country. In recent years, the Venice Commission has also prepared several opinions on controversial laws in Romania and Hungary. Opinion 720/2013 assessed for example the compatibility of a Fourth Amendment to the Fundamental Law of

42  CM Resolution(2002)3 Revised Statute of the European Commission for Democracy through Law, Art 1. 43  ibid, Art 2. 44 ibid. 45  ibid, Art 1(2). 46  CM(2008)170, 21 November 2008, para 78. 47  Resolution(2002)3, Art 3(2). 48  ibid, 3, Art 3(1). 49  Opinion no 762 / 2014, CDL-AD(2014)002-e, paras 27–28.

124  Jörg Polakiewicz and Jenny Sandvig Hungary with the Council of Europe Standards.50 The Venice Commission concluded that the amendment: [P]erpetuates the problematic position of the President of the National Judicial Office, seriously undermines the possibilities of constitutional review in Hungary and endangers the constitutional system of checks and balances. Together with the en bloc use of cardinal laws to perpetuate choices made by the present majority, the Fourth Amendment is the result of an instrumental view of the Constitution as a political means of the governmental majority and is a sign of the abolition of the essential difference between constitution-making and ordinary politics.51

The Commission has also produced a draft report on the notion of good governance, where it emphasised that the rule of law requires an active, agile state which can draw the appropriate balance in respecting the freedoms of its inhabitants and yet ensuring the results which are required from it under human rights law.52 Asked about the impact of the Venice Commission’s opinions, its president, Gianni Buquicchio, declared in November 2013: I can safely affirm that our opinions generally have considerable impact, for a number of reasons. To quote a few: (i) In the States where we work regularly, the reputation of the Commission is very high. Governments are reluctant to position themselves against the Venice Commission and the opposition can refer to our opinions, which are public, as an important argument. (ii) While it is often not possible to push a country towards adopting a positive reform, we can mostly prevent a country from going into the wrong direction.53

B.  PACE Monitoring Committee The Monitoring Committee (Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe) of the Parliamentary Assembly of the Council of Europe was established in 1997.54 It is responsible 50  CDL(2012)023 Opinion 720/2013. It should be read in the light of previous Venice Commission opinions on Hungary. See particularly the Opinion on three legal questions arising in the process of drafting the new Constitution of Hungary; Opinion on the new Constitution of Hungary; Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary; Opinion on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities of Hungary; Opinion on Act CLI of 2011 on the Constitutional Court of Hungary; Opinion on Act CLXIII of 2011 on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career of Hungary; Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary 7. 51  Opinion 720, ibid, para 147. 52  CDL-AD(2011)009, 22. 53 G Buquicchio, Speech on 28 November 2013, at the 79th Steering Committee for Human Rights, Appendix VI to the CDDH meeting report, at: www.coe.int/t/dghl/standardsetting/cddh/ CDDH-DOCUMENTS/CDDH(2013)R79_EN.pdf. 54  PACE Resolution 1115 (1997).

Council of Europe and the Rule of Law 125 for verifying the fulfilment of obligations assumed by the Member States under the terms of the Organisation’s Statute (ETS No 1), the European Convention on Human Rights and all other Council of Europe Conventions, as well as honouring specific commitments undertaken by Member States upon accession.55 In 2006, the scope of monitoring was extended from new Member States to all Member States.56 Relying on cooperation and dialogue with national delegations of countries under a monitoring procedure, its findings and recommendations are based on fact-finding visits. The Committee submits annual reports to the Assembly on its activities. Since 1997, the Committee has produced numerous reports on Member States under the monitoring procedure and post-monitoring dialogue.57 Professor Serhiy Holavaty at the University of Kyiv observed in 2012 that its activities have ‘proved to be a significant tool in assisting the member-states that joined the Council of Europe after 1989 to comply with the European rule-of-law standards, in particular by bringing those standards to states’ national systems’.58 The Committee is currently working on draft reports on the honouring of obligations and commitments by Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Montenegro, the Russian ­ Federation, Serbia, Ukraine, as well as reports on the post-monitoring dialogue with Bulgaria, Monaco, ‘the former Yugoslav Republic of Macedonia’, Turkey and France.59 In January 2011, in light of developments in Hungary causing concerns for the rule of law, a motion was put forward to request the opening of a monitoring procedure.60 The Parliamentary Assembly, deciding not to open a monitoring procedure, undertook in resolution 1941 (2013) to ‘closely follow the situation in Hungary and to take stock of the progress achieved’.61 The Assembly disposes of a range of sanctions in the context of monitoring. Resolution 1115 (1997) paragraph 12 provides that if a Member State shows ‘persistent failure to honour obligations and commitments accepted’ and a ‘lack of cooperation in [the] monitoring process’, the Assembly may penalise the State by adopting a resolution and/or a recommendation, by the non-ratification of the credentials of a national parliamentary delegation at the beginning of its next ordinary session or by the annulment of ratified credentials in the course of the same ordinary session.62 Moreover, should the Member State continue not to respect its commitments, the Assembly may address a recommendation to the Committee of

55 

PACE Resolution 1822 (2011), Rules of procedure, s 8.1. PACE Resolution 1515 (2006). 57 An extensive overview of reports and resolutions in the period of 1997–2012 is given by Professor S Holavaty, University of Kyiv, ‘The Rule of Law in Action’ in Conference on The Rule of Law as a Practical Concept, 2 March 2012, Reports, 17–70, at 43. 58  ibid, 33. 59  PACE Resolution 1941 (2013). 60  Motion for a resolution on ‘Serious setbacks in the fields of the rule of law and human rights in Hungary’, Doc 12490, presented by Mrs de Pourbaix-Lundin and others on 25 January 2011. 61  PACE Resolution 1941 (2013). 62  PACE Resolution 1115 (1997), para 12. 56 

126  Jörg Polakiewicz and Jenny Sandvig Ministers requesting it to take the appropriate action in accordance with Articles 7 and 8 of the Statute of the Council of Europe.63 Furthermore, the Rules of Procedure of the Assembly explicitly refer to the ‘persistent failure to honour obligations and commitments and [to the] lack of cooperation with the Assembly’s monitoring procedure’, as well as ‘serious violation of the basic principles of the Council of Europe’, as ‘substantial grounds’ for which the credentials of a national delegation may be challenged. Challenge of credentials can take place on the basis of a report prepared by the Monitoring Committee or a motion tabled by a certain number of parliamentarians.64 For the Spring Session of the Parliamentary Assembly in April 2014, two motions were tabled to reconsider the ratified credentials or to suspend the voting rights of the Russian delegation on substantive grounds for violation of Ukrainian territorial integrity, on the basis of Rule 9(1)(a) of the Rules of Procedure of the Assembly.65 During the Spring Session 2014, the Assembly decided to suspend until 26 January 2015 the voting rights of the Russian delegation, as well as its right to be represented in the Assembly’s leading bodies and to participate in election observation missions.66 The Assembly invited the Monitoring Committee to ‘consider setting up an investigative sub-committee tasked with examining and following the developments relating to the conflict since August 2013’. It also reserved the right to annul the credentials of the Russian delegation, if the Russian Federation ‘does not deescalate the situation and reverse the annexation of Crimea’.67 The suspension was renewed in 2015.

C.  Group of States against Corruption (GRECO) The Group of States against Corruption (GRECO) was created in 1999 to improve its members’ capacity to combat corruption by monitoring through its evaluation procedures.68 It is based on an enlarged agreement within the Council of Europe, and provides a mechanism to ensure the respect of the rule of law and address threats to the rule of law in all 47 Member States of the Council of Europe, along with Belarus and the United States of America. The creation of GRECO was a novelty in the way that a fully-fledged monitoring mechanism was set up to control simultaneously the respect of soft and

63 ibid. 64 

Rules of Procedure of the Parliamentary Assembly, rule 8.2. The first Motion for a resolution, Doc 13457, was tabled by Mr Robert Walter and other members of the Assembly on 21 March 2014. The second Motion for a resolution, Doc 13459 corr, was tabled by Mr Michael Aastrup Jensen and other members of the Assembly on 24 March 2014. 66  Resolution 1990 (2014), available at http://website-pace.net/documents/10643/110596/20140410Resolution1990-EN.pdf/57ba4bca-8f5f-4b0a-8258-66ca26f7117b. 67  PACE Resolution 1990 (2014). 68  CM Resolution (98)7. 65 

Council of Europe and the Rule of Law 127 hard law instruments. GRECO monitors 20 guiding principles for the fight against corruption (GPC), which are not legally binding but have the legal value of recommendations.69 GRECO also monitors the implementation of several Council of Europe conventions and recommendations, in particular the Criminal Law Convention on Corruption (ETS 173, 1999), the Civil Law Convention on Corruption (ETS 174, 1999), CM Rec(2000)10 on codes of conduct for public officials and CM Rec(2003)4 on common rules against corruption in funding of political parties and electoral campaigns. GRECO’s monitoring activities are based on the principles of mutual evaluation and peer pressure. It is carried out by ad hoc evaluation teams, whose members are chosen on the basis of the list of experts proposed by GRECO members.70 Evaluation teams will examine replies to questionnaires, request and examine additional information to be submitted either orally or in writing, visit member countries for the purpose of seeking additional information of relevance to the evaluation, and prepare draft evaluation reports for discussion and adoption at the plenary sessions.71 Although evaluation reports are in principle confidential, Member States have without exception agreed to make them public. The reports regularly contain recommendations inviting the Members undergoing the evaluation to improve their domestic laws and practices to combat corruption.72 The Members concerned will be invited to report on the measures taken to follow these recommendations.73 If it believes that Members remain passive or take insufficient action in respect of recommendations addressed to them, GRECO is entitled to issue public statements.74 The evaluation of Member States is divided in rounds.75 GRECO’s first evaluation round (2000–2002) dealt with the independence, specialisation and means of national bodies engaged in the prevention and fight against corruption. It also dealt with the extent and scope of immunities of public officials from arrest, prosecution and so forth. The second evaluation round (2003–2006) focused on the identification, seizure and confiscation of corruption proceeds, the prevention and detection of corruption in public administration and the prevention of legal persons from being used as shields for corruption. The third evaluation round (launched in January 2007) addresses the incriminations provided for in the Criminal Law Convention on Corruption and the transparency of party funding.

69 

CM Resolution (97)24. Appendix to CM Resolution (99)5, Statute of GRECO, Art 12. 71  ibid, Art 13. 72  ibid, Art 15. 73 ibid. 74  ibid, Art 16. 75  ibid, Art 10. 70 

128  Jörg Polakiewicz and Jenny Sandvig D.  European Commission for the Efficiency of Justice (CEPEJ) The European Commission for the Efficiency of Justice (CEPEJ) was established in 2002 by a Committee of Ministers’ resolution to promote precise knowledge of the judicial systems in Europe and of the different existing tools which enables it to identify any difficulties and facilitate their solution.76 The CEPEJ is composed of experts from all the 47 Member States of the Council of Europe. Observer States to the CEPEJ are the Holy See, Canada, Japan, Mexico, United States of America, Israel and Morocco. The European Union also participates actively in CEPEJ activities without being a full Member. One of the main functions of the CEPEJ is to promote the conditions necessary for the rule of law.77 It drafts measures and prepares pragmatic tools for policy makers and judicial practitioners to improve the efficiency and quality of the functioning of judicial systems, and develops networking between courts of the Member States. CEPEJ also undertakes activities to promote the respect for the rule of law.78 The CEPEJ supports individual Member States in their judicial reforms, on the basis of European standards and other Member States’ experience. It contributes specific expertise to the debate on the functioning of the justice system in Europe and beyond: it provides the legal and judicial community with a forum for discussion and suggestions and brings justice systems and their users closer, for instance through its Internet website and its publications in the Series ‘CEPEJ Studies’. Lastly, CEPEJ evaluates the functioning of the Member States’ judicial systems through a regular process for collecting and analysing quantitative and qualitative data on the function of justice systems.79 It prepares benchmarks, collects and analyses data, and defines instruments and means of evaluation.

E.  Council of Europe Commissioner for Human Rights The Commissioner for Human Rights was established in 1999 as an independent institution within the Council of Europe.80 The Commissioner is a non-judicial body responsible for promoting respect for and education in human rights, as derived from the Council of Europe’s instruments. Nils Muiznieks currently holds this office. As a non-judicial institution, the Commissioner’s Office cannot act upon individual complaints, but it can draw conclusions and take wider initiatives on the basis of reliable information regarding human rights violations suffered by individuals. While his mandate regards human rights, his work encompasses an important rule of law dimension. Administration of justice and its effect on

76 

CM Res(2002)12. CM(2008) 170, 21 November 2008, para 67. ibid, para 80. 79  ibid, para 105. 80  CM Resolution (99)50. 77  78 

Council of Europe and the Rule of Law 129 the effective enjoyment of human rights have been increasingly important issues for the Commissioner’s office. It has conducted major country monitoring work with substantial reports and recommendations on the administration of justice in countries such as Georgia, Ukraine, Russia and Turkey. The Commissioner’s report on Turkey of 10 January 2012 provides a pertinent example.81 The report followed a five day visit to Turkey in October 2011 that focused especially on justice issues, prompted by a number of ECtHR judgments against Turkey that identified long-standing, systemic problems concerning the administration of justice. The Commissioner’s report dealt in particular with the independence and impartiality of judges and prosecutors, and the role of courts in combating impunity for serious human rights violations. He expressed that ‘the main factor hampering progress in practice has been the entrenched culture within the Turkish judiciary, and the fact that the protection of the state often takes precedence over the protection of human rights’.82 The Commissioner gave several recommendations to change this course. With regard to impunity and police violence, the Commissioner suggested to ‘establish a police complaints mechanism, which satisfies the principle of independence, adequacy, promptness, public scrutiny and victim involvement’.83 The Commissioner is a source of information on systemic rule of law problems in the Member States, focusing especially on justice issues. To quote him, three recurring rule of law-related problems revealed by his country visits are ‘nonenforcement of court decisions, challenges to the legitimacy of the judiciary and pressure on the independence of judges’.84 Another increasingly important dimension of the Commissioner’s rule of lawinvolvement is related to his role under Article 36 of the ECHR.85 It provides that the Commissioner can take part in the proceedings of the ECtHR at the invitation of the President of the Court or on his own initiative. The underlying idea, as envisaged by the Explanatory report of Protocol No 14 to the ECHR, is that the Commissioner’s experience may enlighten the Court on certain questions, ‘particularly in cases which highlight structural or systemic weaknesses in the respondent or other High Contracting Parties’.86 These various monitoring mechanisms and activities within the Council of Europe contribute significantly to promote and to ensure the respect of the rule of law.87 The work of the Council of Europe in the field of the rule of law cannot, however, be fully understood without emphasising its interplay with another key

81 

CommDH(2012)2. See also the remarks of the Turkish state annexed to the report. ibid, para 127. 83  ibid, para 146. 84  Article published by Open Democracy on 20 February 2014. Available at www.opendemocracy. net/opensecurity/nils-mui%C5%BEnieks/leaning-on-judges-eroding-rule-of-law-in-europe. 85  Protocol No 14 to the ECHR entered into force on 1 June 2010. 86  Explanatory report to the Protocol No 14 to the ECHR, para 87. 87  CM(2008) 170, 21 November 2008, para 97. 82 

130  Jörg Polakiewicz and Jenny Sandvig actor for safeguarding the rule of law in Europe—the European Union. The next part focuses on the level of cooperation between the Council of Europe and the European Union in the field of the rule of law, and how synergies between the two can be further improved.

IV.  COOPERATION ON THE RULE OF LAW WITH THE EUROPEAN UNION

Both the Council of Europe, of 47 Member States, and the European Union, of 28 Member States, are seeking to achieve greater unity between the States of Europe through respect for the shared values of pluralist democracy, the rule of law and human rights. The rule of law is referred to in Article 6(1) of the Treaty on European Union as a principle on which the Union is founded, and the Copenhagen criteria of 1993 set out the rule of law as a condition for membership. The ‘Memorandum of Understanding between the Council of Europe and the European Union’ of May 2007 identifies the rule of law as a priority area of common interest and commits both institutions to co-operate in the development of a European area based on law.88 It provides in particular that: [T]he Council of Europe and the European Union will endeavour to establish common standards thus promoting a Europe without dividing lines, without prejudice to the autonomy of decision. Bearing this in mind, legal co-operation should be further developed between the Council of Europe and the European Union with a view to ensuring coherence between Community and European Union law and the standards of Council of Europe conventions. This does not prevent Community and European Union law from adopting more far-reaching rules.89

During recent years, the cooperation between the Council of Europe and the European Union has further deepened, transforming mutual relations into a truly ‘strategic partnership in the areas of political dialogue, legal co-operation and concrete cooperation activities’.90 EU accession to the ECHR will mark another major shift in the strengthening of the protection of human rights and the rule of law in Europe, by ultimately submitting the EU and its legal acts to the jurisdiction of the European Court of Human Rights. In April 2013, a draft agreement on the accession of the EU to the ECHR and related instruments were finalised at expert level. However, on 18 December 2014, the Court of Justice of the European Union declared the draft agreement incompatible with the EU treaties.

88 Memorandum of Understanding between the Council of Europe and the European Union, adopted 23 May 2007, available at http://ec.europa.eu/justice/international-relations/files/mou_2007_ en.pdf. 89  ibid, paras 23–24. 90  See for the state of cooperation ‘124th Session of the Committee of Ministers (Vienna, 5–6 May 2014)—Cooperation with the European Union—Summary report’ CM(2014) 38 (30 April 2014), available at https://wcd.coe.int/ViewDoc.jsp?Ref=CM(2014)38&Language=lanEnglish&Ver=original &Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383.

Council of Europe and the Rule of Law 131 It was against this background of an ever closer across-the-board cooperation between the Council of Europe and the European Union that the EU Council conclusions on fundamental rights and the rule of law of June 2013 emphasised the importance to: [M]ake full use of existing mechanisms and cooperate with other relevant EU and international bodies, particularly with the Council of Europe, in view of its key role in relation to promotion and protection of human rights, democracy and the rule of law, in order to avoid overlaps.91

Referring specifically to proposals for an EU framework to strengthen compliance of EU Member States with rule of law standards, the Committee of Ministers in its reply to Parliamentary Assembly Recommendation 2027 (2013) stressed in February 2014 that it: [F]ully supports the efforts deployed by the Secretary General, who has intensified his political consultations with the EU institutions, emphasising in particular the message that a possible future EU framework should take into account the instruments and expertise of the Council of Europe and co-operate closely with it.92

It is therefore to be welcomed that the European Commission’s Communication on a new rule of law mechanism within the EU asserts that the suggested new EU Framework to strengthen the rule of law will be complementary to ‘all the existing mechanisms already in place at the level of the Council of Europe to protect the rule of law’.93 The Communication states that the Commission ‘will as a rule and in appropriate cases seek the advice of the Council of Europe and/or its Venice Commission’.94 Any initiative to set up new mechanisms to respect the rule of law by developing indicators, monitoring the situation in EU Member States and producing recommendations or adopting sanctions should indeed take into account existing instruments and mechanisms within the Council of Europe. The fact that these mechanisms are not restricted to the 28 EU Member States but cover nearly the entire continent is an extremely important added-value. One might argue that the more there are instruments and institutions to protect and promote the rule of law the better. This rather simplistic view ignores the real risk that the multiplication of standards and actors may lead to unnecessary duplications, inconsistencies and forum-shopping, which are in the interests of neither citizens nor governments.

91  Council conclusions on fundamental rights and the rule of law and on the Commission 2012 Report on the Application of the Charter of Fundamental Rights of the European Union, Justice and Home Affairs Council meeting Luxembourg, 6 and 7 June 2013, at www.consilium.europa.eu/uedocs/ cms_data/docs/pressdata/en/jha/137404.pdf. 92  CM/AS(2014)Rec2027 final ‘European Union and Council of Europe Human Rights Agendas: Synergies not Duplication!’ Parliamentary Assembly Recommendation 2027 (2013), Reply adopted by the Committee of Ministers on 19 February 2014 at the 1192nd meeting of the Ministers’ Deputies. 93  COM(2014) 158 final, 11 March 2014, 6. 94  ibid, 9.

132  Jörg Polakiewicz and Jenny Sandvig Experience shows that concerted action by the EU and the Council of Europe has a stronger impact (for example, in the Hungary and Romania files). There are many ways the Council of Europe and the EU could complement each other. The Council of Europe has a wealth of accurate and objective information on shortcomings of human rights and the rule of law collected and analysed by independent monitoring bodies and in accordance with agreed procedures. The Committee of Ministers’ supervision of the execution of ECHR judgments also constitutes an invaluable source of information on efforts made by Member States to remedy both individual and systemic violations identified by the ECtHR. Various forms of concrete cooperation on the rule of law issues already exist, involving in particular the Venice Commission, CEPEJ, GRECO and the Human Rights Commissioner.95 The CEPEJ contributes to the EU justice scoreboard process, providing annually statistical and numerical data on the functioning of the justice systems in each EU Member State and country specific information, analysis and trends. The EU justice scoreboard relies on information provided through the CEPEJ, thus avoiding the duplication, increasing CEPEJ’s visibility, and confirming its status as a common European reference point. The EU has also been cooperating closely with the Council of Europe Human Rights Commissioner with a view to mutually exchanging information.96 Finally, it should not be forgotten that the effective realisation of values such as democracy and the rule of law depend on the critical mass of institutional actors, women and men enforcing them at national level with their own integrity. For this reason cooperation activities which assist Member States in their efforts to adapt legislation, practice and institutions to European standards are so important. The Council of Europe and the European Union cooperate also closely in the field, notably within the framework of the latter’s Neighbourhood policy. The European Commission regularly consults the Council of Europe when assessing the situation in these countries. On 1 April 2014, the EU and the Council of Europe signed a ‘Statement of Intent’ putting in place a new framework for cooperation in the EU Enlargement and Neighbourhood Regions for the period 2014–2020.97 The agreement will enable a more strategic and result-focused cooperation to promote inter alia the rule of law in the EU Enlargement and Neighbourhood Regions based on the Council of Europe’s binding international conventions, monitoring bodies and assistance programmes.98

95 

See already in 2008 CM(2008) 170, para 123. recommendations in the Communication from the Commission to the Council and the European Parliament on Art 7 of the Treaty on European Union—Respect for and promotion of the values on which the Union is based, COM/2003/0606 final. 97 Statement of Intent for the Cooperation between the Council of Europe and the European Commission in the EU Enlargement Region and the Eastern Partnership and Southern Mediterranean Countries (EU Neighbourhood Region), 1 April 2014. 98  Press release—DC037(2014). 96  See

Council of Europe and the Rule of Law 133 Several EU–Council of Europe cooperation programmes which cover SouthEast Europe, the south Caucasus, Russia and Turkey focus on the development of the judiciary, on penitentiary reforms, on the fight against various forms of economic and organised crime, and international cooperation in criminal matters.99 Two successful examples could be mentioned here. First, there is the Council of Europe/EU Joint Programme on ‘Strengthening the Court Management System in Turkey’ (JP COMASYT). This joint programme has introduced and tested new models for increasing the efficiency and the user-friendliness in 21 pilot courthouses. New judicial functions were put in place, and information desks and front offices were installed in the pilot courthouses. Second, the Council of Europe/ EU Joint Programme ‘Enhancing judicial reform in the Eastern Partnership countries’ financed by the EU and implemented by the Council of Europe concerns the reform of judicial systems of Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. The objective is to identify legal and practical obstacles to the implementation of relevant European standards, and to formulate recommendations and best practices to address these obstacles.

V.  CONCLUDING OBSERVATIONS

Despite the lack of an authoritative definition of the notion of the rule of law, the examples of rule of law related mechanisms and activities presented in this chapter show that the Council of Europe works on a daily basis to promote and strengthen the rule of law in and among its Member States.100 With a view to further advancing the rule of law, the Council of Europe has taken up the European Commission’s invitation to engage in further discussions on the complementarity of existing and new mechanisms.101 The ‘Reports on the state of democracy, human rights and the rule of law in Europe’ that the Secretary General presented at the Committee of Ministers’ ministerial sessions in Vienna (May 2014), Brussels (May 2015) and Sofia (May 2016) provide a strategic assessment of the current situation all over Europe, while also critically examining the Council of Europe’s own capacity to assist Member States in complying with European standards.102 The impact of Council of Europe monitoring mechanisms is limited by certain constraints, in particular resources. Monitoring cycles are sometimes rather long. Capacities for rapid reaction which the Venice Commission so successfully demonstrated in the Ukrainian crisis do not exist in all other mechanisms or are rarely used.

99 

CM(2008) 170, 21 November 2008, para 120. CM(2008) 170, paras 29–30. 101  COM(2014) 158 final, 6. 102  All reports are available at www.coe.int/. 100 

134  Jörg Polakiewicz and Jenny Sandvig The European Union’s rule of law initiative could become a catalyst for a further deepening of the strategic partnership between the EU and the Council of Europe. More than simply drawing on existing Council of Europe standards and data, the EU could have a unique role in strengthening existing mechanisms and ensuring the implementation of conclusions and recommendations in EU Member States. Last but not least, the EU could also resort to Council of Europe mechanisms and procedures when it comes to specific intervention, such as a set of measures or sanctions in order to better safeguard the rule of law and fundamental rights within the EU, in particular on issues where EU action is hampered by a lack of competences. Legal certainty being a key feature of the rule of law, it is of paramount importance that European institutions use the same language and standards when they assess the situation in the Member States.

8 The Rule of Law in the Jurisprudence of the European Court of Human Rights ELISABETH STEINER

I. INTRODUCTION

The idea of the rule of law has been led back as far as to the Greek p ­ hilosopher Aristotle, who said in his famous treatise ‘Politics’: He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.1

The notion that governance should be based on an established system of rules of conduct as opposed to being dependent on the whims of an individual is to be found in numerous early examples of legal codification leading to the modern understanding of the rule of law as a concept distinct from ‘the rule of man’. Today, the rule of law is considered to be a basic principle of good governance. Already the Universal Declaration of Human Rights of 1948 contains an express reference in its Preamble stating that, ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ This reference is also in line with the then-freshly adopted United Nations (UN) Charter. While the Charter contains no express reference to the rule of law, its Preamble lists, among the purposes of the UN the establishing of conditions ‘under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’. The Charter invests the UN with the mandate: [T]o maintain international peace and security … and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

1 Aristotle, Politics: A Treatise on Government Book III (New York, Digireads.com Publishing, 2005) 53.

136  Elisabeth Steiner II.  ATTEMPTING TO DEFINE THE RULE OF LAW

Whereas the rule of law seems to be an omnipresent notion, when it comes to defining it, no single definition can be given, nor a single, universally accepted model of it identified.2 However, while the components that are deemed to be inherent to the rule of law in different legal systems and in the opinions of different experts do not completely overlap, there are two core elements that figure in all such constructions. These two elements are the idea that governance should be based on laws and that governmental power shall be subject to control. The first denotes the principle of legality, construed in the sense that those who govern are also subject to the law which both empowers them to act and defines the limits of their room to manoeuvre. The second is inherently linked to the first and denotes the idea that the rule of law calls for a government that is accountable to its constituency and subject to some form of control. Thus, the rule of law presupposes that society is organised and governed through law and that the government is subject to the limitations under conditions similar to other components of the system.3 Though there is relative consensus with respect to the above-discussed two elements forming the core of the rule of law, the interpretation of these elements has been subject to considerable controversy. Similarly, there is no agreement concerning additional components of the rule of law. In this connection, it needs to be noted that the concept of the rule of law has at times been criticised as a ‘western concept’ that is foreign to non-western societies. This has been claimed on several grounds, such as on the basis of the argument that the rule of law in its western construction is a top-down endeavour that serves the interests of the ruling elite. Many caution that the rule of law cannot be ­transplanted into such societies or if it were to be transplanted, this would happen at excessive cost as western-style rule of law would disrupt the existing social order.4 In this regard, two issues are to be pointed out. On the one hand, it is broadly accepted that the notion of the rule of law is inherently linked to the notion of democracy, as its fulfilment requires governance that is transparent, accountable and responsive to citizens. However, arguably, international law (as opposed to European regional instruments, as will be pointed out below) does not explicitly require a State to have a system of democratic governance established.

2  See, eg, P Selcznik, ‘Democracy and the Rule of Law’ (2005) 33 Syracuse Journal of International Law and Commerce 29. 3  In this sense see also G Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford, Oxford University Press, 2013) 19ff. 4  R Peerenboom, China’s Long March toward Rule of Law (Cambridge, Cambridge University Press, 2002) 126ff. In addition, experts point out Singapore as an example of a state with a well-established legal system that conforms to most requirements of the rule of law but that cannot be characterised as a democracy due to the lack of free, democratically organised elections. See Lautenbach, ibid 63.

Rule of Law in Jurisprudence of the ECtHR 137 On the other hand, most definitions of the rule of law include respect for human rights as an element thereof. Arguably, full respect for certain human rights, in particular of certain civil and political rights, is only conceivable in a system based on democratic values. There are however voices that object to the universal nature of the full set of recognised human rights norms and values arguing that human rights need to be conceived in the light of cultural relativism.5 In this sense, it is claimed that some rights, in particular civil and political rights, such as freedom of expression, are inherent to western societies but are not well-established in some other cultures. While identifying a universally accepted definition of the rule of law does not seem to be feasible, it is nonetheless necessary to come up with a ‘working ­definition’, for the purposes of this chapter. For this reason, the definition put forward by Kofi Annan, the United Nations Secretary-General in his 2004 report to the Security Council on rule of law and transitional justice will be used as a point of departure.6 The report describes the rule of law as meaning accountable governance, based on laws that are publicly promulgated, equally enforced, independently adjudicated and in line with international human rights norms and standards. The rule of law can therefore be described as embodying the following: a ­system of governance that is participatory, is based on the separation of powers and thereby ensures democratic accountability; supremacy of laws that are fair, foreseeable, stable, as well as adopted and enforced according to transparent procedures; equality before the law, implying that no one is above the law but also that no one is outside the law; fairness in the application of the law, including through an independent and competent judiciary, where access to justice is guaranteed; and lastly, but most importantly for the purposes of our discussion: all this is done in a manner that ensures respect for international human rights standards. The idea of respect for human rights permeates all other aspects of the rule of law and informs the manner in which these other components need to be conceived and implemented, namely in a manner that guarantees respect for and fulfilment of human rights. The reason why human rights play such a prominent role in establishing the rule of law is because respect for human rights is what distinguishes ‘rule of law’ 5  See, for example, D Ayton-Shenker, ‘The Challenge of Human Rights and Cultural Diversity’ United Nations Background Note, available online at: www.un.org/rights/dpi1627e.htm. 6  The report defines the rule of law as follows:

[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. See, ‘The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General’ (23 August 2004) UN Doc S/2004/616.

138  Elisabeth Steiner from ‘rule by law’. Many oppressive or dictatorial regimes can be deemed to be ‘ruling by law’ with their functioning being based on the laws adopted and implemented by the respective regime. In this sense, Nazi Germany or apartheid South Africa would have largely fulfilled the ‘rule by law’ requirement—their laws however showed blatant disregard for fundamental human rights. It is debated whether respect for the rule of law includes respect for all human rights, including economic, social and cultural rights.7 While there is no consensus with respect to that question, it is uncontroversial that most definitions of the rule of law consider respect for basic human rights standards to be essential to the establishment of a rule of law-based society. The importance of respect for a number of civil and political rights, in particular the rights that guarantee participation of citizens in public decision-making, is easily demonstrated. However, the significance of economic, social and cultural rights should also not be dismissed. A low-level fulfilment of economic, social and cultural rights as well as violations thereof have a serious impact on the enjoyment of civil and political rights as well. Socially or economically underprivileged individuals or groups are usually also excluded from public decision-making thereby causing a vicious cycle where these individuals or whole segments of the population are trapped in a disadvantaged state. Underlining the need for respect of human rights standards as an element of the rule of law is of particular importance due to the fact that certain elements of the rule of law may be in tension with each other: for example, under international law (and in harmony with the requirements of rule of law) States have the obligation to protect persons within their jurisdiction from terrorist and other threats and to take measures necessary in this regard. Counterterrorism policies however frequently impact on the enjoyment of a series of human rights. Some States have taken measures that resulted in effectively placing persons outside of the reach (and protection) of the law.8 Such measures have at times been motivated by political reasons.9 Thus, some governments have attempted to brand

7 For example, the definition provided by the International Commission of Jurists is allencompassing, specifying that in addition to respect for civil and political rights, it was also essential for the rule of law ‘to establish social, economic, educational, and cultural conditions’. See International Commission of Jurists, ‘Declaration of Delhi: The Rule of Law in a Free Society’ (New Delhi, 1959). This definition has been criticised by some as overly broad. See, for example, J Raz, The Authority of Law (Oxford, Clarendon Press, 1979) 211. 8  The most prominent example in this regard is perhaps the treatment of Guantanamo detainees by the US at the outset of the so-called ‘Global War on Terror’. The then-US administration has claimed that these detainees were not protected by human rights law, as human rights covenants did not apply extraterritorially. Nor were they protected by international humanitarian law and the 1949 Geneva Conventions as such persons, in the view of the administration, did not qualify either as prisoners of war or as civilian internees, thereby falling outside of the Conventions’ protective scope. Thereby, according to the government’s claims, Guantanamo detainees fell into a ‘legal black hole’ or a ‘protection black hole’. 9  See, for example the concerns expressed by the United Nations High Commissioner for Human Rights with respect to arrests of journalists under counter-terrorism legislation in Ethiopia or the statement made by the Special Rapporteur on human rights and counterterrorism urging Chilean

Rule of Law in Jurisprudence of the ECtHR 139 their ­political opposition as terrorists, with the aim of discrediting them, on the one hand, and to justify measures not in line with human rights and the rule of law, on the other. The importance of upholding respect for human rights in the context of the fight against terrorism has also been pointed out by the European Court of Human Rights in recent judgments.10

III.  THE RULE OF LAW IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The Preamble to the European Convention on Human Rights makes reference to European countries being ‘like-minded’ and having ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Moreover, Article 3 of the Statute of the Council of Europe emphasises that members of the Council of Europe ‘must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. As a result, the concept of the rule of law is quite prominently present in the European Court of Human Rights’ jurisprudence. The Court stated in this regard that the concept of the rule of law ‘inspires the whole Convention’11 and is ‘inherent in all the Articles of the Convention’.12 While the Court has never provided a definition of the notion of the rule of law, it noted in Golder v United Kingdom (this being the first case in which the Court expressly refers to the rule of law) that the rule of law should not be regarded as ‘a merely more or less rhetorical reference’, devoid of relevance for those interpreting the Convention. One reason why the signatory Governments decided to ‘take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’ was their profound belief in the rule of law.13 The principle of the rule of law proved to be a particularly useful tool for the Court assisting it in interpreting, supplementing and enhancing the protection standards set out in the Convention.

authorities to refrain from applying anti-terrorism legislation in connection with the Mapuche indigenous peoples’ land protests. See United Nations News Centre, ‘UN human rights chief condemns crackdown on journalists in Ethiopia’ (2 May 2014) available www.un.org/apps/news/story.asp?NewsID=47704#. VHIdEItN3zL; United Nations Office of the High Commissioner for Human Rights, ‘UN expert urges Chile to stop using anti-terrorism legislation and to adopt national strategy to address the Mapuche question’ (30 July 2013) available at: www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=13599&LangID=E#sthash.vSvi6lKY.dpuf. 10  El-Masri v the Former Yugoslav Republic of Macedonia (GC) App no 39630/09, 13 December 2012, § 239; Al Nashiri v Poland App no 28761/11, 24 July 2014 (nyr) § 455. The Court emphasised that the practice of extraordinary rendition was ‘anathema to the rule of law and the values protected by the Convention’. 11  Engel and Others v the Netherlands App nos 5200/71 and 5101/71, Series A no 22, 8 June 1976, § 69. 12  Amuur v France App no 19776/92, 1996-III, 25 June 1996, § 50. 13  Golder v the United Kingdom App no 4451/70, Series A no 018, 21 February 1975, § 34.

140  Elisabeth Steiner A.  The Rule of Law as a Fundamental Principle of a Democratic Society The Court construed the concept of the rule of law as inherent to a democratic society. It referred to it as ‘one of the fundamental principles of a democratic society’14 and emphasised that a democratic society shall be based on the rule of law15 thereby inferring that respect for the rule of law was only possible in the context of a democratic regime.16 In addition, the rule of law is also related to the broader concept of the ‘European public order’17 as emphasised in Article 3 of the Statute of the Council of Europe as well as Article 2 of the Treaty on the European Union.18 Against this background, in the espace juridique of the Convention, rule of law does not only require that society is governed on the basis of laws but also that these laws are the result of a democratic process. This requirement goes beyond the mere notion of majority rule and denotes that decision-making should be a participatory process. Moreover, the separation of powers ensures that power is not concentrated in the hands of one individual or institution but that it is shared among a number of actors. Most importantly, this power-share guarantees that those enacting the law are not the same as those deciding on its application in practice. The Court identified certain rights as central to democracy and the rule of law, demonstrating the interdependence of these two notions. In particular, a number of political rights are understood to be essential to a functioning democracy, such as the right to vote, freedom of expression and freedom of assembly. The emphasis on these rights can be explained through the Court construing a democratic society as a pluralist one. The Court has repeatedly referred to democracy and pluralism together, defining the latter as follows: ‘the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts’.19

14  15 

Klass and Others v Germany App no 5029/71, Series A no 269, 8 September 1978, § 55. Vereiniging Weekblad Bluf v Netherlands App no 16616/90, Series A no 306 A, 9 February 1995,

§ 35. 16  See also Winterwerp v the Netherlands App no 6301/73, Series A no 33, 24 October 1979, § 39 referring to a ‘democratic society subscribing to the rule of law’ and Malone v the United Kingdom (Pl) App no 8691/79, 2 August 1984, § 79 mentioning ‘democratic society based on the rule of law’, and ‘rule of law in a democratic society’. 17  United Communist Party of Turkey and Others v Turkey App no 19392/92, 30 January 1998, § 45. 18  Art 2 of the Treaty on the European Union is worded as follows: The Union 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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. 19  See for example Gorzelik and Others v Poland (GC) App no 44158/98, ECHR 2004-I, 17 February 2004, § 92; Tebieti Mühafize Cemiyyeti and Israfilov v Azerbaijan App no 37083/03, 8 October 2009, § 53.

Rule of Law in Jurisprudence of the ECtHR 141 The Court has explained that no democratic society existed without ‘pluralism, tolerance and broad-mindedness’,20 the reason why the Court has repeatedly emphasised that Article 10 of the Convention also extends to speech that ‘offends, shocks or disturbs’.21 Moreover, under the Convention, political speech enjoys heightened protection as the Court recognises the importance of free debate for the democratic process22 emphasising that the essence of democracy is ‘its capacity to resolve problems through open debate’.23 In the Court’s view Articles 10 and 11 of the European Convention on Human Rights are closely linked as freedom of association is frequently used with the aim of ensuring freedom of expression and speech, both rights being fundamental to pluralism and democracy.24 While respect for both of these rights must be an indispensible feature of any democratic society, none of the two rights are absolute. Limitations to the freedoms of expression and assembly are allowed under the Convention provided such limitations are prescribed by law, pursue a legitimate aim and are necessary in a democratic society.25 Nevertheless, whenever it comes to limitation of political speech that could impact on democratic processes and thereby also on the rule of law, the Court only allows for a very narrow margin of appreciation and submits such cases to very close scrutiny.26 The Court has placed particular emphasis on the right to vote and to stand for election, as guaranteed by Article 3 of Protocol No 1.27 The right to vote is inherently linked to the rule of law as it provides for the democratic legitimacy of the legislature and thereby, implicitly, for the legitimacy of laws enacted by that

20 

Handyside v the United Kingdom App no 5493/72, 7 December 1976, § 49.

21 ibid.

22  See, for example Lingens v Austria App no 9815/82, 8 July 1986, Series A no 103, § 42 where the Court stated that ‘freedom of political debate is at the very core of the concept of a democratic society’. See also Stankov and the United Macedonian Organisation Ilinden v Bulgaria App nos 29221/95 and 29225/95, ECHR 2001-IX, 2 October 2001, § 85. Moreover, in Castells v Spain the Court stated the following:

Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society. See Castells v Spain no 11798/85, Series A no 236, 23 April 1992, §43. 23  Stankov and the United Macedonian Organisation Ilinden v Bulgaria (n 22) § 97. 24  Refah Partisi (the Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98, 41344/98, ECHR 2003-II, 13 February 2003, § 44. 25 See the second para of both Arts 10 and 11. See also, Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria App no 15183/89, 19 December 1994; Vogt v Germany (GC) App no 17851/91, 21 EHHR 205, 26 September 1995; Guja v Moldova App no 14277/04, 12 February 2008. 26  In this sense see, for example: Lingens v Austria (n 22); Castells v Spain (n 22); Jerusalem v Austria App no 26958/95, ECHR 2001-II, 27 February 2001. 27  Hirst v the United Kingdom (GC) App no 74025/01, ECHR 2005-IX, 6 October 2005, § 58; Albanese v Italy App no 77924/01, 23 March 2006, § 44; Aziz v Cyprus no 69949/01, 2004-V, 22 June 2004, § 25.

142  Elisabeth Steiner ­legislature.28 The importance of regularly held elections is therefore underlined in the Court’s jurisprudence.29 The Court however accepted the possibility to restrict the right to vote as far as these restrictions do not curtail the right in question to such an extent as to impair its very essence. For example, in Hirst v the United Kingdom, the Grand Chamber of the Court noted that the general and automatic disenfranchisement of convicted prisoners may pursue the legitimate aim of preventing crime and also the aim of enhancing civic responsibility and respect for the rule of law.30 A closer look at the Court’s jurisprudence with respect to the link between the rule of law and democracy also shows that the Court champions a definition of democracy that clearly goes beyond the formal ‘majority rule’ approach and emphasises its participatory character and the right of individuals to be involved in public decision-making.

B.  Guarantees that are Inherent to the Rule of Law The Court in its jurisprudence has identified a series of institutional, procedural and substantive guarantees which may be inferred from or linked to the concept of the rule of law. These guarantees, to be addressed in the following, aim at protecting the individual from arbitrariness, especially in the relations between the individual and the State. i.  The Rule of Law and Judicial Oversight As noted earlier, the rule of law implies the existence of an independent and competent judiciary that ensures that laws are applied in a fair and equal manner and reviews the State’s compliance with its human rights’ obligations. For the judiciary to fulfil its role as the adjudicator, it needs to be independent from other branches of power. The rule of law presupposes some sort of functional separation of powers. Such separation ensures the integrity of the law and that power is not exercised arbitrarily as those enacting the laws are not the ones applying it. Moreover, the three branches of power need to cooperate with each other in order to ensure that each of them can fulfil their role. This cooperation also provides for mutual control, the so-called checks and balances. Separation of power thereby also protects against the abuse of the law for private purposes.

28  Hirst v the United Kingdom, ibid § 62; Georgian Labour Party v Georgia App no 9103/04, 8 July 2008, § 119. 29  Georgian Labour Party v Georgia, ibid § 91. 30  Hirst v the United Kingdom (n 27) § 74. It nonetheless has to be noted that the measures taken by the authorities in the case in question failed to comply with the principle of proportionality to a legitimate aim.

Rule of Law in Jurisprudence of the ECtHR 143 In this sense, the Court held that the judiciary was the ‘guarantor of justice, a fundamental value in a law-governed State’, and as such, ‘it must enjoy public confidence if it is to be successful in carrying out its duties’.31 Courts have the task to control the exercise of executive power, through judicial review and ensure respect for the law by individuals by way of fair resolution of legal disputes. This implies the existence of a number of guarantees, some of which are of an institutional nature, relating to the independence of the judiciary from other branches of public power, most importantly from the executive. a.  Independence and Impartiality of the Judiciary The independence of the judiciary, as an element of the rule of law, denotes both independence from other branches of power as well as from the parties to the dispute (this latter aspect is in principle termed as impartiality). The independence of the judiciary is necessary both to uphold the integrity of the judicial process and respect for the law. It allows courts to decide cases before them on the basis of legal, as opposed to political or other, considerations. The independence of the judiciary is not usually examined in connection with the principle of the rule of law in the Court’s case law. However, the Court has pointed out that a tribunal must satisfy the requirements of independence from the executive, the legislative and also from the parties. The notion of the separation of powers between the political organs of government and the judiciary has also assumed growing importance in the Court’s case-law.32 In Stafford v the United Kingdom, one of the landmark cases in relation to the issue of separation of powers, the Grand Chamber had to decide on the compatibility with the Conventions’ standards of the far-reaching powers of the United Kingdom Secretary of State who had the authority to decide on the punitive element of a criminal sentence (known as the tariff) and on whether or not to release a prisoner once the tariff had expired. In this sense, the Grand Chamber stated: However, with the wider recognition of the need to develop and apply, in relation to mandatory life prisoners, judicial procedures reflecting standards of independence, fairness and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case-law of the Court.33

It has to be noted nonetheless that up until now the Court has not examined separation of powers in relation to the rule of law. While in Stafford v the United

31 

Kobenter and Standard Verlags GmbH v Austria App no 60899/00, 2 November 2006, § 29. Stafford v the United Kingdom (GC) App no 46295/99, ECHR 2002-IV, 28 May 2002, § 78. 33 ibid. 32 See

144  Elisabeth Steiner Kingdom the Grand Chamber has made reference to both notions, these references have been made concerning different aspects of the case.34 The first landmark case where the Court examined the independence of the judiciary as a component of the rule of law was Assanidze v Georgia.35 Here the applicant complained about being detained by authorities of the Ajarian Autonomous Republic despite having received a presidential pardon for a first offence and having been acquitted for a second by the Supreme Court of Georgia in a decision that was final and unappealable. Among others, the case also concerned a parliamentary inquiry launched into the circumstances in which the applicant had been granted a presidential pardon. Although the parliamentary committee’s terms of reference were confined to issues relating to the presidential pardon, the committee also decided to examine the circumstances in which the applicant had been acquitted. As a result of its inquiry, the committee found that the Supreme Court should not have taken ‘a decision to acquit that was illegal, unfair and based on insufficiently investigated facts’. The Court has looked into the issue of independence of the judiciary in the context of its discussion on domestic remedies, noting that the principle of the rule of law and the notion of fair trial preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute. It continued by stating: Consequently, the Court would be extremely concerned if the legislation or practice of a Contracting Party were to empower a non-judicial authority, no matter how legitimate, to interfere in court proceedings or to call judicial findings into question.36

Moreover, the Court stressed that the principle of legal certainty precluded any attempt by a non-judicial authority to call a final judgment into question or to prevent its execution.37 That interference by the legislature with the administration of justice clashes with the concept of the rule of law which has also been confirmed in other cases before the Court. According to the Court, the principle of the rule of law and the notion of fair trial enshrined in Article 6 of the Convention preclude any interference by the legislature—other than on compelling grounds of the general interest—with the administration of justice designed to influence the judicial determination of a dispute.38

34  The Court referred to the rule of law with respect to the applicant’s continued detention, which it considered to be lacking a legal basis and therefore being at odds with the rule of law. 35  Assanidze v Georgia (GC) App no 71503/01, ECHR 2004-II, 8 April 2004. 36  ibid, § 129. 37  ibid, § 130. 38 See Zielinski and Pradal & Gonzales v France (GC) App nos 24846/94, 34165/96 and 34173/96, ECHR 1999-VII, 28 October 1999, § 57; Stran Greek Refineries and Stratis Andreadis v Greece App no 13427/87, Series A no 301 B, 9 December 1994, § 49. This principle also applies to cases in which the State is not a party to the dispute. See Cabourdin v France App no 60796/00, 11 April 2006.

Rule of Law in Jurisprudence of the ECtHR 145 As noted at the beginning of the subsection, the judiciary is further required to show guarantees of independence from parties to disputes before it. This form of independence is usually referred to as impartiality in legal literature. However, independence and impartiality are in practice frequently difficult to separate. Such a distinction is particularly difficult to draw when it comes to objective impartiality of a court or of judges as this may depend, just like independence, on ­organisational structure and institutional safeguards.39 Similarly to judicial independence, the issue of impartiality has only exceptionally been linked to the notion of rule of law in the Court’s jurisprudence. One such example would be the Kyprianou case concerning the applicant being tried and sentenced for contempt of court by the same judges in respect of which he was accused of having ­committed contempt. In its assessment the Grand Chamber noted that the principle that a tribunal shall be presumed to be free of personal prejudice or partiality reflected an important element of the rule of law, namely that the verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis of irregularity or u ­ nfairness.40 In the case concerned, the Court held that the impartiality of the tribunal in question ‘was capable of appearing open to doubt’.41 The requirements of independence and impartiality of the judiciary have been set out in much more detail in the Court’s jurisprudence relating to the right to fair trial as guaranteed in Article 6 of the Convention, but without linking any of these two notions to the concept of the rule of law. b.  Judicial Control of the Executive The principle of the rule of law has been construed to mean that the government needs to be subjected to some form of control, the principle of checks and balances being crucial to a system governed by the rule of law. One form of the control of the executive is the control performed by the judiciary. In this sense the European Court of Human Rights has stated that judicial control of interferences by the executive with the individual’s right to liberty was implied by the rule of law. Therefore, in case of such interference, control should be assured by the judiciary, at least in the last resort, as judicial control offers the best guarantees of independence, impartiality and a proper procedure.42

39  D Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights 2nd edn (Oxford, Oxford University Press, 2009) 291. 40  Kyprianou v Cyprus (GC) App no 73797/01, ECHR 2005-XIII, 15 December 2005, § 119. 41  ibid, § 128. 42 See Klass and Others v Germany (n 14), Van de Huck v the Netherlands App no 16034/90, 19 April 1994; Brannigan and McBride v the United Kingdom App nos 14553/89 and 14554/89, Series A no 258 B, 26 May 1993; Brogan and Others v the United Kingdom App no 11209/84 et al, Series A no 145 B, 29 November 1988.

146  Elisabeth Steiner The Court has further highlighted the importance of judicial review of executive action in relation to deprivation of liberty (Article 5). The procedural guarantees embedded in paragraphs 3 and 5 of Article 5 of the Convention aim primarily at protecting the individual from arbitrary interference, as repeatedly underlined by the Court in its case law. In Brogan and Others v United Kingdom the Court held that ‘judicial control of interferences by the executive … is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness’.43 Moreover, judicial oversight of detention also has a role in ensuring respect for the rights enshrined in Articles 2 and 3 as established by the Court in Kurt v Turkey: Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention. What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.44

Judicial control also plays a crucial role in guaranteeing the right to an effective remedy as guaranteed under Article 13. Even though Article 13 does not explicitly require that such effective remedy is provided by a judicial authority, redress of a judicial nature is more susceptible of satisfying the requirements imposed by the Court in order for the remedy to be considered effective.45 The right to a remedy is in principle dependent upon an arguable violation of one of the rights guaranteed by the Convention, however, it has developed into a more autonomous right. In Klass and Others v Germany the Court clarified for the first time that for a violation of the right to an effective remedy, a violation of another Convention article is not an absolute prerequisite. In this sense the Court noted that Article 13: [R]equires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art 13) must be interpreted as guaranteeing an ‘effective remedy before a national authority’ to everyone who claims that his rights and freedoms under the Convention have been violated.46

While it may have been appropriate to link the broadening of the scope of Article 13 to the rule of law and its role to protect the individual from ­arbitrariness,

43  Brogan and Others v the United Kingdom, ibid § 58. See also Brannigan and McBride v the United Kingdom, ibid § 48; Aksoy v Turkey (GC) App no 21987/93, ECHR 1996-VI, 18 December 1996, § 76, etc. 44  Kurt v Turkey App no 24276/94, ECHR 1998-III, 25 May 1998, § 123. 45 See Silver and Others v the United Kingdom App nos 5947/72 et al, Series A no 61, 25 March 1983, § 67. 46  Klass and Others v Germany (n 14) § 64.

Rule of Law in Jurisprudence of the ECtHR 147 the Court did not make explicit reference to it in the judgment. The Court has however made use of the rule of law when developing the requirement that in cases concerning the expulsion of aliens, Article 13 may require the setting up of a remedy with automatic suspensive effect. This would be particularly important whenever the alien risks facing treatment contrary to Convention standards, in particular torture or ill-treatment, if deported.47 ii.  Due Process Guarantees A wide spectrum of requirements of justice and fairness, procedural as well as substantial, necessary for the effective protection of human rights is linked to the rule of law. The notion of the rule of law is used in cases related to the presumption of innocence,48 defence rights,49 and the right to enforcement of judgments50 as well as the right to be tried within a reasonable period of time.51 This section will continue by addressing the right to access to court and the principle of legal certainty; both guarantees are crucial to the due process that the Court has consistently examined in relation to the rule of law. a.  Access to Court The right of access to court was established on the basis of the principle of the rule of law in the Golder v the United Kingdom judgment. The question before the Strasbourg bodies was whether Article 6 § 1 of the Convention could be interpreted as guaranteeing a right of access to court in spite of the fact that such a right is not stated in that Article in express terms. Both the Court and the Commission found that Article 6 of the Convention does by implication include the right to access to court. The Court went on to explain that not recognising the right to access to court would impair the procedural guarantees contained in Article 6. The Commission opined that access to court and the procedural safeguards of Article 6 constitute the very essence of the rule of law, which it characterised as one of the main objects and purposes of the Convention.52 The Court also took the opportunity to underline the role of the rule of law as one of the principles mentioned in the Preamble of the Convention and the Statute of the Council of Europe stressing that it was part of the common

47  Čonka v Belgium App no 51564/99, ECHR 2002-I, 5 Februray 2002, § 83; Gebremedhin v France App no 25389/05, ECHR 2007-II, 26 April 2007, § 66. 48  Salabiaku v France App no 10519/83, Series A, no 141 A, 7 October 1988. 49  Leempoel & SA ED Ciné Revue v Belgium App no 64772/01, 9 November 2006. 50  Hornsby v Greece App no 18357/91, ECHR 1997-II, 25 February 1997. 51 In Sürmeli v Germany the Grand Chamber drew attention to ‘the important danger that exists for the rule of law within national legal orders when excessive delays in the administration of justice occur in respect of which litigants have no domestic remedy’. Sürmeli v Germany (GC) App no 75529/01, ECHR 2006-VII, 8 June 2006, § 104. 52  Golder v the United Kingdom (n 13) §§ 53–54.

148  Elisabeth Steiner ­ uropean heritage and one of the main aims behind the setting up of the ConvenE tion system of protection of fundamental rights. In this sense the Court stated the following: One reason why the signatory Governments decided to ‘take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’ was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31 para 1 of the Vienna Convention) to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 para 1 according to their context and in the light of the object and purpose of the Convention.53

The Court used the principle of the rule of law as an interpretative tool in order to clarify the scope of protection of the right to a fair trial under Article 6. While it expanded the scope of the guarantees protected under the Convention, this expansion was considered by the Court to be a ‘declaratory’, not a ‘constitutive’ one, in the sense that the Court’s ruling was based on already existing principles, principles that were to be considered generally accepted in the espace juridique of the Convention. While Golder v the United Kingdom referred to access to court with respect to civil rights and obligations, the Court soon thereafter clarified that access to court was also guaranteed in criminal cases, in connection with a criminal charge.54 Subsequent jurisprudence contributed to crystallising the elements of the access to court and its scope. In Bellet v France the Court stated in this regard: The degree of access [to a court] afforded by the national legislation must also be sufficient to secure the individual’s ‘right to a court’, having regard to the principle of the rule of law in a democratic society. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights.55

Nonetheless, the right of access to court is not absolute and it may be subject to limitations. The Court has nonetheless specified that limitations that may involve arbitrariness are not permissible. In this sense, limiting access to court with respect of a whole range of civil claims or conferring immunity from civil liability on a category of persons is incompatible with the right to access to court as it impairs the very essence of that right.56 For this reason, the Court examines in each case before it whether the limitation imposed impairs the essence of the right and, in particular, whether such limitations pursue a legitimate aim and whether the means employed were proportionate to the aim sought to be achieved.

53 

ibid, § 34. Deweer v Belgium App no 6903/75, Series A no 35, 27 February 1908, § 49. Bellet v France App no 23805/94, Series A no 333 B, 4 December 1995, § 36. 56  Fogarty v the United Kingdom (GC) App no 37112/97, ECHR 2001-XI, 21 November 2001, § 25; Al-Adsani v the United Kingdom (GC) App no 35763/97, ECHR 2001-XI, 21 November 2001, § 47. 54  55 

Rule of Law in Jurisprudence of the ECtHR 149 b.  Legal Certainty The principle of legal certainty has been considered essential to the public’s confidence in the judicial system and the rule of law. In this sense, in the case Brumărescu v Romania the Court held that a procedure which allowed the Attorney General to apply for a final judgment to be quashed without there being any time limit to exercise such power was not compatible with Article 6 § 1 of the Convention. The Court found that this procedure infringed the principle of legal certainty, requiring respect for the res judicata, and breached the applicant’s right to a fair hearing: ‘One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have made a final determination of an issue, their ruling should not be called into question.’57 According to the findings of the Court in Pullar v the United Kingdom,58 among others, another important element of the rule of law, linked to legal certainty, is that the verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis of irregularity and unfairness. For this reason, respect for the principle of legal certainty may impose an obligation to set restrictions on time limits governing the filing of appeals.59 Thereby, respect for legal certainty may imply limitations to the right to access to court, provided such limitations are not unreasonable and such as to impair the essence of the right. In the view of the Court, the rule of law does not permit the non-execution of judicial decisions. This was first decided in the case of Hornsby v Greece where the Court pointed out that the right of access to the court would be illusory if a contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. The obligation to enforce final judgments is most frequently addressed under Article 6, however, it can and has been examined under a range of articles, such as Article 8 (the right to private and family life), Article 1 of Protocol 1 (the right to property) and so forth.60 Finally, the Court has considered that the existence of conflicting Supreme Court decisions is in itself contrary to the principle of legal certainty.61 It is therefore required that the courts, especially the highest courts within the domestic legal order, establish mechanisms to avoid conflicts and ensure the coherence of their case law. This is also necessary to strengthen the public confidence in the judiciary.

57 

Brumărescu v Romania App no 28342/95, ECHR 1999-VII, 28 October 1999, § 61. Pullar v the United Kingdom App no 22399/93, ECHR 1996-III, 10 June 1996. 59  Miragall Escolano and Others v Spain App nos 38366/97 et al, ECHR 2000-I, 25 January 2000, § 33. 60 See Immobiliare Saffi v Italy (GC) App no 22774/93, ECHR 1999-V, 28 July 1999, on Art 6 and Art 1 Protocol 1; Nuutinen v Finland App no 32842/96, ECHR 2000-VIII, 27 June 2000, on family disputes under Art 8; and Giacomelli v Italy App no 59909/00, ECHR 2006-XII, 2 November 2006 on environmental issues under Art 8. 61  Beian v Romania (No 1) App no 30658/05, ECHR 207-V, 6 December 2007, § 39. 58 

150  Elisabeth Steiner C.  The Principle of Legality Under the Convention This section will address aspects of the notion of legality as construed in the case law of the European Court of Human Rights. As set out in the introductory part of the paper, legality is a central element of the rule of law. A considerable part of the Court’s case law that refers to the rule of law addresses it in relation to the principle of legality. It can therefore be said that the Court shares the view of ­interpreting legality as a cornerstone component of the rule of law. Respect for the principle of legality is pivotal whenever Convention rights are limited. Many provisions of the Convention and its Protocols allow for limitations of the rights guaranteed therein. While the test followed by the Court when examining whether an interference with a Convention rights is permissible shows slight differences depending on the right in question, the Court’s assessment in principle focuses on the following elements: 1) whether the interference is provided by law (the principle of legality); 2) whether it follows a legitimate aim; and 3) whether it is necessary in a democratic society. The Court interprets the principle of legality as containing two major components: first, the requirement that a law exists in the domestic system and that the existing law complies with certain quality requirements. Our analysis will overwhelmingly focus on this latter component, as it represents the more problematic aspect of the principle of legality. A well-functioning legal system (part and parcel of the principle of legality) is crucial for ensuring adequate human rights protection. The Court has in this sense held that the Convention requires Contracting States to set up a legal framework that is developed enough to allow individuals to assert their rights effectively.62 The Convention uses the term ‘law’ in different Articles of the Convention and its Protocols.63 Apart from the formal notion of law referred to in the context of the right to a tribunal ‘established by law’, the notion of law systematically used by the Court is a material or substantive one. This means that the word ‘law’ covers not only statutes but also unwritten law as well as regulations and other acts that do not have the status of statute under domestic law. In this sense the Court has stated with regard to the obligation that any ­deprivation of liberty must be effected ‘in accordance with a procedure prescribed by law’: Article 5 (1) requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law; like the expressions ‘in accordance with the law’ and ‘prescribed by law’ in the second paragraphs of Articles 8 to 11 (art 8-2, art 9-2, art 10-2, art 11-2), they also relate to the quality of the law, requiring

62 

Kotov v Russia (GC) App no 54522/00, 3 April 2012, § 117. 2, 5, 6, 7, 8, 9, 10, 11 of the Convention, Art 1 of Protocol No 1, Art 2 of Protocol No 4, Protocol No 7. 63  Arts

Rule of Law in Jurisprudence of the ECtHR 151 it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention.64

As the functioning of the Court is governed by the principle of subsidiarity and the Court consistently emphasises that its role is not of a ‘fourth instance’, the Court in principle does not second-guess the domestic authorities’ interpretation of domestic law. Exceptionally, the Court will nonetheless question the authorities’ position when it considers that their assessment is manifestly arbitrary.65 i.  The Quality of Law In the Court’s established jurisprudence, being compatible with the rule of law requires that the law in question be ‘sufficiently accessible and foreseeable as to its effects, that is, formulated with sufficient precision to enable the individual to regulate his conduct’ and that the individual affected by it ‘must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’66 This requirement has first been voiced in the judgment in Sunday Times v the United Kingdom, specifying that national law must conform to a certain standard of quality. That mere compliance with domestic law is not sufficient for compliance with Convention standards has been underlined in Malone v the United Kingdom where it was stated that lawfulness ‘does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention.’67 Foreseeability and accessibility, the two main requirements by reference to which the quality of the law as assessed in Strasbourg case law, are addressed below. a. Accessibility In the interpretation of the Court, accessibility implies that ‘the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.’68 It also means that the individuals that are to be affected by the respective legislation shall have the possibility to become aware of its content. In this respect, the Court takes into account ‘the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed’.69

64 

Amuur v France (n 12) § 50. Kononov v Latvia (GC) App no 36376/04, 24 July 2008, § 108. 66  Sunday Times v United Kingdom (no 1) App no 6538/74, 26 April 1979, § 49. 67  Malone v the United Kingdom (n 16) § 67. 68  Sunday Times v United Kingdom (no 1) (n 66) § 49; Malone v the United Kingdom, ibid § 66. 69 See Groppera Radio AG and Others v Switzerland App no 10890/84, Series A no 173, 28 March 1990, §§ 65–68. 65 

152  Elisabeth Steiner For instance, technical regulations in the field of international telecommunications law, which were primarily intended for specialists and which ‘could be easily obtained’, were regarded as sufficiently accessible in the case of Groppera Radio AG and others v Switzerland.70 Accessibility does not necessarily mean that the law needs to be published or publicly available. However, the State needs to provide persons requesting to consult the law with copies or ensure that such persons can otherwise consult the legislation in question (as was the case in Groppera Radio AG and others v Switzerland). In case of legislation that is of interest to a broad category of people, however, the requirement of accessibility is unlikely to be met if the law is not publicly available. Thus, the standard for accessibility is lower in case of technical regulations or other specific rules that are of interest only to a narrow category of people and more stringent in case of legislation of general interest. The Court has also addressed the requirement of accessibility of rules of international law, including customary international law in the Kononov case. In this sense, the Grand Chamber noted that the fact that international law and customary law standards are not published does not infringe on the accessibility requirement. In the case in question, the applicant, as a military commander, could have reasonably been expected to be aware of the law of armed conflict and frame his conduct accordingly.71 All in all, it has to nonetheless be noted that the Court has rarely found fault with the accessibility of legislation, with most legality-related shortcomings concerning foreseeability and the existence of safeguards against arbitrariness. b. Foreseeability The requirement of foreseeability imposes two conditions that need to be fulfilled by the law and that may seem schizophrenic at first sight. It firstly requires that the law is worded in a general manner and, secondly, that it is sufficiently precise. Upon closer scrutiny this demand is nonetheless justified. Laws in principle should be worded generally to enable their application to a potentially large number of relevant situations. Absolute foreseeability is not possible as it would lead to a level of rigidity that is counterproductive. The generality of the wording provides for the necessary flexibility to fit a series of circumstances. At the same time, the law shall be sufficiently precise to enable individuals to know the consequences of their conduct under the respective law. Thus the balance of the generality and specificity of the law is inherent in the foreseeability requirement. The requirements that a law needs to fulfil in order to be considered sufficiently foreseeable are nonetheless more stringent in the Court’s case law. In Silver and

70 ibid. 71 

Kononov v Latvia (n 65) §§ 237–38.

Rule of Law in Jurisprudence of the ECtHR 153 Others v the United Kingdom72 the Court established that ‘a law which confers a discretion must indicate the scope of that discretion’. In Malone v the United Kingdom it further developed this statement by noting that it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.73

As the case in question concerned a complaint about telephone tapping, the Court stressed that the necessary legal protection against arbitrary interferences by public authorities in line with the rule of law is particularly important where an executive power is exercised in secret. The risk of arbitrariness in respect of secret measures being evident, would be contrary to the rule of law for the legal discretion granted even to the judge to be expressed in terms of an unfettered power.74 Moreover, the Court has stated that law that is inconsistent cannot comply with the requisite of foreseeability. This requirement does not only refer to the law per se but also to the jurisprudence interpreting the law. The Court however did not construe this requirement very strictly, noting that inconsistency impacts on the quality of law if it is susceptible to prejudicing the protection of rights guaranteed under the Convention.75 Foreseeability also opposes the retroactive application of the law. The principle of legality (nullum crimen sine lege, nulla poena sine lege) embodied in Article 7 of the Convention was expressly declared by the Court to be an essential element of the rule of law and ‘it should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.’76 While this aspect is mostly related to criminal cases in the context of Article 7, the non-retroactivity aspect of the foreseeability requirement is broader than the scope of that Article. In particular, the Court has referred to non-retroactivity in connection to the foreseeability of the law in cases concerning the right to fair trial.

72  Silver and Others v the United Kingdom App nos 5947/72 et al, Series A no 61, 25 March 1983. The cases regarded control of correspondence of detainees by the prison authorities. 73  Malone v United Kingdom App no 8961/79, Series A no 82, 2 August 1984, § 68. 74 The same requirements apply in relation to other Arts of the Convention which contain a reference to the term ‘law’, such as Art 5 (Amuur v France); Art 9 (Perry v Latvia App no 30273/03, 8 November 2007); Art 10 (Glas Nadejda Eood and Elenkov v Bulgaria App no 14134/02, 11 October 2007); Art 11 (Rekvényi v Hungary (GC) App no 25390/94, ECHR 1999-III, 20 May 1999); Art 1 of Protocol No 1 (Apostolidi and others v Turkey no 45628/99, 27 March 2007); and Art 1 of Protocol No 7 (Lupsa v Romania App no 10337/04, 8 June 2006). 75  Khudyakova v Russia App no 13476/04, 8 January 2009, §§ 70–74. 76  CR v the United Kingdom App no 20190/92, Series A no 335 C, 22 November 1995.

154  Elisabeth Steiner IV.  CONCLUDING REMARKS

It is now time to recall one of the ideas we started with, namely that respect for human rights permeates all aspects of the rule of law as it is also clearly discernable from the jurisprudence of the European Court of Human Rights. Even though the Court has never provided its own definition of the concept of the rule of law, the rule of law clearly has a pre-eminent place in the jurisprudence. The Court has used it to interpret the content of obligations under the Convention, in some cases thereby even broadening these obligations to include aspects that are not expressly included in the text of the Convention. Such aspects were nonetheless deemed to form part and parcel of the respective right on the basis of the principle of the rule of law.77 Moreover, the Court has emphasised that democracy is inseparably linked to the rule of law, the concept implying the existence of separation of powers, institutional guarantees for the independence of the judiciary, as well as the existence of judicial oversight of the executive. The Court explained that the notion of ‘law’ and the requirements included in the phrase ‘prescribed by law’ relate to the quality of the law, and are required to be compatible with the rule of law. In this sense, the Court emphasised the role of accessibility and foreseeability of the law, emphasising that the rule of law also encompasses the principle of legality, as a component of the foreseeability requirement. However, the single most important aspect that is assessed by the Court with respect to every single question raised in this regard is that of the lack of arbitrariness. To emphasise the importance of this aspect, the Court has explicitly equated the rule of law with the lack of arbitrariness in a number of judgments.78 Therefore, the cornerstone of ensuring respect for human rights in accordance with the rule of law lies in ensuring the protection of the individual from arbitrary action. The jurisprudence of the Court with regard to the previously listed guarantees derived from the rule of law makes an effective contribution to this effort.

77 

Golder v the United Kingdom (n 33) with respect to the right to access to court under Art 6 § 1. Winterwerp v the Netherlands (n 16) (as regards Art 5 of the Convention) and Malone v the United Kingdom (as regards Art 8). 78 See

9 The Rule of Law in the Recent Jurisprudence of the ECJ THOMAS VON DANWITZ*

T

HERE CANNOT BE any doubt that the rule of law is one of the most ­elementary and important features of the European Union and the process of European integration as a whole. Without denying the nature of the integration as a genuinely political process, it is quite obvious that the rule of law is a constitutive factor for the supranational European Union which appears in legal texts as in legal practice as a true cornerstone of the entire construction. The most prominent placing of the rule of law in Article 2 Treaty on European Union (TEU) amongst the values on which the European Union is founded, might serve as a formal basis in the treaties in order to explain the truly essential nature of the rule of law for the establishment of the European Union. The well-known reports of the Commission to the rule of law in accession countries might be another symbolic element of general political visibility in this respect.1 The particular significance of the rule of law for the European Union is explained, better than in any source of legal or judicial nature, in the speech that Walter ­Hallstein gave in March 1962 at the University of Padua on the European Economic Community as a Community of law, in which he stated: This Community was not created by military power or political pressure, but owes its existence to a constitutive legal act. It also lives in accordance with fixed rules of law and its institutions are subject to judicial review. In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliances we have for the first time the rule of law. The European Economic Community is a community of law … because it serves to realize the idea of law.2

*  This text is the short version of an article published in the Fordham International Law Journal, Vol 37 (2014). 1 See, European Commission, Communication on Enlargement Strategy and Main Challenges 2013–2014, COM(2013) 700 final, 6–8 and the individual accession country reports, eg, Commission Staff Working Document, Albania 2013 Progress Report, SWD(2013) 414 final, 5–10; Commission Staff Working Document, Serbia 2013 Progress Report, SWD(2013) 412 final, 6–10; Commission Staff Working Document, Turkey 2013 Progress Report, SWD(2013) 417 final, 5–13. 2 See W Hallstein, ‘Die EWG—Eine Rechtsgemeinschaft. Rede anlässlich der Ehrenpromotion’ (Universität Padua, 12 March 1962) in T Oppermann (ed), W Hallstein, Europäische Reden (Stuttgart,

156  Thomas von Danwitz On the basis of this historical perspective, Hallstein reached the conclusion which until today appears to be a most exquisite portrayal of the nature of the treaties: The founding treaty, which may not be terminated, forms a kind of a Constitution for the Community which contains rules on the establishment, composition, tasks, competences and interaction of the institutions of the Community as well as their relations with the Member States and the Community citizens … But Community law not only grants powers to the Commission and the Council; at the same time, it provides for the restriction and limitation of these powers. The observance of these limits is ensured by the judicial review, which is entrusted to the European Court of Justice. The Court reviews the legality of acts of the Council and the Commission and provides legal protection in the field of Community law not only for Member States but also for Community citizens.3

But as it is the case with other fundamental constitutional principles which have soon found general recognition, the real challenge with which the rule of law is confronted in practice is not a lack of acceptance or a sentiment of hidden regret. It is rather the seemingly self-evident respect of the rule of law in western democracies, which goes somehow strangely along with the feeling that one does not need to be engaged for a legal principle which is as obvious as the rule of law and therefore does not require our principal attentiveness. Of course, nothing is more profoundly wrong and dangerous than this kind of reasoning, which is in full contrast with the general experience which the judiciary has made throughout the western world. Whether you take the practice of the US Supreme Court or of the Austrian Constitutional Court on the national level or of the European Court of Human rights or of the European Court of Justice (ECJ) on the supranational level, the experience is essentially identical in the sense that the democratic process does not offer sufficient and sufficiently effective guarantees against an abuse of power. If the king was said to do no wrong, governments and legislators in democratic systems certainly can do wrong and, based upon our experience, will do so. This is why it is and will remain a continued task of the judiciary to ensure the respect of the rule of law. In the European Union, this is in principle no different than in its Member States, but it is of course subject to a significant number of specific considerations in the respective contexts in which the scrutiny of the ECJ intervenes.

I.  RECENT JURISPRUDENCE OF THE ECJ ON THE RULE OF LAW

It should not be too much of a surprise that the recent jurisprudence of the ECJ on the rule of law was not triggered by the deviant behaviour of Member States which is, as we will see later on, undoubtedly in need of a reinforcement of the rule of

Deutsche Verlags-Anstalt, 1979) 341, 343–44 (translation by the author since an authorised translation into English is not available). 3 

ibid, 344.

The Rule of Law in Recent ECJ Jurisprudence 157 law. The recent jurisprudence of the Court on the rule of law was rather provoked by the institutions of the EU and, more generally, by what has become famous as the ‘war against terror’. It was the mechanism of the so-called smart sanctions which the Security Council of the United Nations used, inter alia, against private individuals and associations, which has given rise to the question how the right of defence would and could be ensured in a situation in which the EU was charged to implement the sanctions binding under the UN Charter. In the landmark decision in the joined cases Kadi and Al Barakaat,4 the Court already recognised in 2008 the necessity for a full judicial review of such implementation measures of UN sanctions on grounds of fundamental rights granted by the legal order of the Union. The ECJ emphasised that the EU is based on the rule of law inasmuch as neither the Member States nor its institutions can avoid review of the conformity of their acts with the treaty understood as a ‘basic constitutional charter’, which enables the ECJ to review the legality of acts of the institutions, even if those acts are undertaken in fulfilment of obligations resulting from international agreements.5

A.  Effective Judicial Protection Against Restrictive Measures On the basis of that truly fundamental component of the rule of law, the Court had to further develop the requirements of judicial control under the c­ ircumstances 4  Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International ­ oundation v Council and Commission [2008] ECR I-6351 [281]. The legal comments relating to this F judgment are abundant, see eg, M Kotzur, ‘Kooperativer Grundrechtsschutz in der Völkergemeinschaft’ (2008) 35 Europäische Grundrechte Zeitschrift 673; P Cassia and F Donnat, ‘Terrorisme international et droits fondamentaux: les leçons du droit communautaire’ (2008) 24 Revue Française de Droit Administratif 1204; R Kolb, ‘Le contrôle de Résolutions contraignantes du Conseil de sécurité des Nations Unies sous l’angle du respect du jus cogens’ (2008) 18(5) Revue suisse de droit international et européen 401; JA Kämmerer, ‘Das Urteil des Europäischen Gerichtshofes im Fall “Kadi”: Ein Triumph der Rechtsstaatlichkeit?’ (2009) 44(1) Europarecht 114; JP Jacqué, ‘Primauté du droit international versus protection des droits fondamentaux’ (2009) 45(1) Revue trimestriel de droit européen 161; K ­Schmalenbach, ‘Bedingt kooperationsbereit: Der Kontrollanspruch des EuGH bei gezielten Sanktionen der Vereinten Nationen’ (2009) 64(1) JuristenZeitung 3; S Griller, ‘Die Bindung der Europäischen Union an das Recht der Vereinten Nationen unter besonderer Berücksichtigung der Rechtswirkungen von Beschlüssen des Sicherheitsrates im Unionsrecht’ (2012) Zeitschrift Europa­ recht, Beiheft 2, 103; G Harpaz, ‘Judicial Review by the European Court of Justice of UN “Smart Sanctions” Against Terror in the Kadi Dispute’ (2009) 14 European Foreign Affairs Review 65; G De Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal 44; A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’ in AM Salinas de Frías, K Samuel and N White (eds), Counter-Terrorism, International Law and Practice (Oxford, Oxford University Press, 2012) 83; C Tomuschat, ‘The Kadi Case: What Relationship is there between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?’ (2009) 28 Yearbook of European Law 654; F Fabbrini, ‘The Role of the Judiciary in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the United States Supreme Court and the European Court of Justice’ (2009) 28 Yearbook of European Law 664. 5 See Joined Cases C-402/05 P and C-415/05 P Kadi [2008] ECR I-6351, [285]; Joined Cases C-399/06 P and C-403/06 P Faraj Hassan v Council and Chafiq Ayadi v Council [2009] ECR I-11393, [71]; Case C-548/09 P Bank Melli Iran v Council [2001] ECR I-11381, [105]; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi EU:C:2013:518, [66–67].

158  Thomas von Danwitz of the war against terror in the case of ZZ concerning a decision to refuse entry to a Union citizen to the United Kingdom on imperative grounds of public security, which were essentially based on ‘closed evidence’ and had, in accordance with national law, not been disclosed to ZZ.6 Under those circumstances, the reference to the Court focused on the requirements of effective judicial protection and, in particular, on whether the essence of the grounds must be disclosed to the Union citizen concerned by such a decision. However, the Court noted that it may prove necessary not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security. If, in exceptional cases, reasons of State security are invoked to refuse full disclosure of grounds which constitute the basis of a decision taken under Directive 2004/38, the national court must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle.7 The national courts with jurisdiction in that area must carry out an independent examination of all matters of law and fact relied upon by the competent national authority and must determine whether State security stands in the way of such disclosure.8 If it turns out that State security in fact does stand in the way of precise and full disclosure, judicial review has to be carried out in a procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary.9 In the Kadi II judgment concerning again the ‘blacklisting’ of individuals under the circumstances of the war against terror, the Court transposed the essential requirements developed in ZZ to the freezing of economic resources on the basis of the inscription in a list drawn up by the Sanction’s Committee of the United Nations.10 On that basis, the Court went on to examine the different reasons on which Mr Kadi had been listed and concluded whether those were sufficiently detailed and specific to allow for an effective defence.11 Taking the comments of Mr Kadi into account, the Court concluded that none of the allegations presented

6  See Case C-300/11 ZZ v Secretary of State for the Home Department EU:C:2013:363, [24, 28–32, 40–44]. 7  Case C-300/11 ZZ (n 6) [57]; Joined Cases C-402/05 P and C-415/05 P Kadi [2008] ECR I-6351, [344]. 8  Case C-300/11 ZZ (n 6) [61–62]. 9  ibid [64]. 10  Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi (n 5) [100–01] (with reference to ZZ, [51, 53]) and [120, 125–29] (with reference to ZZ, [54, 57, 59, 61–64 and 67]). 11  Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi (n 5) [143–49].

The Rule of Law in Recent ECJ Jurisprudence 159 against Mr Kadi in the summary provided by the Sanctions Committee were such as to justify the adoption of restrictive measures on the level of the European Union against him, either because the statement of reasons was insufficient or because information or evidence which might have substantiated the reason concerned was lacking.12 It should still be noted that the Court is, indeed, pursuing a balanced approach to the scrutiny of restrictive measures taken in the context of the fight against terrorism as it follows notably from the judgments in Al-Aqsa13 and Kala Naft.14

B.  Legislative Discretion and Judicial Scrutiny While the recent jurisprudence of the ECJ on effective judicial protection is ­recognisably marked by the impetus which the entry into force of the Charter of Fundamental Rights has brought about, the recent jurisprudence on the rule of law also relates to questions of a general nature and, in particular, to an ‘eternal’ question of any system of constitutional justice: the interrelation between legislative discretion and judicial scrutiny and, more precisely, the way in which the Court operates its control and how it respects the discretion which is attributed to the legislator in any constitutional democracy. According to the settled case law, the Court acknowledges that the legislator of the European Union enjoys a broad discretion where its action involves political, economic and social choices requiring complex assessments and evaluations.15 In respect of the judicial review of compliance with the principle of proportionality, in these fields of broad legislative power, the lawfulness of a measure adopted can be affected only if the measure is manifestly inappropriate, having regard to the objective pursued. However, the legislature must base its choice on objective criteria, taking into account all the facts and data available at the time of the adoption of the Act in question and all the interests involved. Also, the exercise of the legislator’s discretion must not produce results that are manifestly less appropriate than those produced by other suitable measures.16 Where the future effects of rules to be adopted cannot be accurately foreseen, the legislature’s assessment

12 

ibid [163]. See Joined Cases C-539/10 P and C-550/10 P Al-Aqsa v Council EU:C:2012:711. 14  See Case C-348/12 P Council v Manufacturing Support & Procurement Kala Naft EU:C:2013:776. 15  See Case C-127/07 Arcelor Atlantique et Lorraine ea v Premier ministre, Ministre de l’Écologie et du Développement durable and Ministre de l’Économie, des Finances et de l’Industrie [2008] ECR I-9895, [57]; Case C-344/04 IATA and ELFAA v Department for Transport [2006] ECR I-403, [80]. 16  Case C-127/07 Arcelor Atlantique et Lorraine [2008] ECR I-9895, [58–59]; Joined Cases C-96/03 and C-97/03 Tempelman and van Schaijk v Directeur van de Rijksdienst voor de keuring van Vee en Vlees [2005] ECR I-1895, [48]; Case C-504/04 Agrarproduktion Staebelow v Landrat des Landkreises Bad Doberan [2006] ECR I-679, [37]; Case C-331/88 Fedesa and Others [1990] ECR I-4023, [15–17]; Case C-86/03 Greece v Commission [2005] ECR I-10979, [96]. 13 

160  Thomas von Danwitz is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question.17 However, the legislature is obliged, under certain circumstances, to consider the need for a review of the adopted measures.18 As it appears from this jurisprudence, the ECJ does not issue a blank check to the EU legislature and operates various differentiations which allow for a wellbalanced approach to this matter. In the Vodafone case, the Court placed much emphasis on the impact assessment which the Commission had presented in relation to the legislative proposal under scrutiny of the Court19 in order to verify the rationality of the assessments operated in the legislative procedure. In doing so, the ECJ not only contributes to the success of the EU’s initiative for a ‘better ­legislation’,20 but adopts a properly balanced approach between legislative discretion and judicial scrutiny.

C.  Balancing Fundamental Rights The recent jurisprudence of the ECJ has not only demonstrated a reasonable ­reinforcement of the intensity of its scrutiny in general, but indicates in particular that the principle of proportionality has lately received enhanced attention.21 According to settled case law, the principle of proportionality requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately

17 Case C-101/12 Schaible v Land Baden-Württemberg EU:C:2013:661, [50]; Case C-504/04 Agrarproduktion Staebelow v Landrat des Landkreises Bad Doberan [2006] ECR I-679, [38]; Case C-309/10 Agrana Zucker Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft [2011] ECR I-7333, [45]. 18  See Case C-127/07 Arcelor Atlantique et Lorraine [2008] ECR I-9895, [62]; Case C-101/12 ­Schaible (n 17) [92]. 19  Case C-58/08 Vodafone v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, [5, 55, 58 and 65]. 20  As for the action of the European Commission for improving the quality, effectiveness and simplicity of EU legislation, see eg, European Commission, European Governance. A White Paper, 25 July 2001, COM(2001) 428 final, 18; Communication of 5 June 2002, Action Plan ‘Simplifying and improving the regulatory environment’, COM(2002) 278 final; Communication of 6 June 2002, European Governance: better lawmaking, COM(2002) 275 final; Communication of 11 February 2003, Updating and simplifying the Community acquis, COM(2003) 71 final. In a Communication of 12 December 2012, EU Regulatory Fitness, COM(2012) 746 final, the European Commission committed to strengthening the existing smart regulation tools (impact assessment, evaluation, stakeholder consultation) and launched the Regulatory Fitness and Performance Programme (REFIT), aiming at identifying regulatory burdens, gaps and inefficient or ineffective measures as well as possibilities for simplification or repeal. Since 1992, the European Commission has been publishing an annual report on Better lawmaking, covering also subsidiarity and proportionality, see eg Annual Report 2012 on Subsidiarity and Proportionality, 30 July 2013, COM(2013) 566 final. 21  See Case C-58/08 Vodafone [2010] ECR I-4999; Case C-343/09 Afton Chemical v Secretary of State for Transport [2010] ECR I-7027; Case C-283/11 Sky Österreich v Österreichischer Rundfunk EU:C:2013:28; Case C-101/12 Schaible (n 17); as well as Joined Cases C-92/09 and C-93/09 Schecke and Eifert v Land Hessen [2010] ECR I-11063.

The Rule of Law in Recent ECJ Jurisprudence 161 pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.22 The Court carefully enhanced the intensity of its scrutiny in recent judgments with respect to any disproportionate nature of an obligation imposed on individuals insofar as it has to verify whether the legislature has met its obligation to strike a balance between the different interests at issue23 and, in particular, whether the requirements arising from those different rights and freedoms have been carried out in order to reconcile them and to strike a fair balance between them.24 In Digital Rights Ireland and Seitlinger and Others,25 the ECJ only very recently declared the Data Retention Directive 2006/24 to be invalid, holding that the retention of the entire electronic telephony and internet traffic data of virtually all users in the European Union is a disproportionate measure for attaining the objective of public security. The ECJ explicitly stated that in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life as laid down in Articles 7 and 8 of the Charter, and regarding the extent and seriousness of the interference caused by the Data Retention Directive, the EU legislature’s discretion is reduced and judicial review has to be strict.26 The Court acknowledged that the fight against crime and terrorism is undisputedly of utmost importance and pointed out that everybody’s right to security is laid down in Article 6 of the Charter. However, even such a fundamental objective of general interest does not, in itself, justify the retention measures such as those established by the Directive. On the contrary, the ECJ regarded the retention measures to be disproportionate, since the Directive does not require any relationship between the data whose retention was provided for and a threat to public security. In particular, the Directive is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences. Furthermore, the Directive does not provide any exceptions as to the persons concerned, with the result that it applies even to persons whose communications are subject to the obligation of ­professional secrecy.27 22  See Case C-343/09 Afton Chemical [2010] ECR I-7027, [45]; Case C-283/11 Sky Österreich (n 21) [50]; Case C-101/12 Schaible (n 17) [29]. 23 See Joined Cases C-92/09 and C-93/09 Schecke and Eifert [2010] ECR I-11063, [77]; Case C-283/11 Sky Österreich (n 21) [59]; Case C-101/12 Schaible (n 17) [60]. 24 See Case C-275/06 Promusicae v Telefónica de España SAU [2008] ECR I-00271, [65–66]; Case C-544/10 Deutsches Weintor eG v Land Rheinland-Pfalz EU:C:2012:526, [47]; Case C-283/11 Sky Österreich (n 21) [60]. 25 See Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others v ­Minister for Communications, Marine and Natural Resources and Others EU:C:2014:238. 26  See ibid [48]. 27  See ibid [57–59].

162  Thomas von Danwitz In addition, the Directive fails to lay down any objective criterion which could ensure that the competent national authorities have access to the data and can use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that may be considered to be sufficiently serious to justify such interference.28 Also, the retention period of a minimum of six months and a maximum of 24 months does not distinguish between categories of data and their potential usefulness for the purpose of public security and is not based on objective criteria in order to ensure that it is limited to what is strictly necessary.29 Moreover, the Directive also lacks sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and any unlawful access. In this context, the Court added that the Directive did not require the data in question to be retained within the European Union, with the result that control of compliance with the requirements of protection and security by an independent authority, as required by Article 8 paragraph 3 of the Charter, was not fully ensured. Such control, carried out on the basis of EU law, is regarded by the ECJ as an essential component of the protection of individuals with regard to the processing of personal data.30 In the main proceedings of Seitlinger and Others, involving several actions brought before the Austrian Constitutional Court by Mr Seitlinger and other applicants, the Austrian Constitutional Court has now annulled the Austrian Law on telecommunications transposing the Directive 2006/24, holding that they violated the fundamental right to data protection and the right to respect for private and family life.31

II.  ENSURING THE RESPECT OF THE RULE OF LAW BY MEMBER STATES OF THE EUROPEAN UNION

The foregoing observations on the recent jurisprudence of the ECJ relating to the rule of law quite clearly indicate that ensuring the rule of law offers more than enough challenges to the Court—even without considering the field of application, which first comes to mind when the rule of law is mentioned in the context of European Union law and the process of European legal integration: the observance of the rule of law by the Member States of the European Union. Taken as such, this subject covers the entire question of compliance of Member States with EU law and, in particular, the requirements resulting from the obligation to ensure a complete transposition of EU directives. In that respect, the

28 

See ibid [60–62]. See ibid [63–64]. See ibid [66–68]. 31  See Cases C-47/12 Verfassungsgerichtshof Österreich and Others, decision of 27 June 2014, press release available at: www.vfgh.gv.at (27.06.2014). 29  30 

The Rule of Law in Recent ECJ Jurisprudence 163 recent C ­ ommission’s 30th Annual Report on monitoring the application of EU law (2012) of 22 ­October 2013 gives an overview of the observance of EU law in general and by each ­Member State.32

A.  Actual Context In recent years, the observance of the rule of law by Member States of the EU has primarily been discussed in the context of the public perception that the political evolution in a particular Member State might be in contradiction with the values of the Union enshrined in Article 2 TEU.33 In the actual discussion, reference has in particular been made to Hungary34 and recently to Romania,35 but studies have shown that the situation relating to certain fundamental freedoms appears troublesome even in well-established Member States.36 Beyond all difficulties to find common ground for an adequate evaluation of the respective situations and for the acceptance of the acting institutions, such as the Venice Commission,37 32  The Commission reports annually on the national implementation of EU law, see eg, European Commission, 30th Annual Report on monitoring the application of EU law (2012) of 22 October 2013, COM(2013) 726 final, including as Parts I and II, specific reports on the Situation per Member State, Commission Staff Working Document, SEC(2013) 432 final, and the Situation per policies, Commission Staff Working Document, SEC(2013) 433 final; 29th Annual Report on monitoring the application of EU law (2011) of 30 November 2012, COM(2012) 714 final, including specific reports on the Situation per Member State and the Situation per policies, Commission Staff Working Documents, SEC(2012) 399 final and SEC(2012) 400 final. 33  The so-called ‘Haider Affair’ was giving rise to that discussion, see eg P Cramér and P Wrange, ‘The Haider Affair, Law and European Integration’ (2001) 4(1) Europarattslig Tidskrift 28 ff; G Fox and G Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal 1; W Hummer and A Pelinka, Österreich unter ‘EU-Quarantäne’ (Wien, Linde Verlag, 2002); C Leconte, ‘The Fragility of the EU as a “Community of Values”: Lessons from the Haider Affair’ (2005) 28 West European Politics 620 ff; LS Rossi, ‘La “reazione commune” degli Stati membri dell’Unione europea nel caso Haider’ (2000) 83 Rivista di Diritto Internazionale 151; H Schmitt von Sydow, ‘Liberté, démocracie, droits fondamentaux et Ètat de droit: analyse de l’article 7 du traité UE’ (2001) 11 Revue du Droit de l’Union Européenne 285. 34  See C Hemler, ‘Europäische Kommission v Ungarn’ (VSR Europa Blog, 10 January 2012) www. vsr-europa.blogspot.com/2012/01/europaische-kommission-vs-ungarn.html; M Müller, ‘Demokratie in Ungarn: Zeit für eine neue Grundrechtedoktrin des Europäischen Gerichtshofs?’ (Der (europäische) Föderalist, 22 February 2012) www.foederalist.blogspot.com; C Ernst, ‘Verfahren nach Artikel 7 EUV gegen Ungarn einleiten’ (Die Linke, 18 January 2012) www.dielinke-europa.eu/article/7973. verfahren-nach-artikel-7-euv-gegen-ungarn-einleiten.html; see also European ­ Parliament press release, ‘Hungary must abide by EU values, say MEPs’ (European Parliament News, 03 July 2013) www.europarl.europa.eu/news/en/news-room/content/20130701IPR14768/html/Hungary-mustabide-by-EU-values-say-MEPs. 35  See M Müller, ‘Was tun für den Rechtsstaat in Rumänien?’ (Der (europäische) Föderalist, 17 July 2012) www.foederalist.blogspot.com; E Kanterian and C Arion, ‘Wie die rumänische Regierung die Verfassung “verbessern” will’ (Recht im Kontext, 14 June 2013); and E Kanterian, ‘The Crisis of Democracy in Hungary and Romania—Learning from Weimar?’ (Recht im Kontext, 13 May 2013) both available at www.verfassungsblog.de. 36 T Beichelt, ‘Von Steinen und Glashäusern’ (29 December 2013) 302 Frankfurter Allgemeine ­Zeitung (FAZ) 7. 37  The Venice Commission has delivered in total 12 opinions with regard to Hungary, of which 8 opinions were delivered in 2012: Opinion 683/2012 on the Cardinal Acts on the Judiciary that were

164  Thomas von Danwitz the context of the legal discussion is framed by the inadequacy of the procedure foreseen in Article 7 TEU which clearly cannot be considered as an operational or even suitable instrument to ensure the rule of law in the Member States of the EU and the observance of the values enshrined in Article 2 TEU.38 Therefore, it seems to be generally accepted in the academic literature that the procedure in Article 7 TEU should be modified and ‘sharpened’ in order to make it operational. But since such a modification would require a revision of the treaty, the discussion has focused on other instruments which could practically be made available in due course.39 A new conception of the field of application of the Charter of Fundamental Rights of the European Union, fundamentally different from the one embodied in Article 51 of this Charter, has forcefully been argued for.40 In order to make such a concept workable in practice, a right of the ECJ to certiorari has been mentioned.41 Without going into a profound analysis of the different aspects which certainly will have to be taken into consideration when reflecting upon such a proposition, I wish to limit my remarks to some relatively obvious comments. In the first place, it has to be borne in mind that the European l­andscape is far

amended following the adoption of CDL-AD(2012)001 on Hungary; Opinion 672/2012 on Act CXII of 2011 on informational Self-determination and Freedom of Information; Opinion 671/2012 on the Act on the Rights of Nationalities; Opinion 668/2012 on Act CLXIII of 2011 on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career; Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court; Opinion 664/2012 on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities; Opinion 663/2012 on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts; Joint Opinion 662/2012 on the Act on the Elections of Members of Parliament of Hungary. As for Romania, the Venice Commission has delivered in total 9 opinions, one opinion in 2012: Opinion 685/2012 on the compatibility with Constitutional principles and the Rule of Law of actions taken by the Government and the Parliament of Romania in respect of other State institutions and on the Government emergency ordinance on amendment to the Law No 47. The opinions of the Venice Commission are available at www.venice.coe.int/WebForms/documents/ by_opinion.aspx. 38  See eg, A von Bogdandy, C Antpöhler, J Dickschen, S Hentrei, M Smrkolj and M Kottmann, ‘Reverse Solange—Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 CML Rev 489, 491, 496–507; S Carrera, E Guild and N Hernanz, ‘The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU. Towards an EU Copenhagen ­Mechanism’ (CEPS Briefing Paper for the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, November 2013) 6, www.ceps.eu/book/rule-law-or-rule-thumb-new-copenhagenmechanism-eu; S Greer and A Williams, ‘Human Rights and the Council of Europe and the EU. Towards “Individual”, “Constitutional” or “Institutional” Justice?’ (2009) 15 European Law Journal 462, 474; and for a critique of Art 7 TEU, following the example of the Iraq War, A Williams, ‘The Indifferent Gesture: Article 7 TEU, the Fundamental Rights Agency and the UK’s Invasion of Iraq’ (2006) 31 EL Rev 1. 39  See von Bogdandy, Antpöhler, Dickschen, Hentrei, Smrkolj and Kottmann, ibid 489, 508 ff. 40  The ‘reversed Solange’ approach of A von Bogdandy, see eg, von Bogdandy, Antpöhler, Dickschen, Hentrei, Smrkolj and Kottmann, ibid 489, 508 ff; A Jakab, ‘Supremacy of the EU Charter in National Courts in purely domestic Cases’ (Verfassungsblog, 27 March 2013) www.verfassungsblog.de. 41  See in a more general context T Kennedy, ‘First Steps towards a European Certiorari’ (1993) 18 EL Rev 121; P Jeney, ‘Victim of its Own Success—The EU Court in Need of Reform’ (academia, 2010) www.academia.edu/1078276/Victim_of_Its_Own_Success_the_EU_Court_in_Need_of_Reform.

The Rule of Law in Recent ECJ Jurisprudence 165 from being homogenous when it comes to the respect for the rule of law and for fundamental rights by individual Member States. In such a situation, an extensive reading of Article 51 of the Charter—although possibly welcomed by some Member States as a European support for the respect of the rule of law and in particular of fundamental rights—would not only run counter to the Article’s wording and meaning as it results from the genesis and the general structure of Article 51 and 52 of the Charter,42 but it would undoubtedly be considered as an unjustified ‘intervention’ in other Member States in which it is considered as a ‘sovereign’ prerogative of the national constitutional court to ensure the observance of the rule of law and the fundamental rights enshrined in the national constitution. Therefore, such an approach would inevitably lead to an enhanced institutional controversy between the ECJ and national constitutional courts and, not to forget, the Strasbourg Court. Despite a number of ‘invitations’ addressed to the Court in that respect from national courts, the ECJ has so far refrained from an extensive reading of Article 51 as is demonstrated by quite an impressive number of court orders declining its jurisdiction.43

42  See T von Danwitz and K Paraschas, ‘A Fresh Start for the Charter: Fundamental Questions on the Application of the European Charter of Fundamental Rights’ (2012) 35 Fordham International Law Journal 1396, 1399 ff; A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ (2012) 4 Jurisprudencija, Mykolas Romeris University 1269; K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) European Constitutional Law Review 375; T Kingreen, ‘Ne bis in idem: Zum Gerichtswettbewerb um die Deutungshoheit über die Grundrechte’ (2013) 48(4) Europarecht 446. 43  See Case C-287/08 Savia and Others v Ministero dell’Istruzione, dell’Università e della Ricerca and Others [2008] ECR I-136; Case C-535/08 Pignataro v Ufficio centrale circoscrizionale presso il Tribunale di Catania and Others [2009] ECR I-50; Case C-333/09 Noël v SCP Brouard Daude and Centre de Gestion et d’Étude AGS IDF EST [2009] ECR I-205; Case C-16/12 Hermes Hitel v Nemzeti Földalapkezelő Szervezet EU:C:2012:426; Case C-482/10 Cicala v Regione Siciliana EU:C:2011:868; Case C-328/04 Attila Vajnai [2005] ECR I-8577; Case C-361/07 Polier v Najar [2008] ECR I-6; Case C-104/08 Kurt v Bürgermeister der Stadt Wels [2008] ECR I-97; Case C-339/10 Asparuhov Estov and Others v Ministerski savet na Republika Bulgaria [2010] ECR I-11465; Case C-457/09 ­Chartry v État belge [2011] ECR I-819; Joined Cases C-267/10 and C-268/10 Rossius and Collard v État belge [2011] ECR I-81; Case C-161/11 Vino v Poste Italiane [2011] ECR I-91; Case C-314/10 Pagnoul v État belge [2011] ECR I-00136; Case C-538/10 Lebrun and Howet v État belge [2011] ECR I-00137; Case C-462/11 Cozman v Teatrul Municipal Târgovişte EU:C:2011:831; Joined Cases C-483/11 and C-484/11 Boncea and Others v Statul roman [2011] ECR I-0198; Case C-434/11 Corpul Naţional al Poliţiştilor v Ministerul Administraţiei şi Internelor (MAI) and Others [2011] ECR I-0196; Case C-27/11 Vinkov v Nachalnik Administrativno-­ nakazatelna deynost EU:C:2012:326; Case C-466/11 Currà and Others v Deutschland EU:C:2012:465; Case C-134/12 Ministerul Administraţiei şi Internelor (MAI) and Others v Corpul Naţional al Poliţiştilor EU:C:2012:288; Case C-369/12 Corpul Naţional al Poliţiştilor v Ministerul Administraţiei şi Internelor, Inspectoratul General al Poliţiei Române, Inspectoratul de Poliţie al Judeţului Braşov EU:C:2012:725; Case C-498/12 Antonella Pedone v N EU:C:2013:76; Case C-499/12 Gentile v Ufficio Finanziario della Direzione Ufficio Territoriale di Tivoli and Others EU:C:2013:77; Case C-312/12 Ajdini v État belge EU:C:2013:103; Case C-178/12 Rivas Montes v Instituto Municipal de Deportes de Córdoba (Imdeco) EU:C:2013:150; Case C-128/12 Sindicato dos Bancários do Norte and Others v BPN Norte EU:C:2013:149; Joined Cases C-614/12 and C-10/13 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal and Csilla Sajtos v Budapest Főváros VI. Ker. Önkormányzata EU:C:2014:30; Case C-332/13 Weigl v Nemzeti Innovációs Hivatal EU:C:2014:31; Case C-258/13 Sociedade Agrícola e Imobiliária da Quinta de S. Paio Lda v Instituto da Segurança Social IP EU:C:2013:810;

166  Thomas von Danwitz This prudent policy of institutional self-restraint is not only motivated by a well-balanced concept of a mutual respect for the jurisdiction both of national constitutional courts and the basic objective of the Strasbourg system and the preservation of its integrity, but also reflects in particular a realistic selfunderstanding­of the role attributed to the Court by the treaties of the European Union. Notably, it reflects a keen sense for the legitimacy of the Court and its limits which even after 60 years of European integration may still not be compared to the legitimacy of national supreme or constitutional courts.44 In any event, an extensive interpretation of Article 51 of the Charter would inevitably lead to a fundamental shift in the multilayered system of judicial protection between Member States, the European Union and the ECJ and the conventional system of the Strasbourg Court, which might be perceived as largely duplicating the Strasbourg system and in the end bear the risk to jeopardise its very existence, at least for the Member States of the EU. In so far as the problem to cure results from a deficient observance of the rule of law and fundamental rights beyond the field of application of European Union law, given the historic mission of the Strasbourg system, it would seem logical to enhance its proper effectiveness. As understandable as it might be to foster the respect for the rule of law and fundamental rights by an application of the instruments resulting from EU law,45 it should in the end not be forgotten that this cure might only be made available for EU Member States. Therefore, such an approach would, in the long run, leave ‘what’s left’ to the Strasbourg system and make it increasingly difficult to maintain the effectiveness and authority of this system which is much more in need of it than judicial protection elsewhere in Europe.

Case C-371/13 Schuster & Co Ecologic SRL v Direcţia Generală a Finanţelor Publice a Judeţului Sibiu— Activitatea­de Inspecţie Fiscală EU:C:2013:748; Case C-224/13 Sergio Alfonso Lorrai EU:C:2013:750; Joined Cases C-488/12 to C-491/12 and C-526/12 Sándor Nagy v Hajdú-Bihar Megyei Kormányhivatal and Others EU:C:2013:703; Case C-14/13 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite raboti EU:C:2013:374; Case C-73/13 T EU:C:2013:299; Case C-106/13 Francesco Fierro and Fabiana Marmorale v Edoardo Ronchi and Cosimo Scocozza EU:C:2013:357; Case C-555/12 Claudio Loreti and Others v Comune di Zagarolo EU:C:2013:174; Case C-206/13 Cruciano Siragusa v Regione Sicilia—Soprintendenza Beni ­Culturali e Ambientali di Palermo EU:C:2014:126. 44  T von Danwitz, ‘Verfassungsrechtliche Herausforderungen in der jüngeren Rechtsprechung des EuGH’ (2013) 44(10–12) Europäische Grundrechte Zeitschrift 253. 45  An approach which the Court has firmly rejected so far, see Case C-571/10 Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others EU:C:2012:233; and Case C-617/10 Åklagaren v Åkerberg Fransson EU:C:2013:280. See C Ladenburger, ‘European Union Institutional Report’ in J Laffranque (ed), Reports of the XXV FIDE Congress Vol 1 (Talinn, Tartu ­University press, 2012) 141 ff, 183 ff; C Ladenburger, in PJ Tettinger and K Stern (eds), Europäische Grundrechte-Charta (2006) Art 52, paras 80 ff, in particular paras 85 ff; von Danwitz and Paraschas (n 42) 1396 ff, 1410 ff; see also M Borowsky in Meyer (ed), Charta der Grundrechte der Europäischen Union (2011) 3rd edn, Art 51, paras 33 ff; Lenaerts (n 42) 375 ff, 399 ff.

The Rule of Law in Recent ECJ Jurisprudence 167 B. The Role of the ECJ in Ensuring the Respect of the Rule of Law by EU Member States In recent years as much as in the past, the Court has been confronted with alleged infringements of EU law by all Member States, although the number of infringement proceedings brought before the Court is currently declining.46 The public debate on the political and constitutional evolution of some Member States and in particular Hungary should not lead to the erroneous conclusion that it is only these Member States which are at the origin of proceedings relating to an alleged inobservance of the rule of law. It should rather be borne in mind that even for well-established Member States the record on the observance of the rule of law is not beyond doubt.47 But, of course, the Court has recently been confronted with cases relating to the political and constitutional evolution in Hungary and has made its contribution to ensure the respect of the rule of law in this country. i.  Impressions of an Ongoing Integration Process The Court was confronted with an application by Hungary to find, in essence, that the Slovak Republic had failed to fulfil its obligations under EU law in not allowing Hungarian President Sólyom to access Slovak territory on 21 August 200948 for taking part in a ceremony to inaugurate a statue of Saint Stephen, the founder and first king of the Hungarian State. 21 August is considered to be a sensitive date in Slovakia, since it was on 21 August 1968 that the armed forces of five Warsaw pact countries, which included Hungarian troops, invaded the Czechoslovak Socialist Republic. With respect to the obligation resulting from the citizenship of the Union, the Court held that the right for all Union citizens to move and reside freely within the territory of the Member States is subject to limitations resulting from international law applicable to the status of Mr Sólyom as Hungarian Head of State.49 The Court found as well that the refusal of the Slovak Republic

46  According to the Annual Report 2012 of the Court, the number of infringement proceedings brought before the Court has been constantly declining from 207 new cases in 2008 to 58 new cases in 2012, see European Court of Justice of the European Union, Annual Report 2012, 97. 47  Beichelt (n 36) 7. In 2012, 20 new infringement procedures against the six founding Member States have been brought to the Court: two against Belgium, seven against Germany, respectively five against France and Italy and respectively one against Luxembourg and the Netherlands, European Court of Justice of the European Union, Annual Report 2012, 97. In the same period, five judgments have been delivered against Belgium, four against France, one against Germany, two against Italy and three against the Netherlands, see European Commission, 30th Annual Report on monitoring the application of EU law (2012) of 22 October 2013, COM(2013) 726 final, 20, 27, 28, 32, 35 and 37; see eg Case C-577/10 Commission v Belgium EU:C:2012:814; Case C-164/11 Commission v France EU:C:2012:665; Case C-574/10 Commission v Germany EU:C:2012:145; Case C-565/10 Commission v Italy EU:C:2012:476; C-542/09 Commission v Netherlands EU:C:2012:346. 48  Case C-364/10 Hungary v Slovak Republic EU:C:2012:630. 49  See ibid [43–44].

168  Thomas von Danwitz to allow the President of Hungary access to its territory did not come under the concept of the abuse of rights as defined in the case law of the Court.50 If this case does not reveal important legal insight, the political incident on which it is based shows distinctively to the contrary that the importance of good neighbourly relations and mutual understanding of the delicate nature of historical events does not constitute an acquis to the same degree common to all Member States of the European Union. A comparable sentiment was raised by a request for a preliminary ruling referred to the Court from a Hungarian Court of First Instance concerning, in substance, the question as to whether the conditions under which a special tax had been levied between 2010 and 2012 was constitutive of a disguised discrimination of foreign-owned undertakings.51 ii.  The Recent Constitutional Evolution in Hungary under Review by the ECJ The recent constitutional evolution of Hungary has been the subject of two infringement procedures brought by the European Commission.52 The first one which concerned a national scheme requiring compulsory retirement of judges, prosecutors and notaries on reaching the age of 62 years and spread the flavour of a court-packing plan,53 was decided on the basis of Directive 2000/78 on combating discrimination, inter alia, on grounds of age. The second infringement procedure brought by the European Commission against Hungary concerns national provisions by which the six year term of the data protection supervisor has been terminated before the end of the term in conjunction with the creation of a new national authority on data protection and freedom of information.54 In its judgment, the ECJ pointed out that the requirement to set up independent supervisory authorities on data protection derives from Article 8 paragraph 3 of the Charter and Article 16 paragraph 2 Treaty on the Functioning of the European Union (TFEU) and is thus an essential component of the protection of individuals with regard to the processing of personal data. The Court held that the independence requirement covers the obligation to allow supervisory authorities to serve their full term of office and to have them vacate office before expiry of the full term only in accordance with the rules and

50 

See ibid [53, 58–60]. See Case C-385/12 Hervis Sport- és Divatkereskedelmi EU:C:2014:47, [45]. 52  See Case C-286/12 Commission v Hungary EU:C:2012:687; Case C-288/12 Commission v H ­ ungary EU:C:2014:237. 53 See ME Parrish, The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara, ABC-CLIO Supreme Court Handbooks, 2002) 233–35; RG McColskey, The American Supreme Court 5th edn (­Chicago, The University of Chicago Press, 2010) 113, 116–19; M Ariens, ‘A Thrice-Told Tale, or Felix the Cat’ (1994) 107 Harvard Law Review 620; RD Friedman, ‘Switching Time and other Thought Experiments: The Hughes Court and Constitutional Transformation’ (1994) 142 University of P ­ ennsylvania Law Review 1891. 54  See Case C-288/12 Commission v Hungary (n 52). 51 

The Rule of Law in Recent ECJ Jurisprudence 169 safeguards established by the applicable legislation.55 Hungary failed to fulfil its obligations under Directive 95/46 by compelling the supervisor to vacate office in contravention of the safeguards established by statute, thereby compromising his independence.

III.  ENSURING THE RULE OF LAW—A NEVER ENDING STORY

In conclusion, the rule of law is not a static concept. It grows and changes its profile with the evolution of society due to economic, social, technological and political factors. If we need the respect for strong traditions in ensuring the rule of law, we also need the openness of our minds to properly react to all new evolutions which endanger the rule of law and, thereby, to fully live up to the heritage of our founding fathers:56 in order to finally replace the past striving for a domination of Europe by a rule of law in the European Union common to all its citizens, it is essential to understand the rule of law as a living instrument57 which is shaped according to the challenges ahead.

55 

Case C-288/12 Commission v Hungary (n 52) [55]. See again Hallstein (n 2) 341, 343–44. 57  The living-instrument doctrine is primarily discussed in relation to the Strasbourg Court but formulates a legal reasoning widely shared in continental law traditions, see ECtHR, Tyrer v The United Kingdom (1978) App no 5856/72, § 31, Series A no 26; Soering v the United Kingdom (1989) App no 14038/88, §§ 101 and 102, Series A no 161; Loizidou v Turkey (1995) App no 15318/89, § 71, Series A no 310; Christine Goodwin v The United Kingdom (2002) App no 28957/95 § 74, ECHR 2002-VI; see, in this regard, L Wildhaber, ‘The European Court of Human Rights in action’ (2004) 21 Ritsumeikan Law Review 83, 84 ff; K Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 German Law Journal 1730, 1731 ff; M Kilander, ‘Interpreting Regional Human rights Treaties’ (2010) 13 SUR International Journal of Human Rights 145, 152 ff. For the dynamic interpretation of Union law, see H Kutscher, Thesen zu den Methoden der Auslegung des Gemeinschaftsrechts aus der Sicht eines Richters (Publications Office of the European Union, 1976) 23, 31 ff; A Bredimas, Methods of Interpretation and Community Law (Amsterdam, Elsevier Science Ltd, 1978) 33 ff. For the discussion in comparative constitutional law see M Fromont, Justice constitutionnelle comparée, (Paris, Dalloz, 2013) 270. For the discussion in US constitutional law, see eg WH Rehnquist, ‘The Notion of a Living Constitution’ (2006) 29 Harvard Journal of Law and Public Policy 401 ff; DA Strauss, The Living Constitution (Oxford, Oxford University Press, 2010); JM Balkin, ‘The Roots of the Living Constitution’ (2012) 292 Boston University Law Review 1129. 56 

170

Part IV

Mechanisms of Implementing the Rule of Law in Europe

172

10 Reinforcement of the Rule of Law Oversight in the European Union: Key Options CARLOS CLOSA AND DIMITRY KOCHENOV*

I. INTRODUCTION

I

N THE PAST few years, several EU Member States have faced political changes which resulted in threats to the rule of law and liberal democracy, core v­ alues based on which the EU was established, as outlined in Article 2 of the EU Treaty (TEU). Austria, Greece, Hungary, Poland and also other Member States could provide the cases in point to a varying degree. This poses a particular problem, since scholars and politicians in Europe share the general perception that the EU is currently not properly equipped to deal with such threats. This ­chapter ­discusses the ways to approach this problem.1 This is done without p ­ rejudice to the substantive definitions of the rule of law and the contents of values in ­question—the issue falling outside the scope of this chapter.2

*  The authors are grateful to Martijn van den Brink (EUI) and Suryapratim Roy (Groningen) for research assistance. 1  For a detailed exploration of the options available see C Closa and D Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (Cambridge, Cambridge University Press, 2016). 2  For a comprehensive approach to the rule of law in the EU see eg L Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (2009) Jean Monnet Working Paper No 04/09 (NYU Law School). For a troublesome vision of other values see eg: JHH Weiler, ‘Europa: “Nous coalisons des Etats nous n’unissons pas des hommes”’ in M Cartabia and A Simoncini (eds), La sostenibilità della democrazia nel XXI secolo (Bologna, Il Mulino, 2009) 51; A Williams, The Ethos of Europe (Cambridge, Cambridge University Press, 2010); D Kochenov, G de Búrca and A Williams (eds), Europe’s Justice Deficit? (Oxford, Hart Publishing, 2014). For the analysis of the meaning of the values in the context of Art 2 TEU enforcement, see, A von Bogdandy and M Ioannidis, ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done’ (2014) 51 CML Rev 59. See also A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford, Hart Publishing, 2014); B Bugarič, ‘Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism’ in Closa and Kochenov (n 1). M Dawson and E Muir, ‘Enforcing Fundamental ­Values: EU Law and Governance in Hungry and Romania’ (2012) Maastricht Journal of European and C ­ omparative Law 469.

174  Carlos Closa and Dimitry Kochenov The EU was explicitly established not just to be a community based on common interests of its Member States, but also a community of values, reflected in the way integration progresses, as well as in the ethos of rights and freedoms, which the EU officially embraces and guarantees,3 while demonstrating direct concern for the peoples of Europe.4 In this context it is not surprising that the EU’s credibility and even its very raison d’être—traditionally related, besides economic integration, also to values and rights5—require that it develops the means to face these ­challenges.6 A virtually universal consensus has emerged on the fact that the EU shows a less than brilliant record on the internal enforcement of its own constitutive values. This is definitely the case when dealing with the alleged breaches of the rule of law at the Member State level. This is both due to the EU’s very design— since the powers not explicitly delegated to the EU remain with the Member States,7 the priority in values-promotion has traditionally been confined to the pre-accession/external relations context, leaving the internal rule of law issues to Member States8 themselves—as well as to its day-to-day functioning, where the priority, quite expectedly perhaps, is awarded to the enforcement of the acquis.9 The discussion of these issues, which are of overwhelming importance for the successful future of both the EU and its Member States, requires establishing, first of all, the normative foundation for enhanced EU monitoring and enforcement of the foundational values of Article 2 TEU—with a particular emphasis on the rule of law—in the Member States (I). Then, secondly, the legal basis making the growing EU’s role possible must be identified and scrutinised (II). Once this is done, thirdly, the procedural issues of the day-to-day operation of the EU’s involvement with the values are to be addressed (III). In this context, a clearly-designed

3  See eg, A Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’ (2009) 29 Oxford Journal of Legal Studies 549; C Closa, ‘Deliberative Constitutional Politics and the Turn towards a Norms-Based Legitimacy of the EU Constitution’ (2005) 11 European Law Journal 411. 4  Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse administratie der belastingen [1963] ECR 1 (special English edition); JHH Weiler, ‘The Schuman ­Declaration as a Manifesto of Political Messianism’ in J Dickson and P Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford, Oxford University Press, 2012). 5  G de Búrca, ‘Europe’s raison d’être’ in D Kochenov and F Amtenbrink (eds), European Union’s Shaping of the International Legal Order (Cambridge, Cambridge University Press, 2013) 21. 6  For a general overview of the means of both values’ and acquis’ enforcement, see, A Jakab and D Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member State Compliance (Oxford, Oxford University Press, 2017) forthcoming. 7  Art 4(1) TEU. 8  C Hillion, ‘Enlarging the European Union and Deepening Its Fundamental Rights Protection’ SIEPS European Policy Analysis (2013) 2013/11; D Kochenov, ‘The Issue of Values’ in R Petrov and P Van Elsuwege (eds), The Application of EU Law in the Eastern Neighbourhood of the European Union (London, Routledge, 2014) 46. 9 For a disastrous example (when approached from the rule of law angle) see Case C-286/12 ­Commission v Hungary ECLI:EU:C:2012:687, as analysed by K Lane Scheppele, ‘How to Evade the Constitution: The Hungarian Consitutional Court’s Decision on Judicial Retirement Age, Part II’ Verfassungsblog, 9 August 2012, available online at www.verfassungsblog.de/de/how-to-evade-the-­ constitution-the-hungarian-constitutional-courts-decision-on-judicial-retirement-age-part-ii/#. Uw4Zlvuzm5I. See also, Ǔ Belavusaǔ, ‘Case C-286/12 Commission v Hungary’ (2013) 50 CML Rev 1145.

Reinforcing Rule of Law in the EU 175 ­ rocedure should identify the actors involved, their functions and roles, as well as p the different stages in the process. This chapter outlines concrete options available to the EU with regard to each of the three issues we are concerned with, also explaining what the pros and cons of each of the choices are.

II.  ARGUMENTS IN FAVOUR OF THE RULE OF LAW OVERSIGHT

The general normative argument in favour of the EU’s democratic oversight of its Member States is related, quite simply, to the safeguarding of the core values on which the Union has been established, as set out in Article 2 TEU, which are shared between the EU and the Member States. A more specific answer to the question concerning the reasons behind the EU’s particular role is an analytical process of two stages. The first refers to the nature of the problems existing in some Member States which could (and, presumably, should) be addressed with the help of the actors external to the Member States concerned. The second concerns, specifically, the justification of the EU’s role in dealing—or at least participating in dealing— with those problems.10 In other words, we are dealing with the what? and the why? questions.

A.  The ‘What?’ Question: On the Nature of the Rule of Law Problems at Issue The calls for oversight have emerged in recent years in the context of a number of different events: the participation of an extreme right-wing party in the government in Austria; concentration of the media and political power in Italy; the treatment of EU citizens of Romani ethnicity by France; and the behaviour of political parties enjoying strong majorities in countries like Hungary or Poland, sometimes with a particular reference to the change of the Constitution and the rewriting of hundreds of laws virtually in a fortnight.11 Although possible threats to the rule of law arise in all these Member States, specific situations, especially the most problematic ones, are never perfectly equal. Poland and Hungary in particular are the cases in point. A careful empirical assessment of the exact situation in each country concerned is necessary in order to determine an appropriate response. Looking at the assessment of the outstanding rule of law problems in the media and at times by the international institutions, it is clear that such careful

10 It is crucial to realise that given the EU’s design any EU involvement—as well as its very e­ xistence—is always in need of justification: G Morgan, ‘European Political Integration and the Need for Justification’ (2007) 14 Constellations 332. 11  The well-known Hungarian case provides an illustration of such a possibility: KL ­ Scheppele, ‘The Unconstitutional Constitution’ New York Times, 2 January 2012. For a discussion see ­Verfassungsblog’s special feature Hungary: Taking Action (2013), available online at www.verfassungsblog. de/en/category/focus/hungary-taking-action/#.Uw4a-Puzm5I.

176  Carlos Closa and Dimitry Kochenov empirical assessment, regrettably, does not always underpin the response actions undertaken, as it should. Crucially, important problems emerged both in the ‘old’ and in the ‘new’ Member States. Moreover, the problems we are dealing with do not seem to be confined to a particular region. It is abundantly clear, that no country can be per se immune from the concerns we are dealing with. The key point is to be able to distinguish with abundant clarity between two radically different sets of issues. On the one hand, there are problems amounting to nothing else but careless use of the law or abuses of political power—something that can and will be corrected with time through the functioning of the relevant Member States’ own democracies. On the other hand, there are problems of such a profound and fundamental nature, that the Member States’ own legal and political systems are overwhelmingly unlikely to be in the position to right the wrongs concerned in the near- to long-term future. Consensus among scholars seems to point in the direction of limiting the EU’s possible involvement to the second set of problems outlined above.12 Indeed, mingling with the first will be nothing but an outright ultra vires act by the Union.13 The fact that Article 2 TEU as well as other values-relevant instruments to be discussed infra are not about micro-management and are only aimed at addressing the gravest concerns is evident. Yet, how do we draw the line between the first and the second type of problems outlined? While a general sense of unease about certain constitutional developments in a Member State is an insufficient factor to propose a classification of a particular problematic issue—or, indeed, even to establish its very existence—there are ways to go beyond the general vagueness on this issue. Three profoundly interrelated criteria could be employed as key signs of which kind of problems we are witnessing. The first is Jan-Werner Müller’s ‘constitutional capture’14—a problem, which was spreading through the region and beyond the EU as well, also characterised as unconstitutional constitutionalism or a constitutional coup d’État: a profound reshuffling and abuse of power through perfectly legal means.15 The second criterion is the general dismantlement or profound undermining of the liberal democratic state16 and the third is a reference to systemic corruption, which can be an overwhelming problem undermining Article 2 TEU compliance.17 In any case, there is a general feeling that the

12  See also, J-W Müller, ‘The EU as a Militant Democracy, or: Are There Limits to Constitutional Mutations within the Member States’ (2014) 165 Revista de Estudios Políticos 141. 13  For an exploration of the notion in the EU legal context, see, P Craig, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (2011) 48 CML Rev 395. 14  J-W Müller, Constitutional Patriotism (Princeton, Princeton University Press, 2007). 15  eg Scheppele (n 11); M Bánkuti, G Halmai and KL Scheppele, ‘Hungary’s Illiberal Turn: D ­ isabling the Constitution’ (2012) 23 The Journal of Democracy 138. 16  A programme explicitly stated by Hungary’s Prime Minister Orbán in a recent speech. 17 MA Vachudova, ‘Corruption and Compliance in the EU’s Post-Communist Members and ­Candidates’ (2009) 47 Journal of Common Market Studies 43.

Reinforcing Rule of Law in the EU 177 problems should absolutely go beyond individual human or f­ undamental rights violations and petty corruption, and that they may represent a new phenomenon in that they profoundly undermine the very essence of the modern democratic state. Those problems go beyond violation of specific fundamental rights or, indeed, governance standards. In other words, crucially, the rule of law problems we should be concerned with are not necessarily human rights problems.18 ­Constitutional capture, dismantlement of the liberal democratic state and endemic corruption taking different forms which penetrates the whole body of the state and society are the three inter-related factors to be concerned with when answering the ‘What?’ question. B.  The ‘Why?’ Question: What does the EU have to do with all this? Any EU action in relation to scrutinising and correcting Member States’ deviation from the rule of law requires a previous normative foundation. Generally speaking the Union can potentially emerge as a militant democracy.19 Three key normative arguments for the Union’s involvement clearly concern, firstly, the effects of Article 2 violations by a single Member State on the whole of the Union both at the citizens’ and at the Member State level; secondly, these concern the supranational understanding of the Union as a federal legal-political organism, requiring it to intervene in defence of the rights and freedoms, which it directly endows its citizens with; and, thirdly, the argument building on the EU’s congruence with its own proclaimed values and policies. i.  The All-affected Principle The normative argument on the effects on the whole of the EU of the individual Member States’ departures from the values of the Union starts with the all-affected principle, related to the deep inter-penetration and the mutual interdependency between the Member States of the Union at the current stage of European ­integration.20 This works at two levels. Firstly, every European citizen has an interest in not being faced with an illiberal Member State in the EU, since that state will take decisions in the E ­ uropean ­Council and the Council of Ministers and at least indirectly participate in ­governing the lives of all the citizens of Europe. If one or more Member States 18  See eg, D Kochenov, ‘The Ought of Justice’ in Kochenov, de Búrca and Williams (n 2) A Somek, ‘The Preoccupation with Rights and the Embrace of Inclusion: A Critique’ in Kochenov, de Búrca and Williams (n 2). 19  Müller (n 12); A Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54 Journal of Common Market Studies; D Kochenov, ‘EU Law without the Rule of Law’ (2015) 34 Yearbook of European Law 74. 20  J-W Müller, ‘Protecting the Rule of Law (and Democracy!) in the European Union: The Idea of a Copenhagen Commission’ in Closa and Kochenov (n 1).

178  Carlos Closa and Dimitry Kochenov change their standards regarding the rule of law or democracy, this necessarily and automatically affects the decisions in and by other Member States as well. Secondly, every EU Member State is equally interested in ensuring that none of the others free-ride, undermining the genuine nature of the Union and the internal market. Legally speaking, the interdependency between the Member States now works in such a way that the EU obliges the Member States to presume that each of them is at least as good as any other in terms of the governance, democracy and the rule of law standards. Mutual trust, which is essential to the working of the EU and the market itself, depends precisely on holding true this presumption. Departures from accepting other Member States’ court decisions, European arrest warrants, newly-issued nationalities or the quality of phytosanitary measures— you name it—are generally prohibited by EU law. Thus, disrespect for the rule of law and democracy in one particular Member State may have negative externalities upon third (EU) parties. This principle assumes that the EU is already a coherent legal-political entity based on mutual trust and respect and works both at the level of citizens and at the level of the Member States. ii.  The Supranational Federation Approach The federal analogy builds on the inter-dependency argument but moves it one step further: the EU is recognised—in tune with the functioning of its law in some domains—as a supranational federation.21 Such recognition provides an additional normative argument for its involvement in the cases when the Member States disregard the rule of law, as the Union per se is also conceived of as a bearer of an important stake in the functioning of the system and the effectiveness of the rights it grants. As an important bearer of duties vis-à-vis the citizens and, also, the Member States, the EU as such is viewed as a responsible actor. This vision cannot emerge out of a story of interdependence between the EU citizens or between the EU Member States. Once the EU’s supranational nature is fully taken into account, it acquires a role in protecting its citizens, which is independent of the Member States. Playing such a role pertains to the key recent jurisprudence of the Court of Justice of the European Union (ECJ).22 The debate on how far the federal

21  The ‘f-word’ is then used in R Schütze’s vein: R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press, 2009). See also K Lenaerts and K Gutman, ‘“Federal Common Law” in the European Union: A Comparative Perspective From the United States’ (2006) 54 American Journal of Comparative Law 1; J-C Piris, ‘L’Union européenne: vers une nouvelle forme de fédéralisme?’ (2004) 41 Revue trimestrielle de droit européenne 23; D Sidjanski, ‘Actualité et dynamique du fédéralisme européen’ (1990) 341 Revue du marché commun 655. 22  eg Case C-135/08 Janko Rottmann v Freistaat Bayern [2010] ECR I-1449; Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I-1177. For an analysis, see, D Kochenov, ‘A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the ­Development of the Union in Europe’ (2011) 18 Columbia Journal of European Law 55.

Reinforcing Rule of Law in the EU 179 analogies—particularly related to the renewed importance of EU citizenship— can be stretched is ongoing.23 iii.  The Principle of Congruence The third normative argument refers to the principle of congruence and it has an internal and an external dimension. Externally, the argument based on this principle points to the kind of requirements that the Union usually puts for engaging in co-operation with third parties.24 The protection of fundamental rights, the rule of law and democracy all together or one by one are good cases in point. Indeed, the EU even attempts to shape international law to its liking, using its own fundamental values and principles as a basis for this.25 Should the EU establish oversight mechanisms, then it would clearly also reinforce its credibility in the wider world. This is crucial, in particular, given that the EU sets high standards for the candidate countries in the course of the pre-accession,26 which contrasts sharply with what is required of those Member States, which are already ‘in’. Internally, the congruence principle means that respect for democracy and the rule of law should not only be viewed as a prerequisite for accession but also for continued membership. In short, the congruence argument, when taken seriously, enhances the EU’s credibility in safeguarding and defending its fundamental values. The three arguments combined provide a sound normative foundation for the intensification of the EU’s involvement with the outstanding issues of the dis­ regard of the fundamental values by the Member States.

III.  THE LEGAL BASIS FOR REINFORCED EU OVERSIGHT

In order to be able to intervene, a sound legal basis is required, to empower the EU to act. This section first argues that Article 7 TEU, which is the main instrument in the treaties currently in force ab initio designed to tackle value problems, provides an insufficient legal basis for a successful intervention. It then moves to assess the potential need for a treaty reform, also considering other options, in effect, agreements on values’ enforcement placed outside the framework of the EU acquis. 23 See eg, D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, ­Cambridge University Press, 2017) forthcoming. 24  M Cremona, ‘Values in EU Foreign Policy’ in M Evans and P Koutrakos (ed), Beyond the Established Legal Orders: Policy Interconnections between the EU and the Rest of the World (Oxford, Hart Publishing, 2011) 275; P Leino and R Petrov, ‘Between “Common Values” and Competing Universals’ (2009) European Law Journal 15, 654. 25  E Herlin-Karnell, ‘EU Values and the Shaping of the International Legal Context’ in Kochenov and Amtenbrink (n 5). 26  M Maresceau, ‘The EU Pre-Accession Strategies: A Political and Legal Analysis’ in M Maresceau and E Lanon (eds), The EU’s Enlargement and Mediterranean Strategies: A Comparative Analysis ­(Basingstoke, Palgrave, 2001) 18. See also Hillion (n 8).

180  Carlos Closa and Dimitry Kochenov Lastly, this section turns to the concrete legal bases in primary EU law as possible legal grounds for the EU’s involvement in solving the rule of law problems at the national level.

A.  Article 7 TEU The main provision in the current framework, which formally establishes the possibility to take measures in case of violations of the rule of law is Article 7 TEU, which contains a mechanism to protect the EU against serious breaches of the values as reflected in Article 2 TEU by any of the Member States. Importantly, the scope of Article 7 TEU is not confined to the areas covered by EU law but also allows the Union to act in the event of a breach in which Member States act autonomously, in their own exclusive area of competence.27 In practice, a strong political unwillingness to use the mechanism provided for by Article 7 TEU, which places the determination of the existence of a breach fully with the Council, has emerged. Calls for the establishment of monitoring or early warning mechanisms have gone unheeded for a decade.28 The most recent Commission’s initiative to establish a ‘Pre-Article 7’ procedure29 has been harshly criticised by the Council.30 The procedure contained in Article 7 TEU is a political, not a judicial one, allowing for a lot of behind-the-scenes leverage and not implying any active participation of the ECJ. This makes it reasonable to believe, and the majority of scholars seem to agree, that Article 7 TEU can only be used in the most outrageous and acute factual constellations. There is thus a pressing need to look for alternatives, both within the existing treaty framework and possibly beyond.

B.  Key Options Framing the Way Forward: What About the Treaty Change? Even if a treaty amendment may be desirable, treaty revisions are slow and painful processes31 and hence it should not be the focus at the present moment, when

27  Communication from the Commission to the Council and the European Parliament on Art 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based: COM (2003) 606. 28  W Sadurski, ‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jörg Haider’ (2010) 16 Columbia Journal of European Law 385. 29 European Commission, ‘A New EU Framework to Strengthen the Rule of Law’ (Strasbourg, 11 March 2014) COM(2014) 158 final; D Kochenov and L Pech, ‘Better Late than Never?’ (2016) 54 Journal of Common Market Studies. 30  The Legal Service of the Council concluded the following: ‘[T]he new EU framework for the Rule of Law as set out in the Commission’s communication is not compatible with the principle of conferral which governs the competences of the institutions of the Union’ Council of the European Union, Opinion of the Legal Service 10296/14 (14 May 2014) para 28. 31  See C Closa, The Politics of Ratification of EU Treaties (London, Routledge, 2013).

Reinforcing Rule of Law in the EU 181 we are dealing with an imminent crisis of the rule of law, or even a ­‘constitutional crisis’32 in some Member States. Moreover, non-complying Member States will obviously block any treaty change aiming at tackling their non-compliant behaviour. Yet, much is to be said for considering treaty amendments in all seriousness. The key reason for this is that a treaty revision, even if it does not happen overnight, which brings about a substantial reinforcement of the oversight mechanisms, would significantly increase the legitimacy of the EU’s interventions. Only a treaty change will provide a satisfactory response to the potential limitations arising from Article 4(2) TEU, which can be misused to over-emphasise the protection of the constitutional specificity of the Member States failing to comply with the values as set out in Article 2 TEU. Article 4(2) TEU requires: [R]espect for national identities of Member States which are inherent in their fundamental structures, political and constitutional, inclusive of regional and local selfgovernment­. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. (emphasis added)

While it is clear that it is legally untenable to stretch this provision to such an extent that it would amount to de facto denying the effet utile of Article 2 TEU as a minimal values’ denominator common to all the Member States and the Union alike, a forceful restatement of this fact in the text of the treaties would be a good thing. We should not forget, however, that the dilemma whether to amend or not to amend the treaties does not reflect all the possible causes of action. New mechanisms could potentially be created both within and, importantly, outside the treaty framework. Indeed, examples of two types of actions outside the treaty framework are known. The first is about ad hoc interventions, to which the case of Austria following the elevation of FPÖ to power testifies, when the Member States rallied for change entirely outside of the scope of the acquis.33 The second is about formal legal structures outside the scope of the treaties. The instruments used to deal with the financial crisis, such as the Fiscal Compact, exemplify this.34 As always, a ­middle way is also possible here—it concerns the enhanced co-operation ­procedures in the treaties. These are notoriously difficult to use, however.35 32  The Fundamental Rights Agency concluded that this is the case in Hungary: FRA, Fundamental Rights: Challenges and Achievements in 2012 (Vienna, FRA, 2013) 22–25. 33  GN Toggenburg, ‘La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni’ (2001) Diritto pubblico comparato ed europeo 735; K Lachmayer, ‘The Austrian Crisis’ in Jakab and Kochenov (n 6). 34 A Menéndez, ‘The Existential Crisis of the European Union’ (2013) 14 German Law Journal 453; M Adams, F Fabbrini and P Larouche (eds), The Constitutionalisation of European Budgetary ­Constraints (Oxford, Hart Publishing, 2014), C Closa ‘Los cambios institucionales en la gobernanza macroeconómica y fiscal de la UE: hacia una mutación constitucional europea’ (2014) Revista de ­Estudios Políticos 165:3. 35  F Fabbrini, ‘The Enhanced Cooperation Procedure: A Study in Multispeed Integration’ (October 2012) Centro Studi sul Federalismo Research Paper. See also F Amtenbrink and D Kochenov, ‘Towards

182  Carlos Closa and Dimitry Kochenov Keeping in mind such ‘extra-acquis’ options, it seems that compelling a­ rguments would still require remaining within the treaty framework. The alternative options arguably diminish the effectiveness of the much-needed oversight mechanism, since it presupposes the agreement and participation of all Member States (unless outright bullying of a potentially illegal nature is advocated, which was the ­Austrian case). Crucially undermining the potential success of any of the approaches placed outside of the context of the treaties and the acquis, it would be very likely that the Member States plagued by deficiencies in the area of rule of law and other values will opt out of a mechanism established outside the treaties. All in all, thus, although the preference in the current situation, which is one of urgency, should definitely lie with the attempted deployment of the existing treaty machinery, in the medium- to long-term future a treaty amendment would definitely be beneficial for the success of the rule of law oversight mechanisms, also increasing the legitimacy of EU interventions. This said, the focus of the section which follows is on the deployment of the existing legal bases.

C.  Legal Bases Currently Available The issue of the legal bases is at times intimately related to the questions of the procedure deployed and the bodies responsible for action, particularly so, when an innovative—or even an outright inventive—deployment of the treaty instruments is advocated. The key legal bases for addressing the departures from the values of Article 2 TEU by certain Member States include a wide array of options, but the most plausible are the following:36 reading Article 2 TEU in conjunction with 4(3), 3(1), and 13(1) TEU (a); deploying Article 2 TEU in combination with Article 19 TEU (b); deploying Article 2 TEU in combination with Article 258 TFEU (c); adding fines along the lines of Article 260 TFEU (d). Importantly, all these options allow for inter-penetration, thus largely increasing the potential of their combined application.37 It goes without saying that any mechanism deployed should bear in mind the eventual limitation imposed by Article 4(2). Before introducing them one-by-one their interrelation with Article 7 TEU has to be clarified, however: does the mere presence of Article 7 TEU, as a special procedure to deal with the infringements of Article 2 TEU in the treaties pre-empt the utilisation of other treaty instruments to guarantee Member States’ compliance with Article 2 TEU? Should this question be answered in the affirmative, this would imply that no effective remedy against the Member States undermining the rule of law is available in the system—this is taking into account all that a More Flexible Approach to Enhanced Cooperation’ in A Ott and E Vos (eds), 50 Years of European Integration: Foundations and Perspectives (The Hague, TMC Asser Press, 2009). 36  For a detailed exploration, see C Hillion, ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’ in Closa and Kochenov (n 1). 37  For a number of options discussed see Verfassungsblog (n 11).

Reinforcing Rule of Law in the EU 183 was said above about the serious drawbacks of Article 7 TEU as a possible tool to bring about compliance. It seems that Article 7 TEU does not pre-empt other ways of values’ enforcement. Indeed, Article 7 TEU does not prevent the adoption of another mechanism enforcing Article 2 TEU: this would seriously undermine the possibilities of reading other provisions in the treaties in the light of Article 2 TEU, thus effectively diminishing the reach of EU values. As a consequence, in one example, Article 258 TFEU and Article 7 TEU are not incompatible. The Commission should definitely be able to use Article 258 TFEU if the Member States refuse to activate Article 7 TEU. By extension, the same applies to Article 260 TFEU. i.  Articles 2 TEU and 4(2), 3(1) and 13(1) TEU Read Together The Article dealing with the values in the treaties is well known. The general agreement in the literature as well as the reading given to this provision by the Commission tended to assume that the strictly legal effects of this article are limited due to its over-encompassing nature and perceived vagueness of the values and principles it deals with. Yet, in order to build a sound alternative to Article 7 TEU and achieve a high level of compliance with the values among the Member States, some measure of direct effect for Article 2 TEU is indispensable. This is the case since if we believe that Article 2 TEU does not impose an obligation on Member States, its deployment as a legal measure sensu stricto becomes overwhelmingly difficult. This implies that a treaty change is still required to make this possible. However, when considered in a systemic fashion in the context of the requirements laid down in other provisions of the treaty, a radically different reading of Article 2 TEU can be proposed. As stressed by Christophe Hillion,38 Articles 3(1) and 13(1) TEU are of particular importance in this regard. Both provisions oblige the EU and its institutions (respectively) to ‘promote’ its values, which may provide for a sufficiently solid legal-constitutional basis for EU action in relation to Article 2 TEU depending on how the term ‘promote’ is interpreted. It is apparent that when Article 2 TEU is read in the context of other treaty provisions—rather than alone—strong arguments can be made for reconsidering our general view of this provision as a mere declaration. Moreover, taking also Article 7 TEU into account in this regard provides an additional argument for treating Article 2 TEU in all seriousness. Indeed, Article 7 TEU may be read in a way that indicates that Article 2 TEU imposes an obligation on the Member States. Indeed, a different reading seems to be impossible if the treaty attaches a sanction to the observance of what Article 2 TEU requires. As with the sanction itself, however, to speak of an ‘obligation’ in the context of Article 2 TEU there has to be a very serious systemic infringement of the values and minor infringements would fall outside the scope of EU law. Add to this the duty of loyalty as outlined in Article 4(3) TEU and the reality of a reinforced perception of Article 2 TEU is complete. The duty of loyalty, 38 

Hillion (n 36).

184  Carlos Closa and Dimitry Kochenov which ‘prohibits sins of commission and omission’39 would clearly demand the Member States and the EU alike to treat the systemic reading of Article 2 TEU seriously. In other words, any claim either by a Member State or by the Union itself, that ­Article 2 TEU is of somehow diminished legal value, would most likely be unsound in such context. In other words, the most popular limited reading notwithstanding, Article 2 TEU, when read together with Articles 3(1), 4(3) and 13(1) TEU appears to produce an obligation on the Member States which can objectively be seen as sufficiently strong to justify forcible EU measures to adhere to the values protected by Article 2 TEU. The very existence of Article 7 TEU supports this argument. The fact that the legal effects which Article 2 TEU can produce are not confined to a mere declaration open up the door to a whole array of options concerning this Article’s enforcement. ii.  Articles 2 TEU and 19 TEU Read Together One of such options, which the Commission actually considered deploying against Hungary to which the reasoned Opinion it brought in Commission v Hungary40 seems to testify is the combined reading of Articles 2 and 19 TEU.41 Article 19 TEU provides that the courts of the Member States have an active role in ensuring the effective application of EU law. It directly follows from this provision that undermining the role of the national courts could be construed as an infringement of the treaty. The Commission did not follow this course of action in the end, which could be connected to an argument that many outright undesirable changes to national judicial systems do not bar national courts from effectively applying EU law. However thin is the line between the application of national and the application of EU law, pursuing the enforcement of values in courts through the combined reading of Articles 2 and 19 TEU could thus be problematic. iii.  Articles 2 TEU and 258 TFEU Deployed Together A potentially more viable way to give ‘teeth’ to Article 2 TEU relates to its direct connection with the standard enforcement procedure of Article 258 TFEU. This connection, which should not be pre-empted by the existence of Article 7 TEU as we have seen above, rests on the premise that Article 2 TEU is not a mere declaration. The main difficulty which necessarily arises from bringing Article 258 TFEU into the picture relates to the (over-)general nature of the functioning of

39  PJG Kapteyn and P VerLoren van Themaat (L Gormley (ed)), Introduction to the Law of the ­European Communities 3rd edn (The Hague, Kluwer Law International, 1998) 148. 40  Case C-286/12 Commission v Hungary ECLI:EU:C:2012:687. 41  Scheppele (n 9).

Reinforcing Rule of Law in the EU 185 Article 2 TEU combined with the premise that the infringements to fall under Article 258 TFEU should be concrete and clearly demonstrable. Kim Lane Scheppele proposed the key way of dealing with it. She advocates the reorientation of the combination of the two provisions in question to produce a ‘systemic infringement action’42 which would allow bundling together numerous examples that Article 2 TEU is being seriously violated in a Member State and then proceed by way of Article 258 TFEU, submitting the whole bundle of evidence to the ECJ. As a result, the ECJ would have a very concrete ground akin to a conventional infringement action brought by the Commission under Article 258 TFEU. By grouping together related complaints thematically under Articles 2 or 4(3) TEU, however, the Commission would add the argument that the whole is more than the sum of the parts and that the set of alleged infringements rises to the level of a systemic breach of basic values. This proposal is of fundamental importance both in terms of giving Article 2 TEU a renewed importance and in terms of drawing on the consistent ECJ practice of bundling infringements in other fields of law.43 iv.  Adding Article 260 TFEU Systemic infringement actions acquire additional importance in terms of enforcing the values of the Union in the Member States also due to the route towards the deployment of Article 260 TFEU, which a statement of breach by the ECJ in the context of an Article 258 TFEU procedure offers. Indeed, should the ECJ find a Member State in violation, it would be possible for the Commission to bring another action before the Court, this time on the basis of Article 260 TFEU in order to ask the Court to order levying a fine or a lump-sum from the Member State in question. Financial sanctions are then regarded as an additional incentive to make the Member State in breach of Article 2 TEU change its practices. What if the Member State does not pay? A logical continuation of imposing a fine or a lump sum would be to withhold the amount due directly from the moneys assigned to the Member State in question from the EU budget as has been 42 KL Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’ in Closa and Kochenov (n 1). Her proposal has been analysed in the Verfassungsblog in great detail. For the details of the proposal, see KL Scheppele, ‘What Can the European Commission Do When Member States Violate Basic Principles of the European Union? The Case for Systematic Infringement Actions’ (2013) available at http://ec.europa.eu/justice/events/assises-justice-2013/ files/contributions/45.princetonuniversityscheppelesystemicinfringementactionbrusselsversion_ en.pdf; for the proposal in brief, see KL Scheppele, ‘EU Commission v Hungary: The Case for the “Systemic Infringement Action”’ (22 November 2013) Verfassungsblog, available online at www.­ verfassungsblog.de/en/the-eu-commission-v-hungary-the-case-for-the-systemic-infringementaction/#.Uw4mfPuzm5I. For the discussion, see ­Verfassungsblog, ‘Hungary—Taking Action, Episode 2: The Systemic Infringement Action’ available online at www.verfassungsblog.de/en/category/focus/ ungarn-vertragsverletzungsverfahren-scheppele/#.­Uw4m4Puzm5J. See also D Kochenov, ‘On Policing Article 2 TEU Compliance—Reverse Solange and Systemic Infringements Analyzed’ (2014) XXXIII Polish Yearbook of International Law 145. 43  eg Case C-494/01 Commission v Ireland (Irish Waste) [2005] ECR I-3331.

186  Carlos Closa and Dimitry Kochenov proposed in a recent letter from the Foreign Ministers of Germany, the Netherlands, Finland and Denmark to the Commission44 in which they suggested that the suspension of EU funding should be possible as a last-resort measure. Some of the Member States with rule of law problems rely quite heavily on EU funds, as the Hungarian example demonstrates, which theoretically makes it quite probable that the Member State will choose a way of compliance, once EU money has been cut. Better still, releasing the funds after the Member State has complied provides an additionally incentivising ‘friendly’ option. The suggestion to invoke Article 260 TFEU after Article 258 TFEU is not without its drawbacks, however. Most importantly, the power of the EU to adopt financial sanctions is limited and requires a specific legal basis. Consequently, it is not entirely clear whether, in particular, withholding funds is an option: changes in the legal framework serving Article 260 TFEU might be necessary. Moreover, sanctions research in law and political science demonstrates quite clearly that sanctions are almost never an effective way to bring about compliance in the situations when compliance would potentially go to the core of the regime in question. The practice of application of Article 260 TFEU shows that the least cooperative Member States—and the ones breaching Article 2 TEU values—will most likely belong precisely to this category: prefer to pay rather than comply.45 Thus even if we answer the question whether the adoption of sanctions relating to rule of law or democracy violations is necessary in the affirmative, there are very strong reasons to doubt whether such sanctions will bring about the desired effects in terms of living up to what Article 2 TEU requires.46 To sum up, a number of instruments in the current version of the treaties are capable of being deployed in order to guarantee that the values on which the Union is based are observed. Notwithstanding the fact that some of the readings of the instruments in question as proposed above might strike some as innovative, sound interpretation of the law is unquestionably on the side of those who see clear potential in Article 2 TEU in combination with other provisions.

IV.  OVERSIGHT PROCEDURES

As has been demonstrated above, there are convincing reasons to mandate the EU’s intervention in the area of values’ and, in particular, of rule of law protection. Whichever position one adopts on the scale and necessity of intervention, the

44 See ‘The Letter from Germany, Finland, Denmark and the Netherlands Request a New ­ echanism to Safeguard the Fundamental Values of the EU’ addressed by the four respective M Foreign Ministers to President Barroso. Available online at www.rtt.ro/en/scrisorea-prin-caregermania-finlanda-danemarca-si-olanda-solicita/; see also Scheppele, ‘Enforcing the Basic Principles of EU Law’ (n 42). 45  B Jack, ‘Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgments?’ (2013) 19 European Law Journal 420. 46  See eg, Kochenov (n 42) 145.

Reinforcing Rule of Law in the EU 187 treaties unquestionably contain an ample variety of instruments already, which can be deployed to bring about the enforcement of the basic rule of law and other values’ standards in the Member States. The question that arises is which procedure to use, building on all these possibilities.

A.  Key Components and Classifications of Procedures Ideally, a comprehensive procedure should outline three key issues with clarity: the legal basis, the object on which oversight is exercised; the stages in the procedure, and the institutions or organs involved in their implementation. Within the procedure, the different phases (initiative, trigger instrument, assessment, implementation and follow-up action) should also be clearly identified. Instead of going into very specific details, to keep this paper focused, this section offers a general glimpse of the key procedures to be considered in the context of the reinforcement of the rule of law oversight. i.  Brand-new Procedures versus (Updated) Existing Ones Improvement of the rule of law oversight could involve brand-new procedures, albeit based on the pre-existing legal bases (like Kim Scheppele’s systemic infringement procedure for instance), others are entirely new for the context of the treaties, as illustrated, inter alia, by Jan-Werner Müller’s suggestion to endow the dayto-day management of the enforcement of values to a new EU institution—the Copenhagen Commission.47 Besides the procedures managing compliance, special emphasis is put on the possible ways to enforce the findings of the monitoring organs, institutions and/or relevant court decisions. Here too, the same distinction is observed between the new (like amending the treaties to make exclusion of the Member States from the EU possible)48 and well-known procedures used to the full or slightly reinterpreted (like giving a boost to Article 260 TFEU in the context of the systemic infringement procedure). Drawing on the existing procedures has two advantages. Firstly, it is easier to deploy such procedures since no new methodology needs to be developed and no treaty amendment is necessary. The second advantage—which is probably more important than the first—is that the use of the pre-existing procedures avoids the appearance of a power grab. This may be why the Commission has played an active role in relation to Hungary: the Commission works in a political environment which favours using existing acquis. The same applies to other actors and institutions. Established procedures thus have an air of reliability and, at the same 47  J-W Müller, Safeguarding Democracy inside the EU. Brussels and the Future of the Liberal Order (Washington DC, Transatlantic Academy Paper Series, 2013). 48  C Closa, ‘Reinforcing EU monitoring of the Rule of Law: normative arguments, institutional proposals and the procedural limitations’ in Closa and Kochenov (n 1).

188  Carlos Closa and Dimitry Kochenov time, institutional modesty to them, making their deployment easier, which is a particular asset in such sensitive political contexts as Article 2 TEU compliance. ii.  Judicial versus Political Procedures In essence, all the procedures outlined split into two key categories: judicial and political procedures. While the first rely on the perception of the values of ­Article 2 TEU as binding law, drawing on the court systems at all the available levels to enforce compliance, the latter make a particular emphasis on the continuous monitoring of compliance by a wide variety of means. Here a huge array of options is available, as besides the existing EU institutions, like the Fundamental Rights Agency (FRA),49 for instance, also new ones can be created (for example, the Copenhagen Commission). Besides, the outsourcing of monitoring to the existing institutions outside of the EU’s legal framework also remains an open possibility. In this regard, both the Council of Europe bodies (such as the Venice Commission)50 and, theoretically, ad hoc bodies, could be engaged. Proponents of the judicial procedures favour, in particular, the involvement of the courts in the oversight mechanisms. Proponents of the political procedures, on the other hand, aim at allowing the Member States and individual nonadjudicatory­institutions to play a crucial role. Arguments for the latter directly relate to trying not to alienate the non-compliant Member States completely and emphasising the openness to dialogue.51 Arguments for the former split into two depending on which level of the judiciary—national or European—is to be endowed with enforcing the values of Article 2 TEU. Those relying on the national courts are, expectedly, less convincing.52 This is primarily because national-level judiciaries in the jurisdictions facing severe problems with the rule of law are not necessarily independent and should not necessarily be trusted. iii.  Ex ante versus Ex post Procedures The majority of the procedures concern ex post involvement, which is fully ­justified in the context where the violations are already on-going in some Member States. This leaning towards dealing with the existing problems is due solely to the urgency of the matter, however, and should not be read as a sign that ex ante ­procedures are of lesser importance. Quite on the contrary: in the medium- to 49  GN Toggenburg and J Grimheden, ‘The Rule of Law and the Role of Fundamental Rights’ in Closa and Kochenov (n 1). 50  The Venice Commission has been active in trying to solve the Hungarian Rule of Law crisis: ­European Commission for Democracy Through Law (Venice Commission), ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’ (17 June 2013) Opinion 720/2013, CDL-AD(2013)012. 51  The Commission’s own Pre-Art 7 proposal clearly follows this trend. 52  See eg, the Verfassungsblog debate for the criticism of von Bogdandy’s proposal: Verfassungsblog, ‘Rescue Package for Fundamental Rights’ available online at www.verfassungsblog.de/rettungsschirmfr-grundrechte-ein-onlinesymposium-auf-dem-verfassungsblog-2/#.Uw4rVPuzm5I. See also ­Kochenov (n 42) 145.

Reinforcing Rule of Law in the EU 189 long-term future, the Union’s success as a community of values will most likely depend on its ability to create and effectively implement a reliable way to deal ex ante with potential breaches of Article 2 TEU. For this a treaty change will presumably be required. This will not only contribute to the stability of the Union’s and the Member States’ adherence to the values set out in that provision, but will also ensure full Member State equality—in the context of continuous monitoring no arguments will be possible that some Member State is somehow singled out among the rest. The Fundamental Rights Agency could probably fulfil this role.53 iv.  Avoiding Semblance of Change Last but not least, to be successful, any new EU mechanism that seeks to promote the quality of democracy and the rule of law must not just pressure governments of the Member States where Article 2 TEU is not observed. It must go further than that, presumably attempting to influence the tenor of domestic political competition, thus having profound effects on the day-to-day functioning of politics in those Member States. Although this might seem self-evident, the EU’s preaccession­engagement with the candidate countries did not take this simple truth sufficiently into account, which could be regarded as one of the reasons behind the rule of law problems experienced by some Member States. This section will first look at the legal procedures, then at the political ones and, finally, assess the main proposals related to sanctions and fines.

B.  Legal Procedures The legal procedures discussed include: the systemic infringement procedure and the ECJ involvement via EU citizenship rights.54 i.  Systemic Infringement Procedure The essence of this proposal, formulated by Kim Lane Scheppele and briefly touched upon above is enhancing the role of the ECJ to ensure that it could be a part of a tri-institutional arrangement for determining and reviewing systemic infringement, and extend its scope to country-specific review in addition to issue-based review, given it now has the resources. The Commission would bundle a group of individual infringement actions against a Member State found to be in violation of Article 2 in combination with Article 4(3) TEU. In this way, it groups conventional individual infringement actions that it has the power to bring under Article 258 TFEU anyway. If the ECJ confirms the existence of such ‘systemic infringements’, Member States responsible for the systemic breach would 53  54 

Toggenburg and Grimheden (n 49). Kochenov (n 23).

190  Carlos Closa and Dimitry Kochenov be required to ensure systemic compliance, going beyond ‘superficial patches’. Secondary legislation may be required to provide the Commission effective sanctioning powers to withhold funds by keeping them in escrow (while the power to fine is found in Article 260 TFEU) until the implicated Member State complies. The attractiveness of Kim Scheppele’s proposal is both its reliance on the existing legal basis and making the procedure independent of the court system of the Member State suspected of infringing Article 2 TEU, thus guaranteeing legal effectiveness and political acceptability.55 At the same time, it has to be said that besides the preoccupations which some scholars have with the reinterpretation of Article 258 TFEU in order to turn this provision into a vehicle of systemic infringement, infringement proceedings that have been used so far, have only had a very limited effect—just as the sanctioning of the chronically non-compliant states in general, as discussed above in the section pertaining to the analysis of the second question. Thus the infringement mechanism could make sense if used in combination with other mechanisms in order to tackle the most severe cases. Also, the substantively different nature of ‘democracy’ and ‘rule of law’ compared with ‘normal’ acquis-enforcement usually handled with the help of Article 258 TFEU could call for a different procedure with a different blend of institutional involvement and differentiated effects. Naturally, some insight can be drawn from existing infringement as well as from the Excessive Deficit Procedure (EDP) and the Excessive Imbalance Procedure (EIP).56 ii.  ECJ Involvement via EU Citizenship Rights As an alternative to the reliance, chiefly, on the Commission to bring cases to the ECJ, the approaches involving local courts in the Member States could also be effective in certain circumstances. It goes without saying that expecting too much of the courts of a captured country which has definitely departed from Article 2 values would be most problematic. Yet, in the cases which are not so straightforward, local courts could be quite effective and Article 267 TFEU should definitely be considered as an option. The question which arises is how to bring the aspects of the rule of law within the scope of EU law in such cases. While the much-discussed Reverse Solange approach is probably of little use as it implies the involvement of the local courts of the problematic countries in exceptional circumstances on the verge of breaching the European Convention on Human Rights (ECHR), it is precisely the day-to-day rule of law problems, which could be tackled by the local courts taking action when it is not too late. This is when EU law could be activated via the logic of unwritten citizenship rights, as the ECJ has done, for instance in Ruiz Zambrano and later case-law.57 This clearly 55 

Scheppele, ‘Enforcing the Fundamental Principles of EU Law’ above (n 42). F Amtenbrink and R Repasi, ‘Compliance and Enforcement in Economic Policy Coordination in EMU’ in Jakab and Kochenov (n 6). 57  K Lenaerts, ‘“Civis Europaeus Sum”: From the Cross-Border Link to the Status of Citizen of the Union’ (2011) 3 Journal of Free Movement of Workers in the European Union 6; D Kochenov and 56 

Reinforcing Rule of Law in the EU 191 ­ emonstrated that while the ECJ is ready to adopt a hands-on approach to protect d EU citizenship rights, it was not ready at all to play with the scope of ­Article 51 Charter of Fundamental Rights.58 Ultimately, however, while the problem of contra legem interpretation of the Charter59 or the presumed incapacity of the local courts in the extreme circumstances of Reverse Solange is probably solved in the context of taking EU citizenship rights directly—rather than EU citizenship rights via the Charter—as a starting point of defending EU values, the procedure still remains fully dependent on the good will of the national courts and implies a severe extension of the ECJ’s jurisdiction without any necessary treaty authorisation. C.  Political Procedures It is essential to underline that dealing with human rights violations does not necessarily resolve values problems under Article 2 TEU and can even be unrelated to the level of protection of the rule of law in the Member States,60 the effectiveness of the procedures based on the starting assumption that the rule of law can be tackled via tackling individual violations can be questioned even more seriously. This inspires the need for improving monitoring and sanctioning mechanisms. Consequently, this is what the political procedures should necessarily seek to solve: monitoring and oversight, including ex post and, potentially, ex ante. At least three such approaches can be outlined. These include: (i) learning from the Council of Europe; (ii) using existing EU bodies; and (iii) creating a special EU institution: the Copenhagen Commission. i.  Learning from the Council of Europe Such a monitoring process could be based, for instance, on the commitments undertaken on accession. The EU would then need to establish a monitoring of commitments akin to the ‘Monitoring Committee of the Parliamentary Assembly’ of the Council of Europe,61 with the consultative role of the Venice Commission as a ‘constitutional fire-brigade’.62 An attractive point of this approach is that there is no need for the formalisation of the democratic oversight by the Venice Commission, and it is possible to rely on the ‘institutional memory’ of the Venice R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’ (2012) 37 European Law Review 369. 58  M van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously’ (2012) 39 Legal Issues of Economic Integration 273. 59  As suggested by András Jakab, for instance: A Jakab, ‘The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law Against EU Member States’ in Closa and Kochenov (n 1). 60  On the missing link between the two, see Somek (n 2). 61  É Lambert Abdelgawad, ‘The Enforcement of ECtHR Judgments’ in Jakab and Kochenov (n 6). 62  See for an analysis, K Tuori, ‘From Copenhagen to Venice’ in Closa and Kochenov (n 1).

192  Carlos Closa and Dimitry Kochenov Commission and the sanctioning power of the EU. Another positive feature is that should the Venice Commission be deployed, there would be no need to create new EU institutions, like the Copenhagen Commission for instance. However, the procedures enabling the Council of Europe (including the ECtHR (European Court of Human Rights) and the Venice Commission) to have a stronger role in the monitoring and enforcement of compliance with the values of Article 2 TEU can also be criticised on a number of important grounds. In JanWerner Müller’s outline,63 such ‘outsourcing’ would not be a good idea, as it will most likely be insufficient in dealing with specific highly technical areas of EU law, such as data protection for instance. Moreover, although the Venice Commission seems to be immune from such criticism, other Council of Europe organs and the ECtHR in particular deal precisely with the individual rights violations, which are not necessarily a way to address rule of law drawbacks, as underlined above. ii.  Using Existing EU Bodies Thinking in the same vein, using the EU’s existing institutional resources would be the most desirable option. Drawing on the FRA’s64 or the Commission’s competence and experience65 could be the most logical approach here. Yet, the effectiveness of both in this new capacity would be open to debate. This does not only have to do with the mandates of the two, but also with their prior performance. The fact of the matter is that the FRA, although able to collect information, is lacking a bite—it is clearly not an enforcement agency. And the Commission’s credentials— legally and politically—can be viewed as potentially problematic in this context, given the problem of the perceived desirability of ‘power-grabs’, but also given the context of its pre-accession performance in precisely the fields of democracy and the rule of law which left very much to be desired.66 It could thus be precisely a good idea to insulate the monitoring procedure-to-be from the European Commission. iii.  Creating a Special New EU Organ: The Copenhagen Commission Suggested by Jan-Werner Müller, the Copenhagen Commission was proposed ­precisely to avoid the drawbacks of the procedures outlined above. Most importantly, when looking at different types of outsourcing of Article 2 TEU compliance, whatever body is used for the actual monitoring (FRA, the Venice Commission etc), the actual sanctioning would still have to be done by the EU. Thus, the

63 

Müller (n 20). Toggenburg and Grimheden (n 49). 65 European Commission, ‘A New EU Framework to Strengthen the Rule of Law’ Strasbourg, 11 March 2014, COM(2014) 158 final. 66  D Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Field of Democracy and the Rule of Law (The Hague, Kluwer Law International, 2008). 64 

Reinforcing Rule of Law in the EU 193 s­ olution could be to have a new EU organ, which would combine the monitoring and the sanctioning functions—the Copenhagen Commission. Milada Ana Vachudova argued that the new Article 2 TEU compliance procedure should have three characteristics: (i) it should be insulated from the Member States that have a bad reputation in areas related to the quality of democracy and the fight against corruption; (ii) it should be part of the EU because there are no alternative, credible institutions; and (iii) it should have instruments not just about monitoring, but also for imposing sanctions. The solution is to enhance monitoring and sanctioning powers, primarily through a Cooperation and Verification Mechanism (CVM), which is coupled with sanctioning powers linked to EU funding.67 Yet, idealising the CVM could be dangerous, knowing that the current problems the Union is facing are partly due to the Commission’s performance in the course of the pre-accession exercise, which led Hungary and Romania into the Union.

D.  Penalties and Sanctions A clear distinction between financial and non-financial pressure and sanctions should be outlined at the outset. The key option in the latter category is a possibility to establish mechanisms to eject non-compliant Member States from the Union. i.  Financial Sanctions Besides the discussion of the legal possibilities of attaching Article 260 TFEU to the systemic infringement procedure above, several observations on the nature and possible usefulness of the financial sanctions are in order. It is unquestionable that EU funds are often crucial to Member States. In cases where the state plays an important role in distribution of resources, cutting funds will mostly affect the right people. Another problematic feature is the idea of taking away funds for political reasons. Moreover, as has been also mentioned above, the practice of application of financial penalties suggests that fines may not have much effect, as is illustrated by the case of Greece: a regular extraordinary contributor to the EU budget. In addition, if a sanction is imposed by the ECJ, the ability of a Member State to pay should be taken into account in the decision.68 A possible counter-argument could run along the line that funds can be used both as a carrot and as a stick. Withholding funds could be used as a temporary measure until a Member State changes its policies, rather than cutting them forever. Yet, Article 260 TFEU—at least as it currently stands—does not allow for 67 For an analysis see eg, MA Vachudova and A Spendzharova, ‘The EU’s Cooperation and ­ erification Mechanism: Fighting Corruption in Bulgaria and Romania after EU Accession’ (2012) V SIEPS European Policy Analysis 1. 68  Jack (n 45) providing a great analysis of the relevant case-law and Commission’s practice.

194  Carlos Closa and Dimitry Kochenov paying the fines collected by the EU back to the Member States. To employ the fining schemes in a positive way, thus, it will be indispensable to change the law on financial sanctions. ii.  Ejecting a Non-compliant Member State from the Union A normative argument in favour of the introduction of an ejection procedure into the treaties remains that non-compliance by a Member State with the same conditions which need to be met when it accedes to the EU can logically become a reason to eject such a Member State from the EU. While it would be premature to advocate acting, immediately, on this threat, a provision introducing it should have a kind of ‘deterrence effect’. In fact, the Council of Europe system knows precisely such a procedure.69 The huge effects of such a procedure’s eventual deployment probably make the threat itself unusable, while making less harmful penalties more credible at the same time. The ejection procedure could thus potentially reinforce the effectiveness of other sanctions. The main argument against ejecting Member States does not pertain to the gravity of the general threat, however. Rather, it is related to the potential threat to Article 2 TEU which such procedure itself brings about. In fact, admitting a possibility that a Member State can be ejected implies that the EU does not enjoy a direct bond of responsibility connecting it to the citizens of the Member State concerned in their capacity of EU citizens, as reflected under Article 9 TEU. To introduce such a procedure thus would potentially mean to imply that the EU, rather than defending its citizens in trouble, will spit them out together with the dysfunctional Member State. The ethical problems with this approach are thus far reaching—just as the legal ones.

V. CONCLUSIONS

The current treaty framework provides ample space for new mechanisms strengthening the oversight and scrutiny over Member States’ potential breaches of the rule of law. This chapter has identified three compelling normative reasons for the EU’s intervention where the performance of the Member States in complying with Article 2 TEU values is (extremely) poor. These are based on the all-affected principle, the supranational federal vision, and/or the principle of congruence. In any situation of a very serious disturbance of the rule of law at the national level these seem to justify intervention. Identifying the situations where the disturbances

69  Art 8 of the Statute of the Council of Europe (1949, ETS 001) reads as follows: ‘Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of ­representation and requested by the Committee of Ministers to withdraw under Article 7. If such ­member does not comply with this request, the Committee may decide that it has ceased to be a ­member of the Council as from such date as the Committee may determine’.

Reinforcing Rule of Law in the EU 195 should be sufficiently severe with required exactitude is not easy: all possible precautions have to be taken to avoid turning the idea of safeguarding the essence of the Union through enforcing Article 2 TEU into an outright power-grab by the Union institutions. Interference is thus only to be mandated in the cases of constitutional capture of a Member State, systemic corruption, or any other type of profound undermining of the liberal democratic state which is stated on the basis of sufficient evidence, leaving no room for doubt. In thinking about how to tackle such important yet tricky issues any method is to be considered, including the deployment of the existing legal bases and procedures, their rethinking or update by the means of secondary legislation via court practice. Treaty change is not an option to be excluded however. The same applies to the creation of eventual structures outside the framework of the acquis. While the latter options would not be deployable efficiently in the current context of urgency, when a constitutional crisis is clearly observable in some quarters, the same cannot be said about mid- to long-term perspective: clearly, the EU’s success will to a large extent depend on its ability to address Article 2 TEU problems in the future in the most efficient and effective way. For this a treaty change will most likely be required. Turning to the primary law currently in force, it is clear that sufficient legal bases exist, which, when interpreted and applied in a sufficiently inventive way, will be in the position to bring about a high degree of Member States’ compliance with what Article 2 TEU requires. Of particular importance are the options offered by a combined reading of Article 2 TEU with other TEU provisions, seemingly mandating the EU to treat its values in all seriousness, thus moving them beyond the realm of mere declarations. Moreover, when coupled with the existing infringement machinery of Articles 258 and 260 TFEU, the combined legal bases might actually prove effective in bringing about compliance, particularly if a systemic consideration is given to the assessment of compliance and sanctioning across the board. An attractive option is to deploy the existing instruments in combination with other tools, including peer-pressure among the Member States, inventive interpretation of the Charter of Fundamental Rights and the inventive reading of the financial sanctions in the meaning of Article 260 TFEU. When turned into the positive incentives of compliance, financial sanctions could do a much better job than in a situation where they are taken as purely punitive measures, as the general effectiveness of the punitive approach is highly doubtful. A systemic approach to dealing with values and rule of law compliance in the EU could be key to the Union’s success in the area of values’ enforcement. Such a systemic approach could include sanctioning, monitoring and also first-order prevention of value infringements. At the level of procedures, too, any tools even potentially of any use should be tested out. This includes political procedures, judicial procedures, ex ante as well as ex post approaches, new and also pre-existing procedures. Besides having an inward focus, the EU could also turn to other actors available in Europe to help with expertise and an unbiased ability to tackle the sensitive issues arising

196  Carlos Closa and Dimitry Kochenov under Article 2 TEU. Equality among the Member States and general moderation in the context of intervention should definitely be combined with the credibility of threats, up to discussing a possibility to enable the Union to get rid of the worst non-compliant Member States in the future. Whichever option is eventually chosen among a huge array of the templates presented, it is abundantly clear that the time to act is now. Having said this, the natural limitations on what the Union can possibly do should also be considered in all seriousness.

11 The EU Rule of Law Framework EMMANUEL CRABIT AND NICOLAAS BEL*

I. INTRODUCTION

O

N 11 MARCH 2014, the European Commission adopted a Communication introducing ‘a new EU Framework to strengthen the Rule of Law’.1 The rule of law is not a new principle in the EU legal order. During the last decades it has been firmly established in the remarkable case-law of the Court of Justice of the European Union (Court of Justice).2 And it has been reaffirmed in Article 2 of the Treaty on European Union (TEU) which explicitly refers to the rule of law as one of the values on which the EU is founded. The cornerstone role of the rule of law appears throughout the different ­components of the EU legal order. This legal order is based on respect for fundamental rights, upheld by the Court of Justice and by national courts acting as EU courts. Anyone whose rights under EU law are violated has the right to an effective remedy before a tribunal (Article 47 of the Charter of Fundamental Rights of the EU). National courts cooperate closely with the Court of Justice through a system of preliminary rulings. The Commission, as guardian of the treaties, is empowered to initiate infringement proceedings against Member States in case of a breach of EU law. The novelty of the Commission’s Communication lies not so much in recalling the importance of the rule of law principle, but rather in recognising that the effectiveness of this principle in Member States may require further action of EU institutions in certain situations. By establishing the EU Framework to strengthen the Rule of Law (the Framework) the Commission seeks to provide clarity and enhance predictability as to the actions it may take in the future in this area.

*  This chapter presents the personal views of the authors and does not necessarily reflect the official position of the Commission. The chapter was finalised in November 2014. 1  Communication from the Commission to the European Parliament and the Council, ‘A new EU Framework to strengthen the Rule of Law’ (the Communication) COM(2014) 158 final/2 and COM(2014) 158 final annexes 1 to 2. 2  In particular in the Case 294/83 Les Verts v European Parliament [1986] ECR 01339, the Court of Justice stated that the EU is ‘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’; para 23.

198  Emmanuel Crabit and Nicolaas Bel A.  The Concept of Rule of Law—A Common Understanding Although there is no uniform definition of the concept of ‘rule of law’, the case law of the Court of Justice, of the European Court of Human Rights and documents drawn up by the Council of Europe, in particular the Venice Commission, provide elements around which the ‘core meaning’ of this concept, that is, a common understanding of its meaning, can be built. According to this common understanding, the rule of law ensures in essence 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. This common understanding relies on a non-exhaustive list of legal principles which are generally associated with the concept of rule of law.3 As explained in the annex of the Communication, those principles include: legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of executive powers; independent and effective judicial review which includes ensuring the respect for fundamental rights; separation of powers and equality before the law. The Communication underlines that those principles are not purely formal and procedural requirements. The rule of law is a constitutional principle with both formal and substantive components. Respect for the rule of law is intrinsically linked to respect for democracy and fundamental rights. The Court of Justice highlights this substantive dimension of the rule of law concept by specifying that a ‘Union based on the rule of law’ means that the EU institutions are subject to judicial review of the compatibility of their acts not only with the Treaty but ‘with the general principles of law which include fundamental rights’.4

II.  WHY HAS THE COMMISSION ESTABLISHED THE EU RULE OF LAW FRAMEWORK?

Respect for the rule of law is crucial for the functioning of the EU. It is a prerequisite for the protection of all the values listed in Article 2 TEU, including democracy and fundamental rights, for the effectiveness of EU law and for establishing mutual trust among EU Member States. The different constitutions and judicial systems of the Member States are, in principle, well designed and equipped to protect citizens against any threat to the rule of law. However, in recent years we have seen crisis events in some Member

3 

See annex 1 of the Communication. C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-06677, paras 38 and 39; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351, para 316. 4  Case

The EU Rule of Law Framework 199 States which have demonstrated that respect for the rule of law cannot be taken for granted, not even within the EU. The Commission has had to deal with situations in some Member States where the safeguards—including judicial and constitutional review—which exist at national level to protect democracy and fundamental rights were seriously under threat. During these crisis events, many turned to the Commission to ask for its intervention as guardian of the treaties. The Commission, after careful consideration, intervened by exerting political pressure, and where possible with infringement proceedings. This approach enabled the Commission to achieve results in upholding or restoring certain aspects of the rule of law.

A.  Infringement Proceedings The Commission, as guardian of the treaties, can launch infringement proceedings against a Member State (based on Article 258 Treaty on the Functioning of the European Union (TFEU)). Infringement proceedings have proven to be an important instrument for addressing certain rule of law concerns in Member States. For example, following infringement proceedings the Court of Justice held that a sudden reduction in the mandatory retirement age for judges and public prosecutors (from 70 to 62) was incompatible with the Directive 2000/78/EC which prohibits discrimination at the workplace on grounds of age. Even if the Court did not refer to the principle of ‘rule of law’ in its reasoning but rather to the violation of the Directive, this ruling contributed to upholding the rule of law5 in the sense that it protected the judiciary of a Member State against unlawful national legislation affecting its composition. Such a convergence of interest between ensuring the respect of a specific EU legislation and ensuring the respect of the rule of law can also be found in the judgments of the Court of Justice relating to the independence of the national data protection authorities as required in Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.6 Another example is the use of Article 47 of the Charter to protect the independence of the judiciary in a Member State. Article 47 of the Charter specifies that anyone whose rights under EU law are violated has the right to an effective remedy before a tribunal. The Court has highlighted that independence and impartiality are amongst key criteria which must be satisfied by the body concerned in order

5 Case C-286/12 Commission v Hungary, not yet published; see also Commission press release IP/13/1112, 20.11.2013 (http://europa.eu/rapid/press-release_IP-13-1112_en.htm). 6  See, for example, Case C-518/07 Commission v Germany [2010] ECR I-01885, Case C-614/10 Commission v Austria, not yet published and Case C-288/12 Commission v Hungary, not yet published; Commission memo, MEMO/14/267, 08.04.2014.

200  Emmanuel Crabit and Nicolaas Bel to be considered as a ‘tribunal’ and to ensure an effective judicial protection of EU rights.7 National courts act as ‘EU courts’ whenever they apply EU law, and therefore must comply with the requirement of the independence of the judiciary as a matter of EU law. Based on this reasoning, the Commission expressed its concerns about certain aspects of a reform of the judiciary in a Member State. In particular, in this reform powers were attributed to the President of a national authority to transfer cases dealt with by a court to another court.8 The Commission considered that these measures could affect the independence of the judiciary and therefore the fundamental right to an effective remedy by a court as guaranteed by Article 47 of the Charter in cases concerning EU law. Following the intervention of the Commission, the Member State concerned removed the provision in question. However, it is important to note that infringement proceedings can be used only where there is a breach of a specific provision of EU law. As a consequence, not all possible threats to the rule of law in a Member State can be addressed by infringement proceedings.

B.  The Mechanisms of Article 7 TEU In cases where infringement proceedings cannot be applied, the preventive and sanctioning mechanisms provided for in Article 7 TEU could be relevant. Article 7 TEU provides for special mechanisms with far-reaching sanctions in case a Member State does not respect the fundamental values referred to in ­Article 2 TEU, including the rule of law. The Commission, the European Parliament or one-third of the Member States are empowered by the Treaty to issue a proposal to activate those mechanisms. Importantly, the scope of Article 7 TEU is not limited to areas covered by EU law and empowers the EU to intervene with the purpose of protecting the rule of law also in areas where Member States act autonomously. However, the thresholds to activate the mechanisms of Article 7 TEU are high: the preventive mechanism requires ‘a clear risk of a serious breach’ by a Member State of the values referred to in Article 2 TEU; the sanctioning mechanism

7  Case C-506/04 Wilson [2006] ECR I-08613, para 48. The Court also underlined that the concept of independence requires certain guarantees sufficient to protect the person of those who have the task of adjudicating in a dispute. The guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss 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 (paras 51–53). 8  See Commission press release IP/12/24, 17.01.2012 (http://europa.eu/rapid/press-release_IP-1224_en.htm?locale=en); MEMO/12/165, 7.03.2012 (http://europa.eu/rapid/press-release_MEMO-12165_en.htm); and the 2011, 2012, 2013 Commission Annual Reports on the Application of the EU Charter of Fundamental Rights (SWD(2012) 84 final (p 81); SWD(2013) 172 final (p 90); SWD(2014) 142 final (p 45).

The EU Rule of Law Framework 201 requires ‘a serious and persistent breach’.9 In practice these mechanisms will only be used in extreme scenarios and as a last resort.

C.  The Need to Address Intermediate Situations The experiences in recent years have shown that the existing instruments at EU level are not always adequate for a swift and effective reaction against threats to the rule of law. In particular it is important for the EU to have tools to address systemic threats to the rule of law in a Member State which cannot be addressed through infringement proceedings because they fall outside the scope of EU law, and which cannot be addressed by the mechanisms of Article 7 TEU either, because they remain below the high threshold established in that Article. This explains why President Barroso said in September 2012, in his annual State of the Union speech to the European Parliament, ‘We need a better developed set of instruments, not just the alternative between the “soft power” of political persuasion and the “nuclear option” of Article 7 TEU’.10 In the following year’s State of the Union speech, he said that experience has confirmed the usefulness of the Commission role as an independent and objective referee. We should consolidate this experience through a more general framework … The Commission will come forward with a communication on this. I believe it is a debate that is key to our idea of Europe.11

This diagnosis was largely shared by other EU institutions and stakeholders. In March 2013, the foreign ministers of Denmark, Finland, Germany and The ­Netherlands sent a letter to President Barroso calling for more European safeguards to ensure compliance with fundamental values of the EU in the ­Member States. This was followed in April 2013 by a discussion in the General Affairs Council.12 In June 2013, the Justice and Home Affairs Council adopted Conclusions on fundamental rights and rule of law calling on the Commission ‘to take forward the debate in line with the Treaties on the possible need for and shape of a collaborative and systematic method to tackle these issues’.13 The European

9 For more explanations on these mechanisms, see Communication of the Commission of 15 October 2003, ‘Respect for and promotion of the values on which the Union is based’ COM(2003) 606 final. 10  See the speech here: http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm. 11  http://europa.eu/rapid/press-release_SPEECH-13-684_en.htm; see also, speech of Vice-President Reding in September 2013, EU Justice Commissioner, ‘The EU and the Rule of Law—What next?’ (http://europa.eu/rapied/press-release_SPEECH-13-677_en.htm). 12 Council of the European Union Press Release: www.consilium.europa.eu/uedocs/cms_Data/ docs/pressdata/EN/genaff/136915.pdf (22 April 2013). 13  Council of the European Union, Justice and Home Affairs Council meeting: www.consilium. europa.eu/uedocs/cms_data/docs/pressdata/en/jha/137404.pdf (6 and 7 June 2013).

202  Emmanuel Crabit and Nicolaas Bel ­ arliament adopted a number of Resolutions14 calling for an effective mechanism P for a regular assessment of Member States’ compliance with the fundamental ­values of Article 2 TEU and for a mechanism for crisis situations with appropriate forms of intervention.15 During the Assises de la Justice, a high level conference organised in November 2013 by the Commission on the future of justice in the EU, the need for a more active role of the EU in this area was voiced by different sides as well.16 As a follow up to this diagnosis, the Commission issued its Communication in March 2014 introducing a new EU Framework to strengthen the Rule of Law.

III.  WHAT ARE THE CONCEPTUAL COMPONENTS OF THE EU RULE OF LAW FRAMEWORK?

A.  The Objective of the EU Rule of Law Framework The objective of the Framework is to prevent, through a dialogue with the Member State concerned, an emerging systemic threat to the rule of law escalating further into a situation where the Commission would need to make use of its power of issuing a proposal to trigger the mechanisms of Article 7 TEU. If this threat cannot be effectively addressed by the safeguards which exist at national level, there is a reason for the EU to step in. In such situations, the Commission will use the Framework if the existing instruments at EU level, in particular infringement proceedings and the mechanisms of Article 7 TEU, cannot be applied. The fact that the Framework refers to the ‘rule of law’, and not to the other values listed in the first sentence of Article 2 TEU, does not mean that those other values are less important. There can be no democracy and fundamental rights

14 European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (based on the Tavares Report), (www.europarl.europa.eu/ sides/getDoc.do?type=TA&reference=P7-TA-2013-0315&language=EN&ring=A7-2013-0229); European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the ­European Union (2012) (based on the Louis Michel Report), (www.europarl.europa.eu/sides/ getDoc.do?type=TA&reference=P7-TA-2014-0173&language=EN&ring=A7-2014-0051); European Parliament resolution of 12 March 2014 on evaluation of justice in relation to criminal justice and the rule of law (based on the Kinga Göncz Report), (www.europarl.europa.eu/sides/getDoc.do?type=TA& language=EN&reference=P7-TA-2014-0231); The European Parliament resolution of 2 April 2014 on the mid-term review of the Stockholm Programme welcomed the Framework whilst stressing that a ­regular assessment of Member States’compliance with the fundamental values of Art 2 TEU remains necessary (§ 17) (www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7TA-2014-0276). 15  European Parliament resolution of 12 March 2014 on evaluation of justice in relation to criminal justice and the rule of law, § 6. 16 A session was specifically dedicated to the topic ‘Towards a new rule of law mechanism’. A Commission discussion paper 4: Rule of Law was prepared and written contributions were submitted; all documents are available at: http://ec.europa.eu/justice/events/assises-justice-2013/index_en.htm.

The EU Rule of Law Framework 203 without respect for the rule of law and vice versa. Rule of law is the vehicle for ensuring compliance with democracy and human rights; in other words, the ‘guarantee of the guarantees’. Therefore the Framework will enable protection of all the values of Article 2 TEU.

B.  ‘National Rule of Law Safeguards’ The Framework will be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law.17

Whatever the national constitutional and judicial systems, all Member States have established particular institutions and mechanisms to secure the rule of law. These national rule of law safeguards are, for example, an independent and effective justice system, the constitutional court, or other mechanisms to ensure the enforcement of the law and the respect of obligations of EU law and international law. If these safeguards fail to operate in a Member State, there is no longer rule of law and EU values can no longer be properly protected. For this reason, the Framework will be activated only in situations where these national rule of law safeguards fail to function properly or come under threat. The Framework therefore complements and supports the institutions and mechanisms which exist at national level, acting as a ‘safeguard for the safeguards’. This support given to the national rule of law safeguards will protect all the values enshrined in Article 2 TEU. For example, if there is a case of massive electoral fraud which puts at risk the functioning of democracy in a Member State, and the mechanisms at national level (for example, validation by the constitutional court or electoral committee) to ensure the fairness and validity of the elections (the national ‘rule of law safeguards’) are not functioning, there is a rule of law crisis which will need to be addressed through the Framework.

C.  ‘Systemic Threat to the Rule of Law’ The Framework addresses systemic threats to the rule of law. It is not designed to address individual breaches of fundamental rights. These cases can and should be dealt with by the national judicial systems, and in the context of the control mechanisms established under the European Convention on Human Rights to which all EU Member States are parties.

17 

S 4.1 of the Communication.

204  Emmanuel Crabit and Nicolaas Bel A systemic threat to the rule of law can occur, for example, when the constitutional structure, separation of powers, or the independence of the judiciary is negatively affected by new measures or widespread practices of public authorities and the lack of domestic redress. Also the absence of measures by national authorities can be covered, as the Framework can be applied in case national authorities are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law. The ‘systemic’ nature of the threats will need to be assessed on a case by case basis in light of their characteristics, the context and all the circumstances surrounding the situation at stake. The case law of the Court of Justice and of the European Court of Human Rights relating to the notion of ‘systemic deficiencies’ can also be relevant for such assessment, in particular in terms of methods, source of information and the burden and intensity of the proof needed to arrive at the conclusion that a particular situation qualifies as ‘systemic’.18

D.  ‘Rule of Law Crisis’ The Framework has been designed to address situations in which systemic threats to the rule of law emerge in a Member State and may escalate further, in other words, to address ‘rule of law crises’. The Framework does not entail a new general regular reporting or monitoring mechanism. Experience has shown that the most urgent need is not so much for a new reporting mechanism, but rather for improving the EU’s capacity to act and intervene swiftly in certain types of crisis situations relating to the rule of law.

E.  The Power of the Commission to Establish the Framework The Framework is directly linked to the powers conferred on the Commission by Article 7 TEU: the Commission may present a proposal19 to trigger the preventive or sanctioning mechanisms provided in Article 7 TEU. The Framework describes how the Commission intends to deal with situations that could develop into a clear risk of a serious breach by a Member State of the rule of law—and hence would justify issuing such a ‘proposal’.

18  As regards the Court of Justice, see, for example, Joined Cases C-411/10 and 493/10 NS and ­Others, not yet published, paras 94 and 106; Case C-4/11 Germany v Kaveh Puid, not yet published, para 36; Case C-394/12 Shamso Abdullahi v Bundesasylamt, not yet published, paras 60 and 62. As regards the European Court of Human rights see for example, Mohammadi v Austria App no 71932/12, para 68 and 74; MSS v Belgium and Greece App no 30696/09, para 300; see also cases referred to in the European Court of Human Rights Factsheet-Pilot judgments, September 2014. 19  Art 7(1) TEU refers to ‘a reasoned proposal’ whilst Art 7(2) refers to ‘a proposal’.

The EU Rule of Law Framework 205 It provides for a dialogue with the Member State concerned, which includes, where relevant, a recommendation. This is a political process—albeit ­formalised—not a legal one. The objective is to find a solution with the Member State concerned where possible, in order to avoid recourse to a proposal to trigger Article 7 TEU. The Framework does not constitute or claim new competences for the Commission, but makes transparent how the Commission intends to play its role in case systemic threats to the rule of law emerge in a Member State. For these actions, no treaty change is required. The Framework as presented in the Communication is in itself operational and does not require additional measures by the European Parliament or the Council before it can be used. To a large extent, it sets out steps which the Commission has already taken in past cases.

IV.  HOW WILL THE EU RULE OF LAW FRAMEWORK FUNCTION?

The Framework aims at finding a solution through a dialogue with the Member State concerned. To be effective, the Framework: —— allows for swift and concrete actions to address the systemic threat and to avoid the use of Article 7 TEU mechanisms. Experience has shown that the capacity to act swiftly is essential in case of crisis situations relating to the rule of law. —— ensures the respect of the principle of equal treatment of Member States. By setting out in advance the benchmarks for applying the Framework, the Commission establishes the conditions for treating all Member States equally. —— ensures an objective and thorough assessment of the situation at stake. This is important for ensuring that the Commission acts with complete impartiality and independence. The Framework establishes a three stage process. First, the Commission assessment: the Commission will analyse the relevant information and assess whether there are clear indications of a systemic threat to the rule of law. In order to obtain expert knowledge on particular issues relating to the rule of law in Member States, the Commission may always seek external expertise, in particular to obtain a comparative analysis on how the same issue is dealt with in other Member States. Such comparative analysis is important for ensuring equality between Member States, bearing in mind that the comparison needs to take into account the situation at stake in its context, avoiding a static reading of legislation only. Depending on the situation at stake, external expertise could be provided by the Council of Europe and its Venice Commission, but also by members of the Judicial Networks in the EU20 or by the EU Agency for Fundamental Rights. If the Commission considers 20  Such as the Network of the Presidents of the Supreme Judicial Courts of the European Union, Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union or European Network of Councils for the Judiciary.

206  Emmanuel Crabit and Nicolaas Bel that there is a systemic threat to the rule of law, it will send a ‘rule of law opinion’ to substantiate its concerns and will give the Member State concerned the possibility to respond. Second is the Commission recommendation: in a second stage, unless the matter has already been satisfactorily resolved, the Commission will issue a ‘rule of law recommendation’ addressed to the Member State. It will recommend that the Member State solves the problems identified within a fixed time limit and informs the Commission of the steps taken to that effect. The Commission will make its recommendation public. Third is the follow-up to the Commission Recommendation. In a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission may consider resorting to one of the mechanisms set out in Article 7 TEU. The Communication underlines that it is expected from the Member State concerned that it cooperates throughout the process and refrains from adopting any irreversible measure in relation to the issues of concern, pending the assessment of the latter, in line with the duty of sincere cooperation set out in Article 4(3) TEU. Whether a Member State fails to cooperate in this process, or even obstructs it, will be an element to take into consideration when assessing the seriousness of the threat. The European Parliament and the Council will be kept regularly and closely informed of progress made in each of the stages. The role of the European Parliament and of the Council—in addition to the action of the Commission—will be important in reinforcing the EU’s determination to uphold the rule of law within its borders. It will also be important to continue the good cooperation with the Council of Europe whose expertise and experience in this area is an asset.

V. CONCLUSIONS

In a time where any EU intervention is often questioned and perceived as an intrusion into the national legal system, it is remarkable that respect for the rule of law in Member States has become an issue of common interest which can no longer be seen as a purely national matter. In addition to being a legal principle, it has also become in only a few years an EU legal policy matter. Experience has shown that respect for the rule of law in Member States requires a pro-active stance, with more involvement as well as determination from EU institutions. The Framework reflects the commitment of the Commission to fully play its role of guardian of the values in the dynamic legal order of the EU.

12 Global Activities and Current Initiatives in the Union to Strengthen the Rule of Law—A State of Play ANDREAS J KUMIN*

I.  INTRODUCTORY REMARKS1

T

HE PRESENT CONTRIBUTION will first briefly highlight a few of the most important on-going activities at the global and regional levels to strengthen the rule of law. The reason for this lies in the firm conviction of the author that it seems important for the European Union (EU) and its Member States not to act in ‘splendid isolation’ and also to avoid reinventing the wheel. Instead, we should strive to build on other experiences and foster mutual exchange of information. Those other projects do not only provide for a useful framework for the efforts undertaken within the EU, but they could also be used as a source of inspiration and guidance. Lessons learned by the EU and its Member States in their own remit could reversely be fed back into these processes, thus creating a bi-directional effect of cross-fertilisation. I will, therefore, as a second step, present some of the most recent initiatives taken within the EU to strengthen the adherence by its Member States to the fundamental values on which the EU is based, including good governance, the rule of law and the respect for human rights and fundamental freedoms, and introduce the main substantial and procedural features of these endeavours. In doing so, a thematic and an institutional backdrop will be designed for the subsequent contributions and debates within the EU on this topic.

*  Any views or opinions presented in this contribution are solely those of its author and do not necessarily represent those of his employer. 1  A pre-view of this contribution has been published, with the kind permission of Hart ­Publishing and the editor of this volume, in a non-edited and non-reviewed form in (2014) 69 Zeitschrift für ­öffentliches Recht, ZÖR 397–417 as part of the following article: T Fülöp and AJ Kumin, ‘Recent ­Austrian Practice in the Field of European Union Law. Report for 2013’. The author wishes to thank Konrad Bühler for his particularly valuable information with regard to the global dimension of the rule of law, Helmut Tichy for his very helpful suggestions to add precision in substance and drafting as well as Judith Köbler for carefully proof-reading and formatting the manuscript.

208  Andreas J Kumin II.  GLOBAL AND REGIONAL ACTIVITIES

At the global and regional levels, numerous activities take place in the field of the rule of law and a great many different types of actors take the lead or intervene. Discussions are being held in various fora and organisations such as the United Nations (UN), the World Bank and the Council of Europe (CoE) or the Organization for Security and Co-operation in Europe (OSCE). The focus here will be placed on the most important ones as well as on the less well known ones and in particular on those which are not represented in this volume by their own contributions.

A.  Global Activities Starting off at the universal scale and with the largest family of States involved, the UN, we observe that the rule of law has become an increasingly important topic ever since the World Summit held in 2005. From there, the issue has significantly spread to many UN organisations, bodies and agencies which are working in very varied fields of policies and activities at the headquarters as much as in the field: among these are the UN Development Programme (UNDP), the Office of the High Commissioner for Human Rights (OHCHR), the Office of Legal Affairs (OLA), the Vienna-based UN Office on Drugs and Crime (UNODC), the Department for Peace-Keeping Operations (DPKO) and the UN Commission on International Trade Law (UNCITRAL), also based in Vienna. One can keep track of the evolution of these different strands of work related to the rule of law through the internet.2 A key event, of course, took place at the UN Headquarters in New York on 24 September 2012 when a High Level Meeting of the 67th Session of the General Assembly was especially dedicated to the rule of law, bringing together Member States, various organisations, non-governmental organisations and civil society represented at the highest level. The Heads of State and Government assembled at that meeting adopted by consensus a declaration3 reaffirming the commitment to the rule of law and giving important political impetus to the global rule of law agenda. Many UN Member States, including EU Members, made voluntary pledges to strengthen the rule of law.4 In the aftermath of the 2005 World Summit, strongly advocated by Austria,5 a ‘UN Rule of Law Unit’ and a ‘Rule of Law Coordination and Resource Group’ 2 

See at: www.un.org/en/ruleoflaw and www.unrol.org. Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UNGA Res 67/1 (24 September 2012) UN doc A/RES/67/1. 4  See the list of pledges at: www.unrol.org/article.aspx?article_id=170. 5  KG Bühler, ‘The Austrian Rule of Law Initiative 2004–2008—The Panel Series, the Advisory Group and the Final Report on the UN Security Council and the Rule of Law’ (2008) 12 Max Planck Yearbook of United Nations Law 409–46. 3 

State of Play on Global and EU Initiatives 209 were established at headquarters in New York, chaired by the UN Deputy Secretary General (Ian Eliasson). Their main task was defined as strengthening the co-ordination and co-operation on this issue throughout the UN family. But also on the side of the membership, some organisational steps have been taken. Already since 2004, Austria has been chairing the ‘Group of Friends of the Rule of Law’ in New York, an informal cross-regional group of like-minded countries which are supporting the strengthening of the rule of law at the national and international levels. Amongst other activities of the group we count co-ordinated group statements at UN Security Council or General Assembly sessions. A UN rule of law Indicators Project had already been launched in 2008 as a joint initiative of DPKO and OHCHR. This project serves as a tool for assessing the rule of law in post-conflict situations over time and works to develop indicators which can be used to identify the strengths of, and challenges faced by, the rule of law sector in a given country in order to assist national authorities in their reform efforts. Focus is laid on criminal justice institutions and on legislation and on obtaining information on law enforcement agencies, the judicial system, the correctional services and the transformation of these institutions over time. These indicators were first tested in Haiti and Liberia. For the report on this project see the respective UN website.6 The further development of the political rule of law debate at the UN level after the above-mentioned High Level Meeting has not always been harmonious, though. Rule of Law sometimes even may become a controversial topic, in particular when clearly different political approaches are taken by different countries, for example, from either side of the North–South divide. Currently, difficult ­discussions are being held in New York in the context of establishing the Sustainable Development Goals (SDG). In that context, Austria and the said Group of Friends are consistently advocating that the rule of law forms an integral part of the post-2015 development agenda. When it comes to other organisations, I would like to briefly refer to the World Bank first. Although the World Bank might not be generally known to be very active in the field of rule of law, it holds nevertheless true that rule of law clearly is a major goal of development policy in general and one which is also pursued by the World Bank. This is, by the way, illustrated by the political goals that the EU defines for its own development co-operation policy in Article 208 Treaty on the Functioning of the European Union (TFEU), which refers back to the general principles and objectives for the external action of the EU in Article 205 TFEU and Article 21 paragraphs 1 and 2 Treaty on European Union (TEU). Among these principles and objectives, the consolidation of and support for democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms and the principles of international law as well as the fostering of

6 UN, Rule of Law Indicators: Implementation Guide and Project Tools (United Nations, 2011) www.un.org/en/events/peacekeepersday/2011/publications/un_rule_of_law_indicators.pdf.

210  Andreas J Kumin a sustainable economic, social and environmental development of developing countries are mentioned. Well-functioning law and justice institutions and a government bound by the rule of law are doubtlessly important factors for the economic, political and social development within a constitutional framework of good governance. Therefore, two activities of the World Bank shall be highlighted here. First, the World Development Report 2011 on conflict, security and development, which deals with important rule of law aspects of accountability and criminal justice in response to the challenge of repeated cycles of violence.7 And secondly, the Worldwide Governance Indicators (WGI) project which reports aggregate and individual governance indicators for 215 economies over the period 1996–2012.8 For these purposes, the following six dimensions of governance have been identified: (1) voice and accountability; (2) political stability and absence of violence; (3) government effectiveness; (4) regulatory quality; (5) rule of law; and (6) control of corruption. The International Development Law Organization (IDLO)9 is a sort of hidden ‘gem’ since it is not so widely known. The fact is, however, that it is the only intergovernmental organisation with an exclusive mandate to promote the rule of law. Having its seat in Rome and being funded by voluntary contributions, it implements important rule of law training programmes in developing countries (for example, Afghanistan). Moreover, it maintains a worldwide network of 47 IDLO Alumni Associations of former participants with a view to achieving sustainability. Since one of the main features of rule of law relates to the absence of corruption, the fight against corruption constitutes a very important aspect of the global efforts to improve the overall rule of law situation. In this field, the International Anti-Corruption Academy (IACA)10 deserves mentioning. With its headquarters in Laxenburg near Vienna, the Academy is an international organisation which aims at contributing to the fight against corruption through education, research and co-operation. The founding instrument of the Academy already counts as many as 54 parties, being both States and international organisations, and 53 ­signatories. The budget is also funded by voluntary contributions. Last, but not least, amongst the organised civil society, we especially need to refer to the World Justice Project (WJP) and the ‘Rule of Law Index’ it has developed. The WJP happens to be an initiative launched by the American Bar Association: the WJP Rule of Law Index® measures how the rule of law is experienced in everyday life in 99 countries around the globe. The data are being collected through over 100,000 households and 2,400 expert surveys worldwide. As such, this represents the most comprehensive index of its kind and the only one relying 7 See World Bank, ‘World Development Report 2011: Conflict, Security, and Development.’ (2011) World Bank Open Knowledge Repository: wdronline.worldbank.org/worldbank/a/c.html/ world_development_report_2011/abstract/WB.978-0-8213-8439-8.abstract. 8 See D Kaufmann, A Kraav and M Mastruzzi, ‘The Worldwide Governance Indicator (WGI) ­Project’ (2013) The World Bank Group: info.worldbank.org/governance/wgi/index.aspx#home. 9  International Development Law Organization: www.idlo.int. 10  International Anti-Corruption Academy: www.iaca.int.

State of Play on Global and EU Initiatives 211 solely on primary data, which deserves respect. From a scientific point of view, however, the objectivity of the data and the value of the methodology can be questioned. Adherence to the rule of law is assessed by using 47 indicators organised around the following eight themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice. The rule of law Index gives country scores and rankings.11

B.  Regional Activities Amongst the relevant regional activities, in particular the rule of law activities of the CoE and the OSCE need to be mentioned. The CoE has a long-standing tradition of working to improve the human rights and democracy situation of its members. It bases its efforts on different sources of law and different institutions, many of them having become role models for other regional organisations pursuing similar objectives. We should never forget, by the way, that the CoE has been the cradle for the process of integration which has developed into the EU as it is today, and that the fundamental values of the EU and the basis for its system for the protection of fundamental rights has been inspired by the CoE. In referring the reader principally to chapter 7, the contribution of the distinguished legal adviser of the CoE in this volume, I will only mention the names of the most important legal instruments and mechanisms active under the auspices of the CoE. First and foremost, the magna carta europea for human rights and fundamental freedoms, which is the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR) primarily tasked to monitor compliance with the Convention by the States Parties. The EU has been intensively working together with the CoE to make some good progress on its long-standing plans of becoming party to the Convention. Institutionally speaking, the Commissioner for Human Rights as well as the Venice Commission (European Commission for Democracy through Law) ought to be remembered. The Venice Commission, apart from dealing with concrete questions relating to country situations, has also issued a ‘Report on the Rule of Law’ in March 2011.12 In the larger rule of law debate, one of the special fields of interest is the safeguarding of human rights in the justice systems. With CEPEJ, the European Commission for the Efficiency of Justice, which undertakes a regular evaluation of the Member States, the CoE has equipped itself with a very practical tool. Next come the Group of States against Corruption (GRECO), championing the fight against corruption, and, in several other fields of norm-setting of the 11 WJP Rule of Law Index 2014, (2014) World Justice Project: worldjusticeproject.org/rule-oflaw-index. 12  Venice Commission, ‘Report on the Rule of Law’ (2011) Council of Europe: www.venice.coe.int/ webforms/documents/?pdf=CDL-AD(2011)003rev-e.

212  Andreas J Kumin CoE, various c­ ontinuous processes of monitoring. At the latest meeting of the CoE Committee of Ministers held in Vienna on 6 May 2014, the Member States of the CoE, for the first time since its foundation and on the basis of a report prepared by the Secretary General, discussed the general state of democracy, human rights and rule of law in Europe.13 We would be completely amiss if we did not at least state the name of the Organization for Security and Co-operation in Europe (OSCE) which makes various contributions, not least due to its particular history, to improve the rule of law in its Participating States. One of the relevant mechanisms constitutes, by way of example, the Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw which supports judicial and legislative reforms to ensure that judiciaries operate free from undue influence. ODIHR also assists criminal justice reform in compliance with human rights standards to support the development of robust legal professions and, in order to strengthen fair trial guarantees, uses trial monitoring as an assessment tool to promote reforms based on rule of law principles in the area of criminal, civil and administrative justice.14 This leads us now to the sub-regional level in Europe represented for the purposes of our discussion by the EU. By way of introduction and before entering into the details of the different EU related endeavours to foster the rule of law in the EU Member States, it seems worthwhile to depict the political setting in which these happen. III.  CURRENT INITIATIVES IN THE EUROPEAN UNION15

A.  Problems and Shortcomings A significant, if not at first sight surprising, feature of the present rule of law debate in the EU lies in the fact that starting from 2012 onwards, several initiatives have been taken concerning the rule of law and the respect for fundamental rights and values in different contexts. And even if we are faced with a rich variety of institutional actors and thematic focusses, one could speak of a genuine renaissance of an EU discourse on fundamental values, rule of law and constitutional principles. While this is, prima facie, not necessarily bad news, if not quite the contrary, it may, however, be useful to point out that there exists a certain link to the widespread misgivings amongst the European citizens throughout the Member States

13  T Jagland, ‘State of Democracy, Human Rights and the Rule of Law in Europe: Report by the Secretary General of the Council of Europe’ SG (2014)1—FINAL: hub.coe.int. 14  OSCE, ‘Rule of Law’ (2014) www.osce.org/odihr/rol. 15  cf AJ Kumin, ‘Rechtsstaatlichkeit in Gefahr? Aktuelle Initiativen zur Stärkung der Grundwerte der Europäischen Union in den Mitgliedstaaten’ in W Benedek, HP Folz, H Isak, MC Kettemann and R Kicker (eds), Bestand und Wandel des Völkerrechts: Beiträge zum 38. Österreichischen Völkerrechtstag 2013 in Stadtschlaining (Frankfurt am Main, Lang, 2014) 156–73.

State of Play on Global and EU Initiatives 213 and over the last couple of years about the current state of European integration, also as a consequence of the economic and monetary crisis. In order to better understand this very context we are acting in, we will offer a preliminary analysis of the underlying structural problems which profoundly inspired the initiative taken by the Irish Presidency of the Council in 2013, amongst others. It was triggered first by various continuing problems and an increasing number of incidents of xenophobia and intolerance in numerous Member States involving hate speeches, racist assaults, inter alia also against Romani people as well as a lack of tolerance towards foreigners and homosexuals. Tackling such phenomena lent itself to be dovetailed with a regular on-going review of transposition into national law and implementation by Member States’ authorities of existing Union measures concerning non-discrimination and the area of freedom, security and justice. Secondly, severe political problems kept recurring in some Member States concerning the respect for the basic rules of the functioning of politics and the judiciary and the fight against corruption.16 Several EU institutions had been trying to cope with these problems but managed mainly to eliminate the symptoms without addressing the diseases. Such acute incidents made our Irish colleagues realise that existing approaches are not enough to guarantee the respect for the rule of law and the fundamental values in general as well as fundamental rights, the independence of justice and the prevention of corruption in particular.17 On a more general level affecting potentially the whole sample of Member States, analysts have come to insist on the so-called ‘Copenhagen dilemma’ as one of the factors lying at the heart of the problem. What do we mean by this term? In the process of becoming a Member of the EU, respect for Rule of Law, democracy and fundamental rights is an indispensable requirement for obtaining candidate status in accordance with Article 49 TEU. These requirements have been called ‘Copenhagen criteria’ since these membership criteria to which Article 49 TEU explicitly refers were agreed upon in that city at a meeting of the European Council during a Danish Council presidency in 1993. ‘Justice and Fundamental Rights’ are even a separate chapter during the screening of the convergence of the candidate country’s body of law with the EU Acquis and the subsequent accession negotiations. After accession has become effective, however, no continuous monitoring takes place any more. This is surprising, if one takes into account that mutual trust needs to be continually present in the framework of such intense relations between States, their citizens and their enterprises that exist in the EU.18 Moreover,

16  U Sedelmeier, ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession’ (2014) 52 Journal of Common Market Studies 105–21. 17  cf also A von Bogdandy and M Ioannidis, ‘Systematic Deficiency in the Rule of Law: What it is, what has been done, what can be done’ (2014) 51 CML Rev 59–96. 18  See also the frequent mention that is made of this aspect in the Report of the Advisory Council on International Affairs (AIV), ‘The Rule of Law: Safeguard for European Citizens and Foundation for European Cooperation, No 87’ (January 2014) AIV: www.aiv-advies.nl/ContentSuite/upload/aiv/doc/ webversie_AIV87_ENG_2(1).pdf.

214  Andreas J Kumin the principles of loyal co-operation and of homogeneity require a level playing field not only concerning internal market affairs but also in the political life. Non-compliance of Member States will not remain completely unpunished, however, as we find in Article 7 TEU mechanisms for reacting to situations where the fundamental values common to the EU as listed in Article 2 TEU and the fundamental rights (Article 6 TEU) are jeopardised in an EU Member State or actually infringed. For concrete violations of individual obligations resulting from norms of primary or secondary EU law, the so-called infringement procedure (Article 258 TFEU) may be triggered by the European Commission. The European Court of Justice19 may then even issue binding judgments stating the violation by the Member States, thus obliging it indirectly to immediately redress the matter, or impose quite substantial sums of money in the form of a fine if the unlawful situation persists. Yet, experience has shown that these instruments are too rulesbased, too formalised and restricted to the concrete implementation of EU law and are not adapted to a situation where the threat results from a combination of, sometimes even diffuse, seemingly isolated measures of a political nature in the remit of primarily national competences and which do not directly relate to norms or even policies of the EU. This has led to a situation where the Article 7 procedure has not been applied in practice because it is regarded as being politically too sensitive (‘nuclear weapon’). Instead of a measure of last resort, this procedure might become a measure of no resort at all.20 Another dimension is added to this already rich picture of shortcomings by the insufficient coherence in the EU action on human rights and good governance internally and externally. Due to the resistance of the Member States, who are the ‘masters’ of the founding treaties, and for fear of a competence creep, the EU lacks a legal basis for a genuine internal human rights policy. It is only called to address isolated aspects of rule of law and fundamental rights issues, in the context of fighting non-discrimination or other policies like the free movement of persons, justice and interior, labour relations or social affairs. By contrast, in its manifold relations to third States (neighbourhood policy, accession and so on), the EU lays constant emphasis on the rule of law, human rights and good governance. Sometimes even a strict conditionality as regards the allocation of funds is established by the EU, for example by its development co-operation instruments, and a bad state of affairs may serve as a trigger for ‘restrictive measures’ (‘sanctions’) in its political and economic relations with third States. Such a mismatch is not only

19  As to its overall contribution to build the EU as a union of values cf MK Moser, ‘Allgemeine Rechtsgrundsätze in der Rechtsprechung des EuGH als Katalysatoren einer europäischen Wertegemeinschaft: Anmerkungen zu Entwicklung, Stand und Möglichkeiten der Europäischen Integration durch Recht(-sprechung)’ (2012) 1 Zeitschrift für Europarecht, int Privatrecht und Rechtsvergleichung 4–19. 20  A von Bogdandy, M Kottmann, C Antpöhler, J Dickschen, S Hentrei and M Smrkolj, ‘Reverse Solange—Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CML Rev 489–520.

State of Play on Global and EU Initiatives 215 often criticised by the other States with which the EU enters into contact, but also internally by its own Member States.

B.  The Initiative of the Irish Presidency of the Council in 2013 Turning now to the Irish initiative, major early stages thereof have been debated at the informal meeting of Justice and Home Affairs (JHA) Ministers in January 2013, which was immediately followed by the establishment of an informal ad hoc group, composed of representatives of the EU Fundamental Rights Agency and of like-minded Member States. The group was tasked to accompany the next steps and deliberations on possible ways and means to tackle the abovementioned problems. Participants, apart from the Irish presidency, came from the subsequent rotating Council presidency during the second semester of 2013, Lithuania, as well as from the Netherlands, Sweden, Finland, Poland, the United Kingdom and Austria, which the author had the honour to represent. During its six month tenure, Ireland organised an international conference in Dublin on 9–10 May 2013 where representatives of the governments of the Member States and the Commission, national human rights institutions, ombuds-institutions, international organisations, for example the CoE, OSCE/ODIHR and the UN, as well as civil society and NGOs met to explore different dimensions of the rule of law issue. On the 6 and 7 June 2013, the EU Fundamental Rights Agency convened in Vienna for its fourth annual conference, which this time was especially dedicated to criteria and indicators for measuring the emergence of a rule of law-problem, based on a scientifically sound methodology.21 On the very same days, the JHA Council in Luxemburg met and adopted Council conclusions with a clear focus on the rule of law, also addressing aspects of fundamental values and current problems in certain Member States. As a summing up of the Irish Presidency’s efforts as well as laying the foundations for further work on the topic, the Council sketched out a process in two stages: first, an invitation to the European Commission to organise an open consultation; and second, the development of a mechanism/method or approach based on the insights gained in the first stage. This open consultation undertaken by the Commission culminated in the conference on the functioning of Justice called ‘Assises de la Justice’ which took place in Brussels on 21 and 22 November 2013.22 For the further follow-up by the Commission to these impulses, also in the area of justice and home affairs, see section D below.

21 

See contribution by Gabriel Toggenburg in this volume. Commission, ‘Assises de la Justice’ (2013) European Union: ec.europa.eu/justice/ events/assises-justice-2013/index_en.htm. 22 European

216  Andreas J Kumin C.  The Initiative of ‘Four Member States’ Another important source for the work undertaken by the Member States in their capacity as members of the Council of the EU was furnished by the initiative of the ‘Four Member States’. In a joint letter to European Commission President Barroso in March 2013, the four foreign ministers of Germany, the Netherlands, Finland and Denmark proposed the creation of a ‘mechanism’ preceding the procedures laid down in Article 7 TEU. Basic features of such a mechanism are the involvement of the European Commission, the holding of consultations with the Member State in question, the conclusion of binding agreements of the Commission with the Member State in question on the changes to be implemented in order to resolve the situation, as well as the involvement of the Council at an early stage of the procedure. Although the political emphasis was not put on this aspect by the four proponents, they did not exclude the possibility of the suspension of EU funding for the Member State concerned as a sanction for continuous noncompliance. The putting into practice of this proposal in its entirety could imply an amendment of the treaties, if this would be seen as a necessary step subject to a preliminary legal assessment. It did not come as a big surprise that the basic lines of this proposal sketched out above echoed to a great extent a nucleus of this proposal already contained in the final report of the ‘Future of Europe Group’.23 The respective report was published in September 2012.24 A ‘light mechanism’ to be created for the safeguarding of the rule of law had already been mentioned in the conclusions of the informal discussions that assembled, during various sessions throughout the year 2012, the foreign ministers of a group of EU Member States, amongst them some of the four Member States mentioned above, and which was co-ordinated by the then German foreign minister Guido Westerwelle. By this mechanism, the European Commission would be enabled to draw up a report in the case of concrete evidence of violations of the values referred to in Article 2 TEU and to make recommendations or to refer the matter to the Council. The mechanism would only be triggered by an apparent breach of fundamental values or principles, like the rule of law, by a Member State. The follow-up action by the Council on the initiative by the four Member States involved a presentation by the proponents and preliminary discussions in the General Affairs Council on 22 April and 25 June 2013. The other Member States expressed their broad support for the general line of the proposal, although some of them, and also the European Commission, initially seemed a bit reluctant to put it into operation in the short term. The impression prevailed that one of the

23  For more information on the group see Federal Foreign Office, ‘For a Better Europe’ (2012) F ­ ederal Republic of Germany: www.auswaertiges-amt.de/EN/Europa/Aktuell/120918-Zukunftsgruppe_ Warschau_node.html. 24 See Federal Foreign Office, ‘Final Report of the Future of Europe Group’ (2012) Federal Republic of Germany: www.auswaertiges-amt.de/cae/servlet/contentblob/626322/publicationFile/ 171844/120918-Abschlussbericht-Zukunftsgruppe.pdf.

State of Play on Global and EU Initiatives 217 reasons was the greater focus the Commission put on legal aspects and the necessity of a treaty amendment to come up with really effective remedies. We should also not completely lose sight of the parallelism in time with the pre-election­ period for the renewal of the European Parliament which was to take place in June 2014, and the difficulties that many governments of EU Member States encountered with regard to convincing their citizens of the added value of the EU. A further discussion on the initiative was only held in the General Affairs Council on 18 March 2014, this time on the basis of the Commission communication mentioned in section D below. Once again, the communication received mainly a positive preliminary reaction by the assembled Member States. A few critical remarks have been made though, for example, on the question whether a legal basis in the founding treaties of the EU exists for the measures envisaged by the Commission in its new framework. Questions with regard to the role of the Council were asked, in particular, in terms of its political involvement and how it would address specific cases in response to the information it would be offered by the Commission on the different steps taken in its three steps procedure. Other queries referred to the criteria and triggers to be used (‘systemic threat’), the sources of information, the safeguarding of the equality of Member States, the possible tension of such procedures with the principles of subsidiarity and of proportionality. Further Council debates and possible conclusions are to be expected, the exact timing and content of which are not yet predictable at this stage.

D.  Approaches by the Other EU Institutions Last, but far from least, we will discuss the activities undertaken by the other two major EU institutions, the European Commission and the European Parliament, thus completing the golden triangle in every discussion on fundamental reforms in the EU. As far as the European Commission is concerned, prominent representatives thereof have made, at several and very important occasions, recurrent references to the need for the EU to better equip itself in order to prevent and, if necessary, push back challenges to the rule of law and the protection of fundamental values and human rights. In his speeches on the ‘State of the Union’ in 2012 and 2013 respectively, Commission President Barroso called for the establishment of a new mechanism.25 Likewise, Vice-President Reding expanded on her ideas on possible systematic measures for the overall improvement of the rule of law-situation in the EU, above all in the course of the debates in the European Parliament in which she participated on behalf of the Commission on the situation in Hungary. She also did so in her speech before the Centre for European Policy Studies (CEPS) 25  JMD Barroso, ‘State of the Union Address 2012’ (2012) European Commission press release: europa. eu/rapid/press-release_SPEECH-12-596_en.htm; JMD Barroso, ‘State of the Union Address 2013’ (2013) European Commission press release: europa.eu/rapid/press-release_SPEECH-13-684_en.htm.

218  Andreas J Kumin in September 2013,26 where she clearly differentiated between those measures that can be implemented within the existing legal framework of the EU and those which would imply treaty revision. Apart from pieces of political information and communication with forwardlooking ideas, the Commission has also launched a concrete project in the field of justice and home affairs. In 2013 and in 2014, the Commission published a communication27 with the title ‘justice scoreboard’ in which it undertook an evaluation of the efficiency of the functioning of the justice systems in the Member States. While the scope of future scoreboards is likely to be widened to other fields of the justice systems such as criminal law, the first two issues were clearly situated in the context of the ‘European Semester’, a tool of the economic and fiscal policy co-ordination aiming at strengthening the economic and monetary union. Their focus being on improving the competitiveness of European enterprises through reducing transaction costs and risks for economic losses due to legal uncertainties, the first two scoreboards mainly dealt with the civil and commercial tribunals of the Member States. Suffice it to mention for the purposes of this presentation here that this very focus, but also the methodology used by the Commission to establish these scoreboards, was not fully immune to criticism by the Member States. As a follow-up to the initiative of the ‘Four Member States’ described under part C above and the discussions in the General Affairs Council, on 19 March 2014 the Commission also published a further communication called ‘A New EU Framework to Strengthen the Rule of Law’, which was presented to the media as well as to the Council and the European Parliament.28 This is a programmatic document,29 which neither entails the adoption of a legally binding act of secondary law by the Commission itself nor a proposal to this effect to be adopted by the Council, since the Commission simply establishes therein an informal pre-Article 7 TEU-procedure of its own. Based on the lessons learned during the last couple of years, the Commission thus describes an open, informal and mostly transparent and public dialogue to be conducted by the Commission with a Member State where a systemic threat to the rule of law and fundamental values exists, and

26 V Reding, ‘The EU and the Rule of Law—What Next?’ (2013) European Commission press release: europa.eu/rapid/press-release_SPEECH-13-677_en.htm. 27  European Commission, ‘The EU Justice Scoreboard: A Tool to Promote Effective Justice and Growth: COM(2013) 160 Final’ (2013) European Union: ec.europa.eu/justice/effective-justice/ files/justice_scoreboard_communication_en.pdf; European Commission, ‘The 2014 EU Justice Scoreboard: COM(2014) 155’ (2014) European Union: ec.europa.eu/justice/effective-justice/files/ justice_scoreboard_2014_en.pdf. 28  European Commission, ‘A new EU Framework to Strengthen the Rule of Law: COM(2014) 158/ Final/2’ (2014) European Union: ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf. 29  See also the contribution by Emmanuel Crabit in this volume.

State of Play on Global and EU Initiatives 219 which would be composed of three stages: (1) assessment and rule of law ‘­opinion’; (2) ­recommendation with time lines for implementation; and (3) follow-up and possible launching of the formal Article 7 TEU procedure if no satisfactory solution can be achieved. With regard to the European Parliament, we should highlight the report submitted by MEP Rui Tavares on the situation in Hungary and adopted by the ­Plenary on 3 July 2013.30 In this comprehensive document, of which only the key elements can be mentioned here, the European Parliament proposes, in marginal numbers 73 and onwards and under the heading called ‘Recommendations to the EU institutions on setting up a new mechanism to enforce Article 2 TEU effectively’, the creation of a ‘Copenhagen Commission’ of the EU which could take on tasks similar to those of the Venice Commission of the Council of Europe as aforementioned. Furthermore, it was proposed that a group of wise persons should be involved when a situation threatening the fundamental values of the EU in a Member State arises. The Parliament, in a certain parallelism of thinking with the Commission, also envisages an ‘Article 2 dialogue’ to be conducted with the Member State concerned whenever an ‘alarm agenda’ has been triggered. In another resolution by the European Parliament adopted on 27 February 2014,31 on the basis of a report by MEP Louis Michel concerning the annual report on human rights for 2012 submitted by the European Commission, the Parliament, under the heading of ‘institutional questions’ in marginal numbers five and onwards, furthermore speaks of a ‘Copenhagen Mechanism’. This would be based on criteria, indicators and objective data, would involve a European policy cycle on the application of Article 2 TEU, lead to the development of a set of recommendations with effective and proportionate penalties, include an early-warning system and once again the creation of a Copenhagen Commission established by inter-institutional agreement of the Parliament, the Council and the Commission. These basic elements are accompanied by concrete proposals for treaty changes. In concluding, one might characterise the current state of affairs with the affirmation that many useful initiatives have been taken throughout the last years and numerous practical suggestions have been made with a view to strengthening the

30  R Tavares, ‘Report on the Situation of Fundamental Rights: Standards and Practices in ­Hungary’ P7_TA(2013)0315 (2013) European Union: www.europarl.europa.eu/sides/getDoc.do?type= REPORT&reference=A7-2013-0229&language=EN; European Parliament, ‘European Parliament Resolution of 3 July 2013 on the Situation of Fundamental Rights: Standards and Practices in Hungary’ (2013) European Union: www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA2013-0315&language=EN&ring=A7-2013-0229. 31  European Parliament, ‘European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union’ (2012) P7_TA(2014)0173, European Union: www. europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-0173+0+DOC+ XML+V0//EN.

220  Andreas J Kumin possibilities of the European Union to safeguard the respect for the rule of law in its different dimensions by its own Member States. However, many more equally constructive ideas32 are on the table that have still been left unexplored. The challenge facing the EU and its Member States now lies in the need to draw the right political conclusions out of this wealth of material, tie the ­different threads of ­discussions and activities together and decide on a coherent and ­effective approach for the future that could muster broad support among the Member States and the EU institutions.

32  See for example also the paper by C Closa, D Kochenov and JHH Weiler, ‘Reinforcing the Rule of Law Oversight in the European Union’, EUI Working Paper RSCAS 2014/25 http://cadmus.eui.eu/ bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.pdf?sequence=3, as well as the contribution by Closa and Kochenov in this volume (ch 10), or Democracy Reporting International, ‘Towards a New Deal for Democracy in Europe: Making the EU’s Role in Protecting Fundamental Values Effective’ (2014) Briefing Paper 49: www.democracy-reporting.org/files/bp_49_16_june_1.pdf.

13 Managing the Rule of Law in a Heterogeneous Context: A Fundamental Rights Perspective on Ways Forward* GABRIEL N TOGGENBURG AND JONAS GRIMHEDEN**

I.  HOW MUCH HETEROGENEITY CAN EUROPEAN UNITY AFFORD? THE ARGUMENT FOR MINIMUM CONSTITUTIONAL COHESION

T

HE SEMI-CONSTITUTIONAL NATURE of the European Union (EU) is reflected, for instance, in the EU’s mandate to sanction those Member States that threaten an assumed EU-wide ‘constitutional h ­ omogeneity’1 expressed in the shared values listed in Article 2 Treaty on European Union (TEU). A ‘clear risk of a serious breach’ (Article 7 (1), emphasis added) of these values can be addressed by the EU under the Article 7 (1) TEU procedure. In more troublesome cases, ‘the existence of a serious and persistent breach’ (Article 7 (2) emphasis added) by a Member State can officially be determined and commented upon by the EU in the Article 7 (2) procedure. The EU can even proceed by imposing political sanctions against the respective Member State via the procedure in ­Article 7 (3) TEU. These three steps represent a spectrum of increasingly severe political replies provided for in the treaties. The Article 7 procedures are reactive rather than preventive in nature and have so far not gained much practical relevance and attracted some criticism. Firstly, the substantial thresholds in Article 7 are very high (only persistent and systemic threats to the shared values are addressed). Secondly, the procedural hurdles are equally high as the different stages of the Article 7 procedure can only be activated by the political actors and need a qualified majority in the Council (or, for the procedure declaring the existence of a serious and persistent breach of

*  This contribution builds on a chapter published in D Kochenov and C Closa (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge, Cambridge University Press, 2015). **  This article is written in a private capacity, views are strictly personal and cannot be attributed to the FRA. 1  F Schorkopf, Homogenitaet in der Europaeischen Union—Ausgestaltung und Gewaehrleistung durch Art 6 Abs, 1 und Art 7 EUV (Berlin, Duncker & Humblot, 2000).

222  Gabriel N Toggenburg and Jonas Grimheden c­ onstitutional values: unanimity in the European Council). Thirdly, the procedure only partly falls within the jurisdiction of the Court of Justice of the European Union, thereby further underlining the impression that addressing value violations is a matter of politics rather than constitutional consideration and expert assessment.2 A variety of considerations will motivate the decision whether or not Article 7 is activated. Admittedly, given the current nature of the procedure, power relations and party politics might play a role. Nevertheless, the question of departure is the following: is the Member State at stake perceived by its peers as clearly deviating from the shared values in a manner that seriously threatens the consensus of ‘who we are’ in the EU community of States? Similar processes can take place at the national level. In Italy and Austria a telling term was coined in this regard: The ‘arco costituzionale’ or the ‘Verfassungsbogen’ draws a dividing line between what a constitution accepts and what is beyond the constitutionally accepted.3 For the EU we can say that the contours of this ‘constitutional bow’ are less than crystal-clear, typically even more blurred than at national level.4 This is despite the fact that the drafters of the EU Treaty, when formulating Article 2 TEU, wanted to select: [A] hard core of values meeting two criteria at once: on the one hand, they must be so fundamental that they lie at the very heart of a peaceful society practicing tolerance, justice and solidarity; on the other hand, they must have a clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction.5

Considering these two criteria, it appears debatable whether Article 2 as such clearly signals what sort of behaviour can be sanctioned under Article 7 TEU and what cannot. This is even more so given that the centripetal provision of Article 2 (the shared values) is counterbalanced by more centrifugal provisions like the one in Article 4 (2) TEU underlining that the EU has to respect the ‘national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. In light of these forces striving towards unity at the same time as allowing for a wide degree of diversity, key questions must be asked—and attempts be made to respond to these. To what degree can national autonomy be invoked to justify a deviant non-mainstream reading of the assumedly shared ­values in Article 2 TEU? How much diversity can European unity afford? 2 

Art 269 TFEU. Toggenburg, ‘Was soll die EU können dürfen um die EU- Verfassungswerte und die Rechtsstaatlichkeit der Mitgliedstaaten zu schützen? Ausblick auf eine neue Europäische Rechtsstaatshygiene’ in Policy Brief der Österreichischen Gesellschaft für Europapolitik (2013/13) www.oegfe.at/cms/ uploads/media/OEGfE_Policy_Brief-2013.10.pdf. 4  For a variety of different perspectives see eg D Kochenov, G De Burca and AT Williams (eds), ‘Europe’s Justice Deficit’ (26 March 2015). 5  See Annex 2 of CONV 528/03 as of 6 February 2003, 11. 3 GN

Rule of Law: A Fundamental Rights Perspective 223

Figure 1: Inter-linkages Between the Sets of Standards in the European Union Source: Based on European Union Agency for Fundamental Rights, ‘Fundamental rights: challenges and achievements in 2011—Annual report 2011’ (2012), p 18. Note: ECHR—European convention on human rights; CRPD—UN Convention on the rights of persons with disabilities.

It is well recognised that the EU provides a very unique and dense form of integration which brings together national constitutional systems in a shared constitutional space (see Figure 1 for an overview of inter-linkages between the sets of relevant standards). Terms like the ‘integrated state’6 or ‘Verfassungsverbund’7 became natural parts of the academic discourse on the European Union. Under the principle of loyalty the Member States stand under an obligation to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’.8 Amongst the objectives of the Union is the aim to promote all the values as listed in Article 2 TEU and to promote the ‘well-being of its people’.9 Moreover, the Union ‘shall offer its citizens an area of freedom, security and justice without internal frontiers’10 and shall ‘combat social exclusion and discrimination, and … promote social justice and protection, … economic, social and territorial cohesion, and solidarity among Member States’.11

6 

M Nettesheim and P Schiera, Der integrierte Staat (Berlin, Duncker & Humblot, 1999). Pernice, ‘Theorie und Praxis des Europäischen Verfassungsverbundes’ in C Calliess (ed), ­Verfassungswandel im europäischen Staaten- und Verfassungsverbund (Tübingen, Mohr Siebeck, 2007) 61; I Pernice, ‘La Rete Europea di Costituzionalità—Der Europäische Verfassungsverbund und die ­Netzwerktheorie, Zeitschrift fuer auslaendisches und öffentliches Recht und Völkerrecht’ (2010) 70 ZaöRV 51. 8  Art 4 (3) TEU. 9  Art 3 (1) TEU. 10  Art 3 (2) TEU. 11  Art 3 (3) TEU. 7 I

224  Gabriel N Toggenburg and Jonas Grimheden Through both political and legal mechanisms, the Member States are tied together in a way that major changes to the political system in one Member State can easily have spill-over effects into other States and the working of the EU as a whole. Consider, for instance, the impact a Member State’s government and its members in the European Parliament can have on the policy-making of the EU which again affects the other Member States. Or think of the obligation to mutually recognise across borders judgments in criminal matters or judicial and extrajudicial decisions in civil matters. In fact, Member States’ mutual cooperation and the overall functioning of the EU is built on the assumption that all M ­ ember States remain within the ‘constitutional bow’ as drawn by Article 2 TEU.12 Where Article 2 values are compromised in a way that threatens the functioning of the EU there is no way that this could be justified by making recourse to the ‘national identity’ the European Union has to respect. Firstly, ‘national identities’, as set out in Article 4 (2) TEU, is a term of EU law that cannot be interpreted by the respective Member States alone.13 Secondly, the identity of an ‘integrated state’ is ­co-defined by its very membership in the EU. There is hence no need to change the treaties by adding ‘a new clause to oblige the member states to respect the constitutional identity of the European Union, not least in terms of its values and ­principles’.14 The challenge is rather to operationalise Articles 2 (shared values), 3 (EU objectives), 4 (cooperation between EU and Member States), 5 (exercise of EU competencies), 6 (fundamental rights obligations) and 7 (sanctions for scenarios of value violations) TEU in a way that takes the shared values seriously without overstretching the EU’s role and competencies. This is possible, as this chapter argues, if the value debate within the EU takes fundamental rights as its starting point (part 2), builds on objective and ‘threedimensional’ rights-based indicators (part 3), includes the EU’s own performance in the equation and instils a culture of peer review and exchange of promising practices (part 4), avoids a top-heavy approach by putting the situation on the ground at its centre (part 5), instils a permanent and preventive fundamental rights culture through a strategic framework (part 6) that, finally, assigns tasks and responsibilities in a way that combines intergovernmental and supranational elements (part 7).

12  For instance, protocol 24 on asylum from nationals of Member States of the EU states: ‘Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.’ According to the protocol, applications for asylum made by a national of a Member State may be taken into consideration when that very State is subject to an Art 7 TEU procedure. 13  A von Bogdandy and S Schill, ‘Die Achtung der nationalen Identität unter dem reformierten ­Unionsvertrag’ (2010) 70(4) Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht 701–34, esp 713–15. 14 What a prominent former member of the European Parliament, A Duff, would like to call the ‘Viktor Orban clause’. See A Duff, EU in Deep Trouble with Top Court (Euractiv, January 2015) www.euractiv.com/sections/justice-home-affairs/eu-deep-trouble-top-court-311090.

Rule of Law: A Fundamental Rights Perspective 225 II.  HOW TO LOOK AT THE RULE OF LAW DEBATE? THE ARGUMENT FOR A FUNDAMENTAL RIGHTS PERSPECTIVE

Assuming that the ‘rule of law debate’ is in essence about finding ways that best protect the values that are, according to Article 2 EU Treaty, shared between the EU and its Member States, there is something strange with the heading ‘rule of law debate’ as the rule of law is only one out of six15 elements mentioned in Article 2 TEU. This provision lists the values that on the one hand are the value-foundation of the Union (‘founded on’) and on the other hand build the shared core of values offered by the national constitutional systems (‘common to the Member States’). These values therefore form the normative backbone linking the national level with the EU level and provide guidance in both directions. That only one, admittedly horizontal value, namely the rule of law, was singled out in most of the political debate can be explained by the specific nature of the ‘Hungarian crisis’ sparking the rule of law debate which indeed circulated around prominent rule of law elements such as the role of the judiciary and of constitutional legislation. But also besides the name, the ensuing political debate was not always a fortunate one. On the one hand the debate became in some corners politicised (the more aggressive reaction), and, on the other hand (the more defensive reaction), ignored the fact that a solid debate on systemic deficiencies cannot stare at single legalistic elements in isolation but has to look at the ‘combined effects of many developments’. Against a specific political background various legal developments can lead to a situation where ‘the whole is greater than the sum of its parts’. For instance, it would not be sufficient to look in isolation at the appointment of judges. Other developments such as the introduction of new majorities to elect public officials, or new standard terms of public officials, or new electoral laws should be included in the assessment.16 In this sense it is positive to note that there are at least three ways in which the debate has developed for the better.17 It has moved from a country-specific Article 7 emergency context to a shared concern of how to better uphold values in all EU Member States.18 Secondly, it moved from a reactive approach of containment to exploring ways that the EU itself can proactively promote its values.19 15 

Or, depending on how one counts, 13 elements. Kjaerum, Director of the FRA, speech given in the European Parliament on the situation in Hungary, 9 February 2012, online at fra.europa.eu/sites/default/files/fra_uploads/1945-MK-speechhearing-on-Hungary_09-02-12.Brussels.pdf 17  For the development of the political positions see for instance the selection of documents given in Democracy Reporting International (2013), Proposals for new tools to protect EU values: an overview, Briefing paper 43, online at democracy-reporting.org/publications/thematic-papers/briefing-paper43-november-2013.html. For the academic discussion see amongst many, A von Bogdandy and M Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What has been Done, What can be Done’ (2014) 51(1) CML Rev 59–96. 18  See eg European Commission (2014), ‘A new framework to strengthen the Rule of Law’ COM (2014) 158 final as of 19.3.2014. 19 See eg the Conclusions of the Council of the European Union and the Member States ­meeting within the Council on ensuring respect for the rule of law, 16 December 2014, available at 16  M

226  Gabriel N Toggenburg and Jonas Grimheden Thirdly, the debate moved from focusing on the rule of law to a much wider ­reading of the shared values which more squarely reflect Article 2 TEU and the Charter of Fundamental Rights of the European Union.20 In fact, a closer look reveals that most of the Article 2 values are covered by the Charter and indeed are reflected there in a more detailed and rights-based language as Figure 2 shows. Values as listed in Article 2 TEU

Equivalence in the Charter (shaded Charter titles cover the corresponding Article2 values only partly)

Human dignity

Human dignity (Title I)

Freedom

Freedoms (Title II)

Democracy

Citizens’ rights (Title V)

Equality

Equality (Title III)

The rule of law

Justice (Title VI); Citizens’ rights (Title V)

Respect for human rights

All titles of the Charter

Rights of persons belonging to minorities

Equality (Title III)

Pluralism

Equality (Title III)

Non-discrimination

Equality (Title III)

Tolerance

Equality (Title III)

Justice

Justice (Title VI)

Solidarity

Solidarity (Title IV)

Equality between women and men

Equality (Title III)

Figure 2: Comparison Between Article 2 TEU Values and the Charter of Fundamental Rights of the European Union Source: European Union Agency for Fundamental Rights, ‘Fundamental rights: challenges and achievements in 2013—Annual report 2013’ (2014), p 10. www.consilium.europa.eu/en/meetings/gac/2014/12/16/. They aim at promoting rule of law via an ‘evidence-based’ approach also through the means of an annual ‘dialogue’ in the Council. 20  See eg the European Union Agency for Fundamental Rights, ‘Fundamental rights: ­ challenges and achievements in 2013—Annual report 2013’ (2014) 7–20, available at fra.europa.eu/en/ publication/2014/fundamental-rights-challenges-and-achievements-2013-annual-report-2013.

Rule of Law: A Fundamental Rights Perspective 227 Values like dignity, equality between women and men, freedom and non-­ discrimination are simply more specific expressions of the value ‘respect for human rights’. Two other values, namely ‘the rule of law’ and ‘democracy’ appear—next to the ‘respect for human rights’—equally able to encompass other Article 2 values like ‘justice’, ‘equality’, ‘pluralism’ and ‘tolerance’. It has been argued that the relationship between the three elements of the rule of law, fundamental rights and democracy is co-constitutive and that like the legs of a three legged-stool, ‘if one is missing the whole is not fit for purpose’.21 This being correct, one can still argue that fundamental rights cover the spectrum of Article 2 to a wider degree compared to democracy and the rule of law. Moreover, the EU has a detailed Charter of Fundamental Rights of the European Union, drafted 15 years ago in a transparent manner by government officials and (mainly) national and European Parliamentarians partly based on civil society input. Such a comprehensive written catalogue of the elements that form the EU acquis in the area of individual rights is missing for the rule of law and for democracy. Arguably, the EU’s normative expectation under Article 2 TEU is more legitimate and can be followed-up in a more efficient manner if exercised through the lens and in the language of fundamental rights. A systematic engagement with— such as monitoring of—fundamental rights, implementing a shared fundamental rights culture and developing an inter-institutional framework for the protection and promotion of fundamental rights would cover most of Article 2. As even a very ‘thin’ notion of the rule of law covers certain (especially judicial) ­fundamental rights,22 taking fundamental rights as the starting point means also to directly address elements of the rule of law. Moreover, indirectly, the protection and promotion of fundamental rights helps to prevent systemic rule of law crises. In fact, a trustworthy system protecting the fundamental rights of its residents and citizens can be considered one of those ‘societal conditions’23 that are necessary for a country to function as a state governed by the rule of law.

III.  HOW TO ENSURE A RIGHTS-BASED PERFORMANCE? THE ARGUMENT FOR FUNDAMENTAL RIGHTS INDICATORS

What can such a systematic engagement achieve? Multinational companies know how to focus on essential figures. Many have branches in several parts of the 21  S Carrera, E Guild and N Hernanz, CEPS paper, ‘The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism’ (2013), available at www.ceps.eu/publications/triangular-relationship-between-fundamental-rightsdemocracy-and-rule-law-eu-towards-eu. 22  See eg L Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ Jean Monnet Working Paper 04/09, 27, online at: www.jeanmonnetprogram.org/papers/09/090401.html. 23  Advisory Council on International Affairs, ‘The Rule of Law: Safeguard for European Citizens and Foundation for European Cooperation’ (2014) available online at aiv-advies.nl/6d4/­publications/ advisory-reports/the-rule-of-law-safeguard-for-european-citizens-and-foundation-for-europeancooperation.

228  Gabriel N Toggenburg and Jonas Grimheden world, operations in even more, with different types of activities, expenditures and income they manage to focus on what sometimes are referred to as Key Performance Indicators (KPIs). Similarly, international organisations use indicators to measure progress, for instance the Sustainable Development Goals,24 and states apply indicators, for example as part of their national human rights action plans to bring focus and to enable an assessment of progress.25 Also the EU is using indicators in a number of settings, such as looking at Member States’ progress in the Single Market Scoreboard or the EU Justice Scoreboard.26 These distilled overviews of the actual situation help the EU to bring focus to aspects deemed important, just like, for instance, multinationals using KPIs. The European Union Agency for Fundamental Rights (FRA), for instance, has developed indicators in a number of areas, such as rights of the child and rights of persons with disabilities.27 On rights of Roma, on the request of the European Commission, the FRA is developing and populating indicators together with Member States, feeding into EU policy and follow-up.28 In order to capture various aspects of an actual situation using indicators, different models or frameworks are available. The one used by the United Nations Office of the High Commissioner for Human Rights, and also by the FRA, seek to capture three modes: commitment, effort and results (see Figure 3).29 This ­corresponds in the framework to the three categories of structural, process and outcome indicators. What exactly goes into each of these is less relevant, but what matters is that not only the situation on paper is taken into account, but also the situation on the ground, irrespective of attempts made by a government—­ something that tries to capture the spectrum between the extremes of legislation in place and actual enjoyment of rights. Indicators in such a framework can

24  Sustainable Development Goals: www.un.org/sustainabledevelopment/sustainable-developmentgoals/. 25  See eg Finland, Ministry of Justice, ‘National action plan on fundamental and human rights 2012–2013’ (2012) 16 ff, available at oikeusministerio.fi/en/index/currentissues/tiedotteet/2012/05/ perus-jaihmisoikeustoimintaohj.html. 26 See respectively: ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/ infringements/index_en.htm. European Commission, ‘A new EU framework to strengthen the rule of law’ COM(2014) 158 final, 11 March 2014: ec.europa.eu/justice/effective-justice/files/com_2014_158_ en.pdf. For an overview of initiatives in the EU, see FRAME (FP7 project), B ­ aseline Study on Human Rights Indicators in the Context of the European Union, Work ­Package No 13—Deliverable No 1, 24 December 2014, available at www.fp7-frame.eu/wp-content/materiale/reports/12-Deliverable-13.1.pdf. 27 European Union Agency for Fundamental Rights, ‘Developing indicators for the protection, respect and promotion of the rights of the child in the European Union’ (available at fra.europa. eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-­ european-union) and European Union Agency for Fundamental Rights, ‘The right to political participation for persons with disabilities: human rights indicators’ 2–14 (available at fra.europa.eu/en/ publication/2014/right-political-participation-persons-disabilities-human-rights-indicators). 28  European Union Agency for Fundamental Rights, ‘Multi-Annual Roma Programme’ fra.europa. eu/en/project/2013/multi-annual-roma-programme/member-states. 29  Office of the High Commissioner for Human Rights, ‘Human Rights Indicators: A Guide to Measurement and Implementation’, 16: www.ohchr.org/Documents/Publications/Human_rights_ indicators_en.pdf.

Rule of Law: A Fundamental Rights Perspective 229 therefore also capture where a problem may lie and what needs to be done, by making it clearer, for instance, what policy measures at the process-level appear to lead to better outcomes. There are thus both preventive and reparative advantages with this approach.

Figure 3:  The ‘Structural—Process—Outcome’ Indicator Framework Source: European Union Agency for Fundamental Rights, ‘Fundamental rights: challenges and achievements in 2014—Annual report 2014’ (2015), based on OHCHR (2012), ‘Human Rights Indicators—a guide to measurement and implementation’ available at: www.ohchr.org/EN/Issues/ Indicators/Pages/documents.aspx.

In order for indicators to be as pertinent and credible as possible, they should be identified through broad consultations with experts, government and civil society representatives. When indicators have been agreed on they need to be given life—data and information is needed to populate them and there may be a need to set standards or benchmarks for what should be seen as ‘compliant’. Much data and information exists from international monitoring bodies but this tends to focus on the structural and process levels. Statistics showing actual enjoyment— outcome level—are harder to come by but surveys do exist which provide a comparative perspective across countries.30 With indicators in place that capture the right aspects, and with agreement on data and information to populate the indicators, an organisation is well equipped to analyse the situation, assess what seems to work and what does not, strategise and take informed decisions and steps. It is, however, important to recall that ­indicators indicate, so the results must always be viewed with a sufficient extent of context which may or may not justify deviances, say, from a pattern across states. Indicators on fundamental rights in the EU, as elsewhere, bring clarity

30  See for instance, FRA surveys: Jewish people’s experiences and perceptions of discrimination and hate crime in European Union Member States; EU LGBT survey; Survey on gender-based ­violence against women; Roma pilot survey; Racism and social marginalisation survey; EU-MIDIS: E ­ uropean Union Minorities and Discrimination Survey; all available at fra.europa.eu/en/research/surveys.

230  Gabriel N Toggenburg and Jonas Grimheden to discussions and action—and would ensure that debates on the core values of the EU are based on objective and pre-determined criteria, that capture intent, efforts and the situation on the ground.

IV.  HOW TO MOVE BEYOND SANCTIONS: THE ARGUMENT FOR LEADING BY EXAMPLE AND LEARNING FROM PEERS

Indicators, as well as other forms of monitoring and review tend to be seen as serving ‘finger-pointing’ and maybe even sanctioning as a consequence of shortcomings. A system can certainly be designed and conceived in such a way but it must not be. A ‘sunshine policy’ that engages and involves rather than paralyses and excludes is often more effective. For this reason, what would be important for the credibility of the EU, is to include in any assessment of the values of the EU, not only the Member States but also the EU itself. Looking at the value commitment of the Member States in combination with that of the EU would underscore that the Article 2 values are shared between the two layers of governance. Since all the Article 2 values are of a horizontal nature, they should reasonably be mainstreamed across all activities of the EU. Thus, fundamental rights are at the core of an integrated Europe. In its 2013 Annual Report, the FRA stressed that ‘fundamental rights should not be reduced to a function of imposing limits on legislation and public administration’ but have an enabling character that ‘can point towards the design, adoption and implementation of certain initiatives’.31 In some areas the treaties make this explicitly obligatory such as in the case of equality between men and women, as well as when combatting discrimination based on, for instance, ethnic origin or disability.32 The same is true for an issue such as data protection.33 Mainstreaming these horizontal fundamental rights obligations would seem to deserve full integration into key policy cycles. Restricting fundamental rights to non-discrimination policies, for instance, would not unlock the full c­ apacity of fundamental rights, and would indeed not fully respect the obligations of the EU and its Member States under the treaties. Fundamental rights should thus be included in key policy cycles, such as the European Semester.34 Efforts to ­establish a link between the European Semester and social investment as well as ­fundamental rights intensified in 2012–2013. The European Commission repeated calls to respect the Charter of Fundamental Rights35 and the European Parliament argued for an improved assessment of the fundamental rights impact of fiscal and 31 

European Union Agency for Fundamental Rights (n 20) 12. Arts 8 and 10 TFEU. Art 16 TFEU. 34 See eg European Union Agency for Fundamental Rights, ‘Fundamental rights: challenges and achievements in 2014—Annual report 2014’, available at fra.europa.eu/en/publication/2015/ fundamental-rights-challenges-and-achievements-2014. 35  European Commission, COM(2013) 83 final as of 20.2.2013, ‘Towards Social Investment for Growth and Cohesion—including implementing the European Social Fund 2014–2020’ 2, available at ec.europa.eu/social/BlobServlet?docId=9761&langId=en. 32  33 

Rule of Law: A Fundamental Rights Perspective 231 structural reforms.36 In its Resolution of 22 October 2014, it welcomes the revised employment and social scoreboard37 and calls for the inclusion of additional indicators—such as quality of work, child poverty levels, access to healthcare, and homelessness—in the scoreboard. The Resolution then asks that these indicators have a real influence on the European Semester process given that ‘economic and social aspects of the EU are two sides of the same coin, both of which play a key role in the EU’s development.’ Such a revamped fundamental rights orientation of EU policies is likely to have effects on the EU Member States’ realities on the ground. For instance, to make the use of EU funds (such as Structural and Investment Funds) dependent on fundamental rights (so called ex ante conditionalities) is another example of how mainstreaming fundamental rights can trickle down and make sure that Member States, when implementing the relevant EU regulations, stick to the Charter of Fundamental Rights.38 The introduction of this new fundamental-rights oriented spending policy was considered by some not just desirable but under the current legal requirements mandatory.39 A Union leading by example will be a good starting point. But to ensure that the EU Community of values does not only rely on European oversight but strongly builds on a shared ownership by and mutual trust amongst its Member States, it would be important to enhance the transnational exchange of experiences, views and promising practices with regard to the protection and promotion of the ­Article 2 values. Such an exchange could be organised in a variety of contexts and formats. It could encompass government bodies as well as judicial organs. For instance, the Association of the Council of State and Supreme Administrative Jurisdictions of the European Union (ACA Europe) could further enhance their cooperation to deal more systematically with the questions as to how Article 2 values are upheld in the different national systems. The same could be said for specialised bodies such as Data Protection Authorities. Working Parties bringing together the relevant administrations are another avenue to pool knowledge and expertise from different Member States. For instance, the FRA has set up two Working Parties with Member States on hate crime and on Roma integration. 36 European Parliament resolution of 22 October 2014 on the European Semester for e­conomic policy coordination: implementation of 2014 priorities (2014/2059(INI)), available at www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2014-0038&language=EN&ri ng=A8-2014-0019. 37  The second edition of the scoreboard of key employment and social indicators was introduced to strengthen the social dimension of the Economic and Monetary Union by gaining a better understanding of the labour market and social developments at risk. The indicators are presented in the Commission’s Communication of 2 October 2013 on Strengthening the Social Dimension of the Economic and Monetary Union, available at ec.europa.eu/commission_2010-2014/president/news/ archives/2013/10/pdf/20131002_1-emu_en.pdf. 38  See details available at ec.europa.eu/regional_policy/index.cfm/en/funding/. 39  See eg for the argument of the CRPD that was ratified by the EU: G Quinn, ‘Getting a Life Living Independently and Being Included in the Community’ A Legal Study of the Current Use and Future Potential of the EU Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, April 2012, available at www.nuigalway.ie/cdlp/projects/eu_structural_funds.html.

232  Gabriel N Toggenburg and Jonas Grimheden This bears fruits. For example, the Hate Crime Working Party is developing a simple reporting tool for victims to report incidents of hate crime. Not addressing hate crime is a factor in the radicalisation that we see in Europe today. A variety of practical tools could be (further) developed. For instance, the European e-justice portal could become a suitable access point for promising practices on how best to live up to EU standards of justice. It could, for instance, offer a search function for vetted practices. The FRA initiated a modest attempt in this regard with an online toolkit for public officials, which includes examples under various headings of how to better join up fundamental rights.40 The identification of such practical tools is again to be based on an open exchange of experiences. To give an example from the area of home affairs: Member States’ experts and the European Commission in collaboration with the FRA developed concrete practical guidance on apprehension practices in the form of ‘dos and don’ts’ for immigration law enforcement officials.41 Cooperation could not only be revamped at technical but also at the political level. Here channels could be established through intergovernmental formats and platforms but also through supranational formations like for instance the Council Working Party FREMP (on fundamental rights, citizens’ rights and free movement of persons within the EU). Ideally, these different exchange platforms would inform the discussion in the Council of the European Union which so far did not dedicate specific meetings to the protection and promotion of the Article 2 values. On 16 December 2014 the Council agreed upon the establishment of ‘a dialogue among all Member States within the Council to promote and safeguard the rule of law in the framework of the Treaties’. This new feature complements the Article 7 procedures as well as the infringement procedures the EU already has available. The Council underlines that the dialogue will be based on the principles of objectivity and equality and that it will be ‘conducted on a non-partisan and evidencebased approach’. It will respect national identities and should be ‘brought forward in light of the principle of sincere cooperation’. Finally, the Council stresses that this process should avoid duplication and take ‘into account existing instruments and expertise in this area’. The Presidency of the EU is tasked to ensure that all these principles are respected. The dialogue will take place once a year in the Council’s General Affairs configuration, and be prepared by the COREPER (Presidency), ‘following an inclusive approach’. The Council also stated that it might, in case of need, also ‘launch debates on thematic subject matters’.42 The dialogue could be conceived as a self-standing event, but could also effectively be linked to

40  European Union Agency for Fundamental Rights, ‘Making rights real—A guide for local and regional authorities’ (2014) available at fra.europa.eu/en/joinedup/home. See examples at, for instance: fra.europa.eu/en/joinedup/tools/communicating-fundamental-rights/engaging-public/champions. 41  European Union Agency for Fundamental Rights, ‘Twelve operational fundamental rights considerations for law enforcement when processing passenger name record (PNR) data’ (2014) available at fra.europa.eu/sites/default/files/fra-2014-fundamental-rights-considerations-pnr-data-en.pdf. 42  See Council of the European Union, ‘Conclusions of the Council of the European Union and the member states meeting within the Council on ensuring respect for the rule of law’ (n 19). The Council will ‘evaluate, by the end of 2016, the experience acquired on the basis of this dialogue’.

Rule of Law: A Fundamental Rights Perspective 233 the subsequent year’s dialogue, where promising practices and topics could be further explored, possibly even on the basis of further experience during the year. In this way, the annual dialogues could serve to politically steer progress in this area. In order to be based on evidence, and given the necessary political will, the debate could also be underpinned with expert input from outside the Council, including for instance an annual synthesis report based on the ‘Union core’ of data, information and analysis available from all different actors in the relevant fields.

V.  HOW TO MAKE FUNDAMENTAL RIGHTS A ‘JOINED-UP’ MISSION? THE ARGUMENT FOR A BOTTOM-UP APPROACH

Acting on Article 7 TEU may lead to sanctions such as the withdrawal of voting rights for a Member State. Such a measure risks aggravating the situation by increasing exclusion from ‘the core’ of States.43 Article 7 can then lead to alienating also the population of the Member State being targeted (a phenomenon that could already be observed back in 2000 during the so called ‘Austrian crisis’).44 As argued above, a Member State spiralling away from the values of the EU should be swayed to return to the fold by the power of attraction and peer pressure. To prevent such spiralling, the values must also be well-grounded in society—in the full range of actors from regional and local government to civil society organisations. Ideally, any Article 7 involvement of the EU should build on evidence collected at national level and open up channels of communication with relevant civil society organisations in the country concerned. For instance, the European Parliament could reflect the European Commission’s rule of law framework by adopting procedures that mirror the different procedural steps in the Commission’s new rule of law framework. So in the scenario that the European Commission is launching a ‘Commission assessment’ (the first step of the new framework), the European Parliament could invite key civil society organisations across the full spectrum of civil society for a hearing in the Committee on Civil Liberties, Justice and Home Affairs (LIBE). If the Commission enters the second step of its procedure (Commission’s recommendation), the Parliament’s rules could allow for a Parliamentary fact finding mission to the country concerned and, based on that visit, a Parliamentary draft report to be discussed in the Parliament. This would help to prevent alienation of the population of Member States spiralling away from the EU values. ­Article 7 sanctions as foreseen lack ‘local ownership’ (they are imposed by European institutions) and also for this reason, special emphasis on involvement of civil society would be called for. But maybe more important is that the EU and its Member States take the local level into account also outside such Article 7 scenarios. Fundamental rights, as 43  See eg GN Toggenburg, ‘La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni’ II/2001 Diritto pubblico comparato ed europeo 735–56. 44  Compare M Dani, ‘Opening the Enforcement of EU Fundamental Values to European Citizens’ (2013) Verfasssungsblog, available at www.verfassungsblog.de/de/ungarn-was-tun-marco-dani/#. UX5EXEa2iM8.

234  Gabriel N Toggenburg and Jonas Grimheden with obligations under international human rights law are mainly for the central government of a state to ensure. But the practical and every day responsibility of government and thus also for fundamental rights lies rather with regional and local level governments.45 This need for a vertical ‘joined-up’ approach should also be coupled with a horizontal approach, which involves not only the governmental institutions at the various levels in the work on fundamental rights. Rather, for example, civil society organisations and bodies with a human rights remit active at the various levels should be engaged and fully join-up. Cooperation between government institutions and civil society organisations (CSOs) but also cooperation amongst CSOs could be enhanced by establishing fundamental rights platforms in line with the experience collected at EU level with the FRA’s Fundamental Rights Platform (bringing together around 400 relevant organisations).46 To put emphasis on the developments at national and local level and making sure that these are linked with EU level developments would do justice to the fact that ‘normative prescription’47 is not unidirectional in the EU system since the EU values (especially those reflected in the general principles of law) strongly build on the constitutional traditions of the Member States (see Figure 1). In fact, a serious debate on the level of commitments and efforts undertaken as well as the results realised with regard to the Article 2 values also requires taking into account the regional and local levels of governance as these are the layers of governance that most directly impact on the lives of the people. Moreover, it is exactly the facts and experiences characterising the local level which should inform any policy making at national and EU levels. The challenge lies in making sure that there is sufficient communication, coordination and cooperation between the different actors placed at different layers of governance. Against this background it is worthwhile exploring how best to establish an overall strategic framework for the protection and promotion of the Article 2 values within the EU.

VI.  HOW TO MOVE THE VALUE DEBATE FROM EXTREME SCENARIOS TO DAY TO DAY BUSINESS? THE ARGUMENT FOR A STRATEGIC FRAMEWORK

Since Article 7 TEU addresses rather extreme situations and given that the Article 7 procedures are initiated and implemented by political actors, the ­ensuing debates can be expected to be political in nature and not necessarily in all aspects strictly objective and rational. Politicised (in terms of party-politics

45  For a discussion on this, see A Accardo, J Grimheden and K Starl, ‘The Case for Human Rights at the Local Level: More Than an Obligation?’ in W Benedek, F Benoît-Rohmer, MC Kettemann, B Kneihs, M Nowak (eds), European Yearbook on Human Rights 2012 (Vienna, NWV, 2012). 46  See M Kjaerum and GN Toggenburg, ‘The Fundamental Rights Agency and Civil Society: Reminding the Gardeners of their Plants’ Roots’ in European Diversity and Autonomy Papers—EDAP 2012/2: www.eurac.edu/en/research/institutes/imr/activities/Bookseries/edap/Documents/2012_edap02.pdf. 47  See for instance R Toniatto who speaks of ‘una sorta di inversione di direzione della prescrittività’ (a sort of inversed direction of prescription). R Toniatti, ‘La carta e i “valori superiori” dell’ordinamento comunitario’ in R Toniatti (ed), Diritto, diritti, giurisdizione (Cedam, Padova, 2002) 7–29, 23.

Rule of Law: A Fundamental Rights Perspective 235 or other partisan motivations) debates risk focusing on identifying the ‘perpetrator’, rather than on remedying the situation that is perceived as problematic. Moreover, ad hoc debates on a single Member State accused of violating Article 2 are reactive and will risk provoking defensive reactions by the State concerned. To the contrary, regular discussions of problematic phenomena arising over the year in different EU Member States would allow for preserving a ‘group-spirit’, and could instil mutual learning. Such a pre-emptive approach would also be beneficial in terms of preserving and further developing mutual trust amongst the Member States. A regular exchange on how to best promote the shared values within the EU would function best if organised in a framework that allows the identification of EU-wide priorities, to pursue coherent objectives and to increase efficient mainstreaming and coordination. Connecting all of the dots, including the mainstreaming efforts in the EU institutions (part 4) or the different efforts by national human rights bodies and civil society organisations (part 5) would create a framework that provides a shared underlying structure so that the different existing elements can be brought together in a more synergetic and strategic way. Such a ‘strategic framework’ would not necessarily have to take the shape of an explicit EU policy document. It could take an incremental approach building up momentum through transnational cooperation and development of concrete steps over time. It could combine more formal EU elements with developing forms of transnational cooperation as well as fresh momentum for exploring new avenues at national level (part 7). More formal EU level elements could include the annual dialogue that is supposed to take place in the Council or the Justice scoreboard by the European Commission, as well as the annual hearing in the European Parliament which takes place before adopting the EP report on the situation of fundamental rights within the EU. Mechanisms of transnational exchange exist for instance with the different networks the FRA is bringing together, such as the network of Ombudspersons, the network of Equality Bodies and National Human Rights Institutions, the network of fundamental rights experts (FRANET), the Fundamental Rights Platform, the just established network of contact points in national Parliaments. Based on a mapping of all relevant institutions and mechanisms a strategic framework for the protection and promotion of fundamental rights could revamp existing levels of cooperation and exchange of experience and knowledge in a strategically relevant manner: relevant information shared at the right time in the proper format. Such a strategic framework would aim at two things. Firstly, it would aim to make sure that various legislative and programmatic decisions taken at EU level are based on relevant fundamental rights evidence as produced by various actors and mechanisms at EU level (horizontal coordination and mainstreaming). Secondly, it would aim at making sure that EU level developments take place in full awareness and consideration of relevant fundamental rights developments at national and local levels (vertical coordination and mainstreaming). This would also allow that experiences made with EU legislation and EU policies feed into the evaluation of existing EU mechanisms as well as into the new proposals of how the EU level can best contribute to a flowering of the Article 2 values at national

236  Gabriel N Toggenburg and Jonas Grimheden level. This ambition would be best fulfilled if the strategic framework allows for a fundamental rights policy cycle (see Figure 4) that puts the different EU level elements (like reports or events) in a chronological order so that they can build on each other and hence create synergies. The European Parliament proposed that such a policy cycle should also include a programming moment: the cycle should detail ‘on a multiannual and yearly basis the objectives to be achieved and the problems to be solved’ considering that this cycle should foresee a framework for institutions and the FRA, as well as M ­ ember States, to work together by avoiding overlaps, building on each other’s reports, taking joint measures and organising joint events with the participation of NGOs, ­citizens, national parliaments, etc.48

This, however, raises issues of legal competence and inter-institutional power ­allocation49—the elephant in the room of the rule of law debate.

Figure 4:  Schematic View of a Fundamental Rights Cycle 48  European Parliament, resolution of 12 December 2012 on the situation of fundamental rights in the European Union (2010–2011), para 20, available at www.europarl.europa.eu/sides/getDoc. do?type=TA&reference=P7-TA-2012-0500&language=EN. 49 See eg G Schusterschitz, ‘Rule of Law within the EU—The Unavoidable Question of: Who ­Controls it?’ in this volume.

Rule of Law: A Fundamental Rights Perspective 237 VII.  WHO DOES WHAT? ADDRESSING THE ‘ELEPHANT IN THE ROOM’ THROUGH A HYBRID APPROACH WITH SUPRANATIONAL AND INTERGOVERNMENTAL ELEMENTS

It was argued that there is a risk that while trying to protect democracy and the rule of law within the EU, the European Union could overstep the limits of the European political constitution and thereby in itself risk undermining democracy and the rule of law inside the EU.50 Using the EU as a unidirectional and monolithic actor might indeed encounter limitations. However, seeing the EU as an integrated forum interacting with the other layers of governance as discussed above opens still untapped potential for the EU to have an increased influence in fostering shared values as enshrined in the Charter of Fundamental Rights without the risk of tilting the ‘federal balance’. Admittedly, there were voices saying that the procedure in Article 7 TEU builds an exclusive monopoly for supervising the Article 2 performance of the EU Member States and that the EU institutions are not entitled to supplement, let alone modify the Article 7 procedures. In some corners it was argued that not even the flexibility clause in Article 352 TFEU offers a competence base to establish mechanisms to further protect the Article 2 values because the respect of the values of the EU was not one of the ‘policies defined in the Treaties’.51 Such a reading misunderstands the constitutional value commitment in Article 2 which by its very nature is not a ‘policy’. Rather the value commitment in Article 2 makes the values listed therein an integral part of all EU policies defined in the EU Treaties. Article 352 allows the EU to take action where there is a need to attain ‘within the framework of the policies defined in the Treaties’ one of the Treaty objectives. The promotion of its Article 2 values is one of the objectives of the EU.52 To deny the possibility to use Article 352 TFEU for enhancing the protection of fundamental rights with the argument that fundamental rights are not a self-standing ‘policy’ assigned by the Treaties to the EU would be far from convincing. Also at national level ‘fundamental rights’ do not constitute a legislative policy field that would be assigned to one rather than the other layer of governance. However, Article 352 TFEU remains to be of more theoretic relevance as it requires unanimity in the Council and consent by the Parliament (and Member States like the United Kingdom and Germany require special involvement of the national Parliaments). Moreover Article 352 TFEU would not allow the extension of the framework to areas where the EU holds no legislative competences whatsoever. Therefore, if a strategic framework would come along with an action plan that should also address areas not covered by EU competence, such a framework would be better agreed upon on an intergovernmental basis. An annual meeting 50  B Bugarič, ‘Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge’ LEQS Paper No 79/2014, available at www.lse.ac.uk/europeanInstitute/LEQS/LEQSPapers. aspx. 51  See text of Art 352 TFEU. 52  Art 3 (2) TEU.

238  Gabriel N Toggenburg and Jonas Grimheden outside the EU institutional framework could bring together national and European institutions and relevant actors from civil society. Such an intergovernmental approach could also help to avoid the situation whereby the momentum created in the unfolding discussion evaporates once the question arises ‘who does what?’ within the EU framework. An annual Forum could be placed outside the EU’s institutional framework and still focus on, interact with and inform the EU (see insert in Figure 4). It could agree on a few priorities for the upcoming year and assign who is best placed to focus on what. This exchange of views and the different forms of evidence presented at that forum (which could also have an electronic format so to be even more accessible) would be of obvious relevance to the EU and its policy making but form an equally relevant asset and forum for the Council of Europe and national actors. The EU institutions could in an annual53 action plan commit themselves to what they think is falling within their competences and form an efficient contribution to the shared values. These commitments would form the supranational or ‘Union-core’ part of the action plan. In addition other actors, including the Member States, networks of bodies with a human rights remit and Council of Europe bodies could commit to actions or postulations falling outside the ‘Union-core’, so outside the EU competence. This would reflect the fact that already a decade ago the Heads of States and Government agreed in Warsaw that the EU should” strive to transpose those aspects of Council of Europe Conventions within its competence into European Union Law”.54 Arguably every international human rights commitment has a ‘Union core’ wherein the EU can contribute to make the concerned rights real. Such a Union core was identified for instance with regard to the European Social ­Charter55 or the Framework Convention for the Protection of National M ­ inorities56 and it is submitted that a mapping exercise could identify a ‘Union core’ for all Council of Europe or UN human rights’ agreements. In the mentioned action plan the EU institutions could identify fields where they are politically speaking ready and legally speaking competent to commit themselves to specific action to complement and strengthen international commitments of its Member States. Still, the action plan would be an intergovernmental document agreed upon outside the EU’s institutional framework as it would also bring together actors that are not integral parts of the EU structures (such as national human rights bodies and 53  Or every two and a half years so that an action plan would be adopted at the beginning and in the middle of a legislative cycle. 54 Warsaw action plan, guideline no 5, available at www.coe.int/t/dcr/summit/20050517_ plan_action_en.asp. 55  See the action plan for the Turin process, in M Nicoletti (PACE Vice-President), ‘High-Level ­Conference on the European Social Charter. General Report’ (2014) Council of Europe, Italian ­Presidency of the EU and City of Turin, 17–18 October 2014, 49, available at www.coe.int/T/DGHL/ Monitoring/SocialCharter/TurinConference/Turin-General-Report_EN.pdf. 56  GN Toggenburg, ‘Das Recht der Europäischen Union und das Rahmenübereinkommen zum Schutz nationaler Minderheiten’ in R Hofmann et al (eds), Das Rahmenübereinkommen zum Schutz nationaler Minderheiten Handkommentar (Baden-Baden, Nomos, 2015).

Rule of Law: A Fundamental Rights Perspective 239 CSOs) and deal with issues that are beyond EU legislative competences (such as prison ­conditions or the question whether or not to establish national fundamental rights platforms and so on). It would revamp synergies between the EU and the Council of Europe and UN bodies as it would at regular intervals inform the EU institutions about human rights developments outside the EU remit and offer channels as to how the EU could actively support these bodies within the EU remit. Whereas the implementation of commitments outside the Union core would happen outside the EU institutional framework through local, regional and national institutions, commitments within the Union core would be coordinated within the EU system. The European Parliament, the Council of the European Union and the European Commission would obviously play a core role in this context. In terms of providing relevant evidence and analysis to these political processes, the FRA could prepare a synthesis report57 based on the different EU relevant findings (the ‘Union core’) presented under the different Council of Europe58 and UN59 monitoring bodies as well as the FRA’s own research and data. This would guarantee that the strategic framework makes full use ‘of existing mechanisms and … other relevant EU and international bodies’ and ensure that the framework ‘would apply in a transparent manner, on the basis of evidence objectively compiled, compared and analysed and on the basis of equality of treatment as between all Member States’.60 Proposals to create new institutions (like a Copenhagen Commission next to the Commission in Venice and the Agency in Vienna) or new monitoring mechanisms appear unnecessary. The Agency combines a flexible mandate allowing for a very wide range of activities including country reports. For instance, in the context of Article 7 the Council declared that: [N]either the Treaties nor the Regulation establishing the European Union Agency for Fundamental Rights precludes the possibility for the Council to seek the assistance … when deciding to obtain from independent persons a report on the situation in a Member State within the meaning of Article 7 TEU.61

More importantly, the Agency is an independent expert body that is—as an EU body—aware of the EU’s specificities but at the same time through a range of ­networks institutionally linked to the realities of the national legal systems. This outreach which expert bodies would normally lack is complemented by a high 57 See also Bingham Centre for the Rule of Law, ‘Safeguarding the Rule of Law, Democracy and ­Fundamental Rights: A Monitoring Model for the European Union’ (2013), available at binghamcentre.biicl.org/binghamcentre/news/safeguarding. 58 For 2013 the FRA lists 46 monitoring reports issued over the year on EU Member States. See FRA, Annual Report 2013, 236–37, available at fra.europa.eu/sites/default/files/fra-2014annual-report-highlights-2013-0_en_0.pdf. 59  For 2013 the FRA lists 25 monitoring reports issued over the year on EU Member States. See FRA, Annual Report 2013, ibid, 244–45. 60  Council of the European Union, conclusions of 6 June 2013 on fundamental rights and rule of law and on the Commission 2012 report on the application of the Charter of Fundamental Rights of the European Union, para 9 lit iii and vi. 61 Declaration by the Council on proceedings under Art 7 of the Treaty on European Union, Council document 6396/07 ADD 1 as of 27 February 2007, see also COM(2003) 606 final, s 2.1, 10.

240  Gabriel N Toggenburg and Jonas Grimheden level Scientific Committee bringing together renowned experts with a proven record of solid judgement (composed of, inter alia, members of Constitutional Courts, the former Vice President of the European Court of Human Rights (ECtHR), as well as members of UN, the Council of Europe and national monitoring bodies). All this is not to say that the mandate of the Agency cannot be improved,62 but to make the point that the EU’s fundamental rights body is well equipped to play a relevant role in any future framework addressing the rule of law debate.

62  See on this GN Toggenburg, ‘The EU Fundamental Rights Agency and the Fundamental Rights Charter: How Fundamental is the Link between them?’ in S Peers et al, The EU Charter of Fundamental Rights. A Commentary (Oxford, Hart Publishing, 2013) 1613–26.

Part V

Institutional Implications of Implementing the Rule of Law in Europe

242

14 The EU and Rule of Law—The Unavoidable Question of: Who Controls it? GREGOR SCHUSTERSCHITZ*

I. INTRODUCTION

T

HERE IS NO doubt that the European Union is founded on the ­principle of rule of law. Already the very second Article in the Founding Treaties (Article 2 Treaty on the European Union (TEU)) makes it clear that the European Union is a ­community firmly based on common values. The showcase of Austria in 2000 underlined the unease with which EU Member States tried to tackle a perceived deviation from this canon of values. Hence the introduction of Article 7 to the TEU by the Treaty of Nice, which within itself again demonstrated the delicacy of common fundamental values in the EU: on the one hand, everybody subscribes to the fact that the rule of law (as democracy, human rights and so on) form the core basis of European integration. On the other hand, however, division of labour between the EU and its Member States is based on one of the core principles of the EU, the principle of conferral, embodied in Article 5(1) and Article 4(1) TEU. According to this principle the EU may only take action in areas, where an explicit competence has been conferred to the EU. It is universally agreed that all Member States of the EU should, not only because of Article 2 TEU, abide by the principle of rule of law. It is true that a strong c­ommitment of the EU internationally (as is foreseen in Article 21(1) TEU) can encounter difficulties, when it is not matched by corresponding internal ­ commitment. The parallelism between external action and internal ­oversight, indispensable for the credibility of any Common Foreign and Security

*  Any views or opinions presented in this contribution are solely those of its author and do not ­ ecessarily represent those of his employer. The author would like to thank Gabriel Toggenburg and n Franz Wirtenberger for valuable comments.

244  Gregor Schusterschitz Policy (CFSP), already stood at the cradle of the EU Fundamental Rights Agency in 2007.1 It is apparently not enough that the Union itself abides fully with the rule of law by establishing legal remedies against decisions by Union bodies, an independent Court of Justice and so forth. In the public perception, far more emphasis is given to the internal situation in Member States, that is, the rule of law in situations which might not have any link to Union law. Therefore, after a new coalition government was sworn in in Austria at the beginning of 2000, the ‘EU XIV’ felt the need to act.2 Since there was no obvious link to EU/EC law and no procedure foreseen in the treaties, the measures against Austria were deliberately taken outside the Union forum. When the constitutional amendments in Hungary after 2010 were discussed, one of the challenges was to establish as many links to Union law as possible in order to be able to have the Court of Justice reviewing the respective measures. Since we talk about the domestic situation of rule of law even in the absence of a Union law link (apart from Article 2 TEU), not only is the question of ‘what’ and ‘how’ important, but one of the decisive questions is the ‘who’. Who will control the respect of rule of law in the Member States and who is competent to criticise or even judge possible infractions of the rule of law? From the very start of the discussion of rule of law within the EU, the institutional consequences were critical and were, even when the necessity of ‘what’ was discussed, looming in the background. Therefore, already when the first concept for the conference on rule of law in the EU, to be held at the University of Innsbruck in April 2013, was drawn up, there was a consensus that the question of who is controlling the respect of rule of law in the Union and its Member States and which consequences to the institutional set-up of the Union this might have, also needed to be discussed: who would gain and who would lose power? Therefore, one panel discussion was devoted to this aspect, where representatives of the Commission, the European Parliament, a Member State and the Council of Europe debated the institutional consequences of a rule of law mechanism in the EU.

II.  INSTITUTIONAL POWER PLAY IN ORGANISATIONS AND IN THE EU

Regardless of how carefully Member States of international organisations (including the EU) delimitate (1) the area of competence of the organisation, or (2) the competence of the organs of the organisations, both factors almost always tend to dynamically develop further with the course of time, thereby also restricting the margin of manoeuvre for the Member States. 1  T Blom and V Carraro, ‘An Information Processing Approach to Public Organizations: The Case of the European Union Fundamental Rights Agency’ (2014) 18 European Integration Online Papers 1, 16 ff. 2  On the ‘sanctions’ against Austria, see W Hummer and A Pelinka, Österreich unter ‘EU-­Quarantäne’, Die ‘Maßnahmen der 14’ gegen die österreichische Bundesregierung aus politikwissenschaftlicher und juristischer Sicht (Vienna, Linde Verlag, 2002).

EU and Rule of Law: Who Controls it? 245 It is a common feature of institutions that they tend to increase their power, and international organisations are no exception to that rule. Already the notion of ‘implied powers’ inherent to international organisations illustrates that dynamic and has sometimes blurred the clear distinction between competences of the organisation and of its Member States. The latter often try to safeguard their competences in order to ‘ensure that their brainchild would not become the institutional version of Goethe’s sorcerer’s apprentice, outgrowing the control of the members’,3 with varying success. In addition, especially in the EU, the question is not only if the Union as such is competent to act in a certain field, but also, which organ or institution is empowered to act. Inter-institutional questions very often dominate the discussion in Brussels and sometimes one has the impression that institutional issues take precedence over questions of content. This question does arise vehemently in particular when new policy areas are at hand. In such situations all organs try to optimise their say in that area. The substantial role of institutional questions can also be seen by the fact that sometimes institutional changes are introduced with the hope of leading to material changes in the concrete policy field.4 It is therefore impossible to discuss the role of the EU in a certain area without tackling the institutional consequences. Furthermore, it is impossible to discuss political visions of various organs without carefully scrutinising which institutional repercussions the respective organs have in mind. The same is naturally true for the debate on the rule of law in the EU.

III.  THE PRELUDE TO THE RULE OF LAW MECHANISM—THE NEGOTIATIONS FOR THE FUNDAMENTAL RIGHTS AGENCY

The negotiations for the regulation establishing the EU Fundamental Rights Agency already dealt with some of the institutional issues that are again of pivotal relevance when discussing an EU rule of law mechanism. It might therefore be of interest to recapitulate some of these discussions. As outlined above, the issue of a certain discrepancy between the external dimension (CFSP) of the EU commitment to human rights and its internal dimension was one of the reasons why the European Council in December 2003 called for the establishment of an EU Fundamental Rights Agency.5 From the very beginning, this idea was to a large extent viewed as an institutional question rather than a question of content: the discussion was seldom about how to increase ­fundamental

3  HG Schermers and NM Blokker, International Institutional Law 4th edn (Boston, Martinus Nijhoff Publishers, 2003) § 207. 4  The European External Action Service (Art 27(3) TEU) is a prime example: through the establishment of a new body, more common positions of Member States in CFSP issues shall be brought about. 5  See above, n 1.

246  Gregor Schusterschitz rights protection, but more about the question, who will lose or gain power (Commission? Member States? Parliament?). Given the intricate link between human rights and the rule of law, many problems encountered during the discussions on the establishment of a rule of law mechanism resemble similar problems discussed during the negotiations on the Fundamental Rights Agency.6

A.  The Role of the Agency in the Legislative Procedure The European Commission hurried to develop its own fundamental rights check when presenting proposals for legislation before it would present a proposal of a regulation establishing the agency.7 Thus, the Commission wanted to make sure that the Agency, firstly, would not interfere with the internal Commission procedure when preparing a legislative proposal, and, secondly, would not comment on legislative proposals after they have been tabled. Thus, the Commission made sure to guard its autonomy when preparing proposals. Only reluctantly (insisting that their internal fundamental rights check is sufficient) did the Commission accept during the negotiations a formulation which allows the Commission and each co-legislator to request an opinion on proposals or positions of the respective organ.8

B.  Remit of the Agency—Question of National Country Situations Member States feared from the very beginning that the Agency might interfere with matters in their national competence. In this area, they are already subject to the jurisdiction of the European Court on Human Rights and—more importantly—do not want the EU institutions to gain a role. Therefore, Member States insisted that the Agency can only be active in matters pertaining to Community law and also not in areas falling under the ‘third pillar’. Furthermore there should not be any ‘country reports’ singling out individual Member States. The European Parliament, on the other hand, saw a chance of bringing areas into the Union remit, which hitherto have been carefully guarded by the Member States against

6  For the following see G Schusterschitz, ‘Raum der Freiheit, der Sicherheit und des Rechts’ in G Woschnagg, W Mück and A Payrleitner (eds), Hinter den Kulissen der EU, Österreichs EU-Vorsitz und die Zukunft Europas (Wien, Styriaverlag, 2007) 254–63; G Toggenburg, ‘The EU Fundamental Rights Agency: Satellite or Guiding Star?’ (2007) SWP Comments 2007/C 05. 7 Commission Communication, ‘Compliance with the Charter of Fundamental Rights in ­Commission legislative proposals—Methodology for systematic and rigorous monitoring’ COM(2005) 172 final of 27 April 2005; and Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights, COM(2005)0280 final of 30 June 2005. 8 Art 4(2) of the Regulation (EC) No 168/2007 establishing a European Union Agency for ­Fundamental Rights, OJ No L 53 of 22 February 2007, 1.

EU and Rule of Law: Who Controls it? 247 union interference and wanted to establish a ‘human rights watchdog’, dealing with individual Member States’ situations. In the end, the restriction to Union law was upheld (also due to the legal basis of the regulation, Article 308 Treaty ­establishing the European Community (TEC)), only thematic reports foreseen (and not country-specific ones) and in relation to justice and home affairs, a review clause was agreed upon.

C.  Role of Council of Europe Since 1949 questions of human rights and rule of law have been the core of the activities of the Council of Europe. Its European Convention on Human Rights, inter alia setting up the Court on Human Rights, was essential in shaping a ­common pan-European system of human rights and, consequently, a common pan-European perception of rule of law. Any activity of the EU, whose Member States are all also Member States of the Council of Europe, therefore has to take into account the activities of the Council of Europe. The Council of Europe and in particular its Parliamentary Assembly were highly critical vis-à-vis the idea of an EU Fundamental Rights Agency. In order to accommodate the critique and in order to avoid duplication of work between the Agency and the Council of Europe, certain provisions were foreseen in the founding regulation of the Agency (one member of the Board of Agency is nominated by the Council of Europe, the Agency has to build upon the work of the Council of Europe and so forth).

D.  Relevance for Rule of Law Discussion All the institutional issues mentioned above, in effect, the role of the Agency ­vis-à-vis Member States, Commission and European Parliament, and the role of the Council of Europe, resurfaced in the rule of law discussion, with similar ­arguments being exchanged.

IV.  INSTITUTIONAL CONSIDERATIONS BEHIND THE RULE OF LAW IN THE EU

As outlined above and in other contributions in this book,9 the issue at hand is not so much the respect for rule of law by the EU institutions and organs, but more the general question of the respect for rule of law by the Member States even in the absence of a Union law link. Any role for an EU organ in such a mechanism

9  See in particular C Closa and D Kochenov, ‘Reinforcement of the Rule of Law Oversight in the European Union: Key Options’.

248  Gregor Schusterschitz therefore would mean a shift of power towards that respective EU organ at the cost of the Member States but would also have consequences for the embedment of the EU in existing international rule of law structures or its detachment therefrom (in particular the rule of law system established within the Council of Europe). Each institution has the tendency to try to uphold its autonomy as far as possible. Any activity, proposal or position of the various involved players has to be seen in that institutional context. In the following, concepts of the European Commission, the European Parliament and the Council shall be analysed through the institutional lens.

A.  European Commission In March 2014 the European Commission published a communication entitled, ‘A new framework to strengthen the Rule of Law’10 in which it sets out the importance of rule of law in the Union and the necessity to have a Union mechanism addressing rule of law issues. The Communication was based on respective calls for action addressed to the Commission by both the Council and the European Parliament. In line with the understanding that the rule of law on the Union level is sufficiently safeguarded, the Communication concentrates on Member States’ performance in areas of national competence. Naturally, the Communication sees the role of the Commission at the heart of any mechanism. It sets a rather high threshold for its activation, for example, when there is a ‘systemic breakdown’ of the rule of law situation in a Member State11 and not just ‘individual breaches of fundamental rights’ or ‘a miscarriage of justice’.12 In the three-step-approach that would follow, the Commission would be in the driving seat, firstly assessing the situation, secondly sending a ‘rule of law opinion’ to the Member State concerned and finally issuing a ‘rule of law recommendation’ to the Member State, should the previous stages not have yielded a satisfactory outcome. During the entire process the Commission might seek advice also from other institutions like the Fundamental Rights Agency or the Council of Europe. ‘[A]s a rule and in appropriate cases’ the Commission will also seek advice from the Venice Commission of the Council of Europe. From an institutional point of view, the Communication is notable in three respects: 1. The Commission will be the driving force of the process, handling it similarly to infringement procedures (multistage approach for instance). 2. Other actors in the field, in particular the EU Fundamental Rights Agency, have merely an auxiliary role in the process.

10 

Document COM(2014) 158 final/2 of 19 March 2014. See Press Release IP/14/237 of 11 March 2014, 2. 12  Communication (fn 10), Ch 4.1. 11 

EU and Rule of Law: Who Controls it? 249 3. Yet, the Commission seems to be willing to acknowledge the traditional role of the Council of Europe in the area of rule of law, in particular the role of the Venice Commission, whose aim it is to provide advice on rule of law issues. Thus, should the mechanism be established as foreseen in the Communication, the competence of the Commission would be substantially broadened, reducing other actors within the EU, including the Fundamental Rights Agency, to assisting bodies. The Commission acknowledges, however, that all Member States (and ideally the EU) are part of the larger rule of law system of the Council of Europe and therefore support a consistent approach of the European Commission and the Venice Commission.

B.  European Parliament The European Parliament has for years advocated for a tighter control of Member States in relation to their human rights and rule of law performance. Consequently, such tighter control was already favoured by Parliament during the negotiations for the EU Fundamental Rights Agency in 2006. From 2012 to 2014, a possible EU mechanism on rule of law featured prominently in a number of resolutions adopted by the European Parliament. In a resolution adopted on 3 July 2013 on the situation in Hungary, the European Parliament developed ideas on a rule of law mechanism ‘to enforce Article 2 TEU effectively’.13 In paragraph 78 of the resolution, the European Parliament proposed different options for an institutional set-up, including the creation of a ‘Copenhagen Commission’ or a ‘Copenhagen high-level group’ in order to ensure Member States’ compliance with Article 2 TEU and the continuity of respect for the Copenhagen criteria. Additionally, the EU Fundamental Rights Agency should also be competent to assess individual country situations. A rule of law mechanism should lead to a ‘strengthened Commission-Council-European Parliament-Member States dialogue on measures to be taken’ and finally to recommendations on how to remedy the situation in the Member State concerned.14 In any case, however, it would be desirable to increase the cooperation with other international actors, in particular the Council of Europe and its Venice Commission. In its resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012),15 the European Parliament developed further the idea of a Copenhagen Commission. It should be set up by an inter-institutional agreement and experts should be appointed ‘inter alia by Parliament’. Its aim would be to ‘ensure compliance by all Member States’ with the values contained in

13  Heading before para 72 of the European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary, P7_TA(2013)0315. 14  ibid, Para 80. 15 P7_TA(2014)0173.

250  Gregor Schusterschitz Article 2 TEU (paragraph 11).16 In addition to the Copenhagen Commission, the European Parliament also called for the establishment (by Commission ­decision) of a ‘Copenhagen mechanism’ and, in paragraph 9 of the resolution, provides details on how this mechanism should function. Among other things, the mechanism should monitor the situation in the EU and ‘in the individual member states’ (paragraph 9 (c)) and should contain an ‘early-warning system’, dialogue and some kind of ‘infringement procedure’ (paragraph 9 (i)). In all these activities, the European Parliament should be closely involved. Whereas the resolution of 27 February 2014 strongly favours an autonomous assessment by the EU without repeating earlier calls for a closer cooperation in particular with the Council of Europe, Parliament seems to retract a bit only a few weeks later and—on 12 March 2014—again opines that a strong cooperation ‘between the European Parliament and the Venice Commission’ is needed.17 In relation to a possible rule of law mechanism, no details are given, just that the Commission is required to present a proposal entailing an effective infringement procedure. Though the ideas of the European Parliament differ a bit from resolution to resolution, some underlying institutional traits can be detected: 1. There should be an independent oversight mechanism that should be at equal distance from the organs, that is, not just a further task for the Commission. 2. The EU Fundamental Rights Agency should play a substantial role. 3. The independence of the mechanism should be underlined by the creation of a new body (Copenhagen Commission), probably with the aim of establishing its own indisputable reputation (comparable to the Venice Commission), and closely controlled by Parliament. 4. It remains unclear to what extent the expertise of the Council of Europe would be included.

C. Council Interestingly enough, the current rule of law discussion is to a large extent driven by various Member States,18 though, ultimately, it will be their performance as Member States that would be under scrutiny. Thus, a certain number of Member States would be prepared to accept some kind of EU mechanism even if it means more external scrutiny for them. 16  In addition the ‘Copenhagen Commission’ should also monitor the fundamental rights situation in Member States until a revision of the founding regulations of the Fundamental Rights Agency would allow such an activity. 17  Resolution P7_TA(2014)0231, para 8. 18  See the initiatives by the Irish Council Presidency and the ‘Four Member States’; AJ Kumin, Global Activities and Current Initiatives in the Union to Strengthen the Rule of Law—A State of Play, ch 12 of this volume.

EU and Rule of Law: Who Controls it? 251 After some discussions within the Council, however, it transpired that the willingness of Member States to accept yet another independent oversight mechanism is not without limits. Some Member States questioned the legal basis of an EU mechanism: is the very broad and general provision of Article 2 TEU sufficient as a legal basis for a mechanism which also covers areas of Member State competence? Where does this leave us with the principle of conferral? The Legal Service of the Council made clear that in its opinion there is no legal basis for a rule of law mechanism which goes beyond Article 7 TEU. Thus, the mechanisms proposed by the Commission and by the European Parliament are not possible given the current status of primary law. This legal advice had the (by some welcome) institutional effect that other organs or Union bodies, including the Commission, Parliament and Fundamental Rights Agency cannot, in the opinion of the Council Legal Service, interfere with the rule of law performance of individual Member States if there is not an EU competence involved. As a consequence, any rule of law mechanism could only be designed as a mechanism among peers, as such, the Member States. After further discussions at the Council level, the Council adopted on 16 December 2014 (in its format ‘general affairs’) conclusions on ensuring the respect for the rule of law, in which a ‘dialogue among all Member States within the Council to promote and safeguard the rule of law in the framework of the Treaties’ was established.19 As such, the ‘mechanism’ would consist of a dialogue between all Member States once a year (thematic debates not excluded). The dialogue must, however, pay full respect to a number of principles, inter alia the principle of conferral and the respect for the national identity of Member States. In December 2016, the Council will evaluate the dialogue. Compared to the concepts developed by the Commission and the European Parliament, the mechanism established by the Council lacks important elements, in particular these procedural details: who monitors? What happens if infringements have been detected? It becomes clear that Member States are not willing to commit themselves to new processes beyond the existing ones and also that they resist the idea of giving other Union organs, in particular the Commission or the European Parliament, any say in that regard. In their opinion, the existing mechanisms, for example, in the Council of Europe, seem to suffice grosso modo. This is particularly remarkable bearing in mind that it was the Council, wherein two important rule of law initiatives were launched, and who asked the Commission to come forward with proposals for a rule of law mechanism.20

19  20 

Council document No 17014/14. cf Kumin (n 18).

252  Gregor Schusterschitz D.  Comparison of the Concepts of the Three Principal EU Organs All three organs share the belief that there is a need to address rule of law issues also in relation to the Member States themselves. Article 2 TEU illustrates that the EU is a community of shared values. The problem starts when we try to interpret the nature of Article 2 TEU. Does it create a Union competence as Commission and Parliament indicate, or not, as the Council thinks? Yet, the interpretation of Article 2 TEU merely gives the argumentative basis for the fundamentally differing answers to the question ‘who monitors and controls?’ The reasons for these differences can also be found in the consequences a mechanism would have for the position of the respective organ in the inter-institutional power play of the EU. The Commission in its strong position as guardian of the treaties can build on existing mechanisms in Union law and extend a lighter version of the traditional infringement procedure (which also—to a large extent—consists of a dialogue between the Commission and the respective Member State)21 to the rule of law situation in Member States. Thus, an ‘infringement procedure light’ would be—in the Commission’s opinion—a suitable solution. The European Parliament, for institutional reasons, follows a different path. Bearing in mind the fact that the control of Parliament over the Commission is not always easily achieved, Parliament favours a new body with equal distance to all organs. In consequence, this means a mechanism substantially closer to Parliament than any other mechanism could be, since an ‘infringement procedure light’ would still be a Commissiondriven exercise and a rule of law dialogue among Member States in the Council leaves Parliament entirely at the sidelines. The Council members, seeing that the matters at hand are of a purely domestic nature, are not willing to accept interference of other organs in their affairs and therefore opt for an exclusively internal approach. This is interesting, since on other occasions the Member States are not so reluctant and accept an additional role for another organ in order to reduce peer pressure among themselves.22 In the rule of law area, however, Member States are already part of the Council of Europe system and therefore they do not see the necessity to add yet another layer and to increase the power of either the ­Commission or Parliament at their cost. As outlined above, the institutional set-up of a rule of law mechanism has two aspects, firstly the inter-institutional arrangement within the EU, and, secondly, the relation of international, non-EU, mechanisms. Given the traditional e­ mphasis of the Council of Europe on the rule of law, all concepts deal with the relationship of an EU mechanism to the Council of Europe.

21  Only a fraction of infringement procedures ever make it to the Court of Justice, so infringement procedures are not so much about judicial remedy but more about ‘compliance bargaining’; cf U ­Haltern, Europarecht Dogmatik im Kontext (Tübingen, Mohr Siehbeck, 2005) 163. 22  See in particular the role given to the Commission in Art 8 of the so called ‘Fiscal Pact’, Federal Law Gazette Vol III, No 17/2013.

EU and Rule of Law: Who Controls it? 253 Whereas the Commission is—as a rule—adamant about its autonomy when taking decisions, the Commission is more flexible when it comes to information gathering. Hence the willingness of the Commission to build on findings of other institutions, like the EU Fundamental Rights Agency or the Council of Europe. In relation to the latter, however, the Commission is ready to go even further: the Council of Europe should not only be a source of information but the ­Commission would also strive for a common appraisal of rule of law situations with the Venice Commission. Any difference which later on might impact negatively on the rule of law in Europe as such should be avoided.23 The European Parliament, on the other hand, tries to achieve as much autonomy as possible from the Council of Europe. It acknowledges its role somewhat reluctantly, but in the end favours the creation of an EU competitor to the Venice Commission by proposing an EU ‘Copenhagen Commission’. This is also understandable from an institutional point of view: the European Parliament has no control whatsoever over the Venice Commission, whereas a Copenhagen Commission would be accountable to the European Parliament. The Council, finally, does not need to define its position towards the Council of Europe, since all Member States of the EU are also members of the Council of Europe.

V. CONCLUSION

As in all areas, where the Union competence is shaky at its best, any activity of Union organs and institutions becomes also a playfield for power plays between the actors involved. Thus it is no surprise that institutional considerations play a role in shaping concepts. Given the inter-institutional complexities described above it is unrealistic to expect that any future rule of law mechanism will entrust one of the three main political actors with taking the lead in this endeavour. In the end, however, it will be unavoidable that any operational function will have to rest with the Commission. It is hardly imaginable that the peers will effectively deal with one of them. This difficulty of States to actively take steps against one of theirs is illustrated by the marginal importance of State-to-State infringement procedures in comparison to Commission-driven infringement procedures (Article 259 Treaty on the Functioning of the European Union (TFEU) versus Article 258 TFEU) and even more so by the clear attempt of the States Parties

23  For similar reasons, the Treaty of Lisbon foresees the integration of the EU to the human rights protection system of the Council of Europe by acceding to the ECHR (Article 6(2) TEU). The Court of Justice, however, seems to try to delay this accession predominantly for institutional reasons (see ECJ Opinion 2/13, not yet published). In that respect, in particular, its reasoning on CFSP is enlightening (paras 249–57): the Court points out that it has no competence to rule on fundamental rights issues, but denies it also to the European Court of Human Rights, because it is a non-EU body! Thus, the Court is accepting a lower standard of protection of human rights as long as another international court, the European Court of Human Rights, does not have more power than the European Court of Justice.

254  Gregor Schusterschitz to the Fiscal Compact24 to delegate the initiation of court proceedings as much as possible to the Commission.25 The European Parliament, on the other hand, would probably politicise any mechanism and thereby antagonise the respective State instead of positively engaging it. As can be seen in infringement procedures in accordance with Article 258 TFEU, in particular the Commission would be most appropriately placed to play a decisive role in any rule of law mechanism should Member States in the future accept an effective say of the Union in these matters. Moreover, given the perception that there are already a variety of mechanisms and expert institutions in place, the calls for the establishment of new expert bodies (such as a Copenhagen Commission) are not likely to be successful. Against this background, it might be advisable to take a closer look at the options of how to best use the assistance and expertise of existing institutions, when contemplating a mechanism which deserves that name and goes beyond a mere exchange of views at a formal Council session. In that regard, in particular the Council of Europe, including its Venice Commission, which provided expertise in relation to—inter alia—Hungary and Ukraine as well as the Fundamental Rights Agency, which— despite early concerns—proved to be a highly efficient link between the European Union and the Council of Europe’s expert bodies,26 should be reckoned with.

24 

See above n 23. a detailed account of this delegation and the underlying political considerations see G Schusterschitz, ‘Der “Fiskalpakt” aus völkerrechtlicher und verfassungsrechtlicher Sicht’ in C Vedder (ed), Völkerrecht 2012—Richterliche Praxis und politische Realität (Frankfurt, Peter Lang Verlag, 2013) pp 65 ff (70 f). 26  To give one quote: ‘You can hardly find two organisations working more closely than we are … We both intervene in most of each other’s activities. We have joint projects, joint financing, ie case reports, asylum etc.’ See Secretariat of the Committee of Ministers, document DD(2013)1141 of 4 November 2013. 25 For

15 The Rule of Law in European Policy: A Parliamentarian’s View EVA LICHTENBERGER

I. INTRODUCTION The Union 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.1

A

RTICLE TWO OF the Charter of Fundamental Rights sets out the basic principles for European policy making. It names the guiding principles for internal legislation and external action and is often cited in resolutions of the European Parliament. In this article I will present some examples—and shortcomings—in different policy areas and proposals for possible changes to enhance a policy that enables a better enforcement of the rule of law.

II.  THE RULE OF LAW IN NEIGHBOURHOOD POLICY AND EXTERNAL ACTION

The promotion of the rule of law has become an important dimension of the European Union’s relation with other states and with its neighbouring states. This is sometimes criticised by the other states as a kind of post-imperialism especially when it comes to human rights cases. In spite of this, the attractiveness of the European Union as a system following the rule of law is not called into question, be it for citizens or for businesses. But it always needs concrete action for the promotion of the rule of law. It is not enough to bind financial resources to the existence of the rule of law in a recipient state, it needs active involvement and specific action. Here are some examples:

1 

European Union, Consolidated Treaties Charter of Fundamental Rights, March 2010, Art 2.

256  Eva Lichtenberger A.  Neighbourhood-policy: Western Balkans To prepare the states of the Western Balkans and to develop the capacities for state building, the Commission organises special Missions. For example, in Kosovo, where under the auspices of the CSDP (Common Security and Defence Policy) and on invitation of the Kosovo authorities a special EU Rule of Law Mission (EULEX) was operational in the whole territory of Kosovo from 2009 on. It was worth more than €200 million and involved a total of 2000 international and local staff. The mission focuses on monitoring and advising the implementation of the rule of law. EU staff work side by side with colleagues in the judicial and law enforcement authorities of Kosovo. A special division composed of judges, prosecutors, police officers and custom officers focuses on the executive bodies to investigate on corruption, war crimes, organised crime and to give advice. They are mainly working in mixed teams with the locals. Of course this mission will take time and step-by-step the EU staff will reduce their role to simply advising the strategic units in police and justice.2 The EULEX units are present in different compositions in the states of the ­Western Balkans and also outside of Europe.

B. Mexico As a former member of the Mexico-EU Delegation (from 2004 to 2009), I was following the case of the ‘feminicides’ (systematic murder of women without ­consequences) in Mexico. There was a long debate in the European Parliament on how to stop these crimes and how to guarantee a follow-up by the police and a fair trial for the families of the victims. In 2007 and 2013 the European Parliament adopted resolutions and held debates on the topic. According to human rights defenders in Mexico, who were present at the debate, we learned not only about the enormous amount of violence and murder against women, but also about harassment of witnesses and solicitors, death threats and threats of torture against them. After 2007, the Commission created a programme together with human rights activists in Mexico to raise awareness within the police and the juridical bodies and to train the police that had, according to reports, some limited effect. Under the perspective of rule of law, this case shows very clearly the role of the European Union in international relations. The problem of feminicides is not only that it is a crime and a violation of a number of conventions that were signed by Mexico. An additional problem is the lack of tracking those crimes, and if there is a follow-up, witnesses get threatened. So the central elements of rule of law are lacking. Law is not enforced, especially if a woman is the victim. The training

2 

See for details: EULEX KOSOVO, Euroean Union Rule of Law Mission, www.eulex-kosovo.eu.

The Rule of Law in European Policy 257 ­ rogrammes for the police, with the participation of European Union staff, is seen p as a key element. However, the very difficult fight against corruption within the police in this area also plays an important role. A group of Members of the European Parliament was following the developments in this topic very closely and reported to the respective committee together with members of the EU-Mexico Delegation.3 For all the examples in foreign policy, it is important to remember that the Union and its governing bodies also have to consider other elements in their political action. The overarching goal in all these cases was the wish to motivate our partners to respect the rule of law, which is in this sense not only a theoretical concept but also of crucial importance for the contacts between people and ­businesses; nevertheless, the concept and the importance of the rule of law differ in other political systems from our own definition.

III.  THE RULE OF LAW WITHIN THE BORDERS OF THE EU

There are also internal challenges concerning the rule of law. The first is the lack of correct implementation of European directives, laws and framework laws in the Member States, and the follow-up is cumbersome. The Commission as the ‘guardian of the treaties’ is responsible for the control of implementation and application of Union Law and can, in the case of non-implementation or infringements, start an infringement procedure against the Member State. The European Parliament has the role of scrutiny of the Commission’s action safeguarding implementation and application of European rules. The Commission issues a yearly report, which it discusses in the European Parliament. The debate on the report is held in the Committee of Legal Affairs and in the end a resolution is voted also in plenary. The Committee invites experts for hearings. In 2013 it asked for a special analysis, for which the Commission did not give the necessary access to data, which led to a legal expertise on the access to data. Access to data and timely and full information to complainants is a crucial ­element for the legality and legal certainty in a legal system. This has always been a demand of the Legal Committee, and the shortcomings of the Commission’s action in this respect was criticised by a big majority in the plenary vote. It demanded that the Commission should follow an administrative procedure that would keep a complainant fully informed if he/she notified the Commission of a breach of European Law or a lack of implementation.4

3  European Parliament, Report on the murders of women (feminicides) in Central America and Mexico and the role of the European Union in fighting this phenomenon (2007/2025(INI)). 4  Complainants are an ‘early warning system’ for the legislator. If there is a large amount of complaints concerning a certain law it would be useful for the respective committees to know about, to avoid and to correct shortcomings.

258  Eva Lichtenberger The procedure the Commission followed in the last years was more and more dominated by the so-called Pilot Project, wherein the Commission, after receiving a complaint, only notified the complainant that his/her letter had arrived. In a next step, the Commission negotiated with the concerned Member State about the case without back-checking with the complainant and without information. So there was literally only one part heard in detail. This led to a big percentage of cases that ended up with a decision that could hardly be understood by the concerned persons. The procedure itself is not regulated clearly enough to guarantee full information and access to documents.

A.  The Need for an Administrative Law for the European Institutions This sheds light on a basic problem of the treaties. There is still no administrative law that regulates certain procedures in the Union’s institutions. In the last legislature the Legal Committee formed a sub-group that tried to enforce citizens’ rights to good administration with the following principles: —— Clarify the main principles and procedural standards; —— Ensure clearer rights and provide more legal certainty to citizens and economic operators, who would benefit from the uniform procedural guarantees, enforceable in Courts, in their relations with all EU institutions; —— Contribute to a more efficient EU administration and bring about cost savings, as proper standards of administration save time, costs and burdens; —— Enhance trust and improve the relationship between the citizen and the EU administration, by increasing its transparency and accessibility, thereby enhancing also the legitimacy of the EU.5 This whole initiative is based on Article 298 Treaty on the Functioning of the European Union (TFEU), which reads, ‘1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have support of an open, efficient and independent European administration.’6 In general terms this is called the right of citizens to good administration— a terminology that has been taken over from the northern European states. The European Ombudsman developed a ‘European Code of Good Administrative Behaviour’ which was endorsed by the European Parliament—but as it is only a code of conduct, it is not binding. The initiative of the Legal Committee in the last term reacted on this fact by asking the Commission to bring forward a proposal for an Administrative Law. However, the Commission is still reluctant to do so

5  6 

Law of Administrative Procedure of the European Union, Brussels, 2012, 7. ibid, 8.

The Rule of Law in European Policy 259 and promised to ‘examine the existing instruments and case law at EU-level and practices in the Member States to see if any further steps are needed.’7 The resistance against a clearly regulated procedural law also comes from the Council. There is the contradiction between continental law and the British lawtradition, and there is the permanent conflict between national laws and European regulation. For the citizen, instead a clearly regulated administrative procedure would also enhance trust into the European institutions and make the call for strengthening the rule of law in external action more credible.

B.  The Case of Hungary: The Article 7 Dilemma To understand the developments in Hungary it might be useful to look into the history of Prime Minister Orban and his party/parties. Viktor Orban has a liberal background—at least since he was a member of the Fidesz- party—and was even vice-chairman of the Liberal International. However, in 2000 the Fidesz party joined the Group of the European People’s Party in the European Parliament. This was after Orban had become Prime Minister in Hungary. Already at this stage he had become famous as a radical reformist and brought about big changes in the Hungarian administration and he changed the political style in Hungary, as well as ignoring the parliamentarian duties of the Prime Minister and demonstrating an aggressive way of ruling and a lack of compromise with other political forces. Orban became prominent in the international media when he passed the so-called ‘status law’ addressed to the Hungarian minorities in the neighbouring states. Romania and Slovakia criticised this law as interference in their domestic affairs, granting the Hungarians outside Hungary rights that are usually only given to inhabitants. It must be mentioned that this is not a unique case—also Italy grants Italians abroad voting rights and the right to participate in referenda by postal vote.8 But Orban was arguing that this law was a way to correct the Treaty of Trianon of 1920. This of course, in the case of Hungary, brought back bad memories of the ‘Greater Hungary’, implicating dreams and nationalistic ideas from the past. Already in this early stage of his political career Orban was seen to not really respect constitutional principles and duties. In his second term as Prime Minister

7  President of the European Commission Barroso, in his answer to the written question of the Legal Committee. 8  This is also the case in other Member States too. Italy is a more prominent example; where the votes from abroad were decisive in national elections and differed from what was expected. When the Berlusconi government made voting from abroad easier, it expected to get the majority of votes for their party. The opposite was true. This shows a common reasoning behind such laws—it is not so much the respect for the rights of people but partisan motivation.

260  Eva Lichtenberger he started with a two-thirds majority of his party to change the Hungarian political system from scratch on: —— Changing the Fundamental Law in order to request a two-thirds majority for legislation on ‘critical’ topics; —— The former president of the Supreme Court was dismissed prematurely; —— The retirement age of Hungarian judges, prosecutors and notaries was lowered radically; —— Changing the electoral law in a way that it would be extremely difficult for any party other than the dominant party to win seats; —— Installing a so-called Regulatory Authority in media law, with high penalties for journalists and editors; and —— Nationalistic attacks against minorities, especially Roma villages and people were not dealt with properly by law-enforcement-authorities. This led to strong reactions all over Europe—comments of international media, reactions of governments and the Commission and European Parliament as well as the public in Hungary followed. This debate was complicated by the fact that some of the actions set by Orban were also found in other Member States’ laws but never the complete list. Together with growing concerns about the situation of Roma in Hungary some MEPs and parts of the European press called for an Article 7 Treaty on European Union (TEU) procedure against Hungary. The changes to the Hungarian constitution from March 2013 were seen to be in contradiction with the EU’s democratic values and would weaken the independence of justice— a core element of the rule of law. Article 7 TEU rules on the consequences for a Member State who is in breach of the values and principles of the Union and was already part of the Treaty of Amsterdam in 1997 in view of the oncoming enlargement of the Union. It should protect the democratic values of the Union. It should, ‘tackle the discrepancy between the democratic model promoted by the EU in its external relations and its modest capacity to intervene whenever democratic values are at risk of being violated within one of its Member States’.9 During the Convention for a European Constitution 2003/2003 the Article 7 procedure was a debated topic. Already then some members of the Convention noted that there should be a more graduated response to possible breaches of the treaties by Member States. Some members even called the Article 7 procedure an ‘atomic bomb’ and asked for alternatives. This debate did not end with the Lisbon Treaty—it was intensified during several events—for example, the expulsion of Roma people by the French Government or the infringements of the rule of law in Bulgaria by widespread corruption in the country, which was followed by a monitoring from the European Commission.

9  European Parliamentary Research Service, Legal Affairs Publication, Article 7 TEU: a mechanism to protect EU values, European Parliamentary Research Service Blog, 7 Oct 2013, 1.

The Rule of Law in European Policy 261 The Article 7 procedure would be a very strong instrument since it allows suspending voting rights. But it is not easy to invoke the procedure—it needs a unanimous decision from the Member States (excluding the one in question). However, there is a warning precedent on the table for the activation of the Article 7 procedure.—In the case of the year 2000 when the Peoples’ Party of ­Austria formed a coalition with a far-right populist party and its consequences. The Article 7 procedure was debated but not initiated. Especially in Member States that had followed years of political strategy of a ‘cordon sanitaire’ against far-right parties the debate was heated. But there were also more moderate voices in the Council. So in the end, there were no ‘sanctions’ by the European Union, but ‘measures’ by the Member States were taken. In spite of the avoidance of an Article 7 procedure, there was a growing opposition to the Union as a whole to be seen in Austria as a consequence of the mere discussion about and the critical voices of some heads of Member States. The critical view from the ‘outside’ in a way strengthened the existing coalition between the ÖVP and the FPÖ and intensified a nationalistic attitude in the Austrian debate. This example shows that the Article 7 procedure must be discussed and activated with caution to not provoke adverse results in the concerned Member State. The aforementioned decisions of the Orban government provoked a new round of discussion which focused on a report of the Committee on Civil Liberties, Justice and Home Affairs on the situation in Hungary.10 Before the Report was voted on in July 2013, there had been a long and intense debate not only in the committee. The report: —— Asks for a close monitoring of the governments’ actions and decisions along criteria set out in the report; —— Asks for a so-called ‘Copenhagen Commission’, composed out of independent experts, to monitor the Copenhagen Criteria (which are applied for the ­accession of new Member States); —— Article 7 TEU can still be activated if the government does not comply with the detailed considerations of the report.11 In paragraph 71 of the report, the fundamental character of rule of law is mentioned: The European Parliament … (71) Urges the Hungarian authorities to implement as swiftly as possible all the measures the European Commission as the guardian of the treaties deems necessary in order to

10  Motion for a European Parliament Resolution on the situation of fundamental rights, standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) 23 June 2013, voted on 3 July 2013, European Parliament online, doc A7-02229/2013. 11  See the complete Resolution: Motion for a European Parliament Resolution on the situation of fundamental rights, standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) 23 June 2013, voted on 3 July 2013, European Parliament online, doc A7-02229/2013.

262  Eva Lichtenberger fully comply with EU law, fully comply with the decisions of the Hungarian Constitutional Court and implement as swiftly as possible the following recommendations in line with the recommendations of the Venice Commission, the Council of Europe and other international bodies for the protection of the rule of law and fundamental rights, with a view to fully complying with the rule of law, its key requirements on the constitutional setting, the system of checks and balances and the independence of the judiciary, as well as on strong safeguards for fundamental rights, including freedom of expression, the media and religion or belief, protection of minorities, action to combat discrimination, and the right to property.12

This is followed by a detailed list of changes that the government has to take.

C.  The Future of Article 7 TEU The Hungarian case made clear that Article 7 is in fact sometimes too strong to be used in situations like this. The Report on Hungary showed a different approach— it is not focussing on confrontation but on monitoring strategies to give the ­Hungarian government the chance to correct its infringements of European values and to be again in conformity with the values written down in the Charter of ­Fundamental Rights of the European Union. The strategy somewhat resembles those used in candidate states, as described above. But Article 7 serves as a permanent warning for possible non-compliance of a given Member State. The other possibilities of reaction of the European Institutions on violations of the rule of law or fundamental rights would be either the ordinary infringement procedure or decisions of the European Court of Justice on individual cases. Ordinary infringement procedures are usually initiated if there is non-­ compliance with European legislation observed in a Member State, be it in the implementation itself or in connection with legal complaints. This is not as easy in the case of human rights infringements. Furthermore, the infringement procedure is always focussing on a single law and misses the greater picture, if a series of infringements of different laws point in the same direction. So for the complex changes that were decided in Hungary, this procedure could only cover some details—for example in media law. The problem of ‘delegating’ the decisions on single cases to the Court of Justice is two-fold: (i) it takes a long time until a case is put to court; and (ii) can only decide on single elements and misses out on the more general point of view on the developments of a given Member State. In March 2014 the Commission presented a common European mechanism for protection of the rule of law in the form of a Communication. It can be seen as a new mode of tackling serious cases like widespread corruption in a State, authoritarian practices or human rights’ breaches (like the expulsion of Roma in

12 

ibid, para 71.

The Rule of Law in European Policy 263 France). It is all about systematic risks and not to tackle individual breaches or misbehaviour—it is focused on state action. It will not replace Article 7 but regulates the procedure that precedes an Article 7 mechanism. It is designed: [T]o find a solution with the Member State concerned in order to prevent the emerging of a systemic threat to the rule of law in that Member State that could develop into a ‘clear risk of a serious breach’ within the meaning of Article 7 TEU, which would require the mechanisms provided for in that Article to be launched.13

The term ‘serious breach’ is of course a new field for discussion. To clarify it a bit better, the text adds: The Framework will be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law.14

The Commission will send a motivated opinion to the authorities, which will be confidential. If there is no satisfactory response to the Commission’s recommendations, then it will consider triggering some of the provisions of Article 7. In its work with the guilty member, the Commission will use external assistance as well from the European Human Rights Agency or the Venice Commission of the Council of Europe. What makes the proposed mechanism especially valuable is that it defines more generally what the rule of law means because every Member State has its own legal history and system of values which makes it hard to assess violations of the rule of law.15 As key elements the Commission mentions: —— —— —— ——

Legality (transparency, accountability and democratic process); Legal certainty; Prohibition of arbitrariness; Access to justice before independent and impartial courts (independence of courts); —— Respect for human rights, non-discrimination and equality before the law. The strategy proposed seems to be flexible enough to adapt to different kinds of infringements and clear enough to give a good guideline. From a legal point of view, one problem is still open: a Communication is a very weak instrument within the range of possibilities the Commission has. But the underlying concept of triggering Article 7 could compensate for this weakness.

13  European Commission: Communication from the Commission to the European Parliament and the Council, ‘A new EU Framework to strenghten the Rule of Law’ (Brussels, 19 March 2014) 6. 14 ibid. 15  eu inside, ‘The Path toward Article 7 of EU Treaty Is Now Clear’ Adelina Marini, Twitter @ euinside, 24 March 2014.

264  Eva Lichtenberger In the case of Hungary, the European Parliament proposed a certain way of dealing with Member States infringing human rights or the rule of law without being in open breach of the Charter of Fundamental Rights of the European Union. But there is no doubt about the necessity of a reform by adding a second way of dealing with these developments. It could take the form of the procedure proposed by the European Parliament’s resolution, but in any case, it has to be formalised. In the negotiations between the Council, European Parliament and Commission the proposal can be amended significantly. If the proposed strategy for ­Hungary and the Communication of the Commission can be integrated, there might be a relevant step forward. But after all, in the given situation, this is the only way to proceed: there is no majority to be found in the Council to agree to a new convention to integrate these necessary changes into the treaties.

16 The Rule of Law and the Constitutionalisation of the European Union MONICA CLAES AND MATTEO BONELLI*

I. INTRODUCTION

A

S IS CLEAR from the first part of this volume, there is wide agreement on the importance of the rule of law for any polity, including the European Union. Absent from the original treaties and not much debated in the ­initial stages of EU integration, rule of law talk gradually appeared in the realm of EU law and the text of the treaties. Today, the rule of law is considered a ‘constitutional principle’1 of the EU and plays a crucial role in different areas of EU law. Like many other actors, including international organisations and agencies, the EU is engaged in rule of law promotion both domestically and internationally, and contributes to the vital debate that is unfolding with the aim to identify more precisely the content of the principle and understand how it should be implemented in practice. This chapter investigates the development of rule of law talk in EU law, and analyses the role the concept has played in the process of the constitutionalisation of Europe. It shows how the concept has been used in different meanings in ­various stages of the process of constitutionalisation. The current debate focuses on the monitoring and enforcement of the rule of law, and EU fundamental ­values more generally, in the Member States of the Union and represents a new stage in this ongoing process of the constitutionalisation of Europe. In fact, concerns over respect for the rule of law in several European Member States have grown over the past years, with institutions and academics questioning the adequacy of current instruments and reflecting on what the EU can and should do to enforce

* Monica Claes is a Professor of European and Comparative Constitutional Law at Maastricht ­University. Matteo Bonelli is a PhD researcher at Maastricht University. 1  L Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a ­Constitutional Principle of EU Law’ (2010) 6(3) European Constitutional Law Review 359–396.

266  Monica Claes and Matteo Bonelli the rule of law in the Member States, who should be primarily responsible, and which procedures should be in place. Proponents of an active role for the EU start from the idea that the EU is a Union of values, which requires compliance with the rule of law also from its Member States, while opponents question the competence, the capacity and the legitimacy of the EU to interfere in what touches on the core of national sovereignty. EU institutions have put forward several initiatives: the Commission presented ‘A new framework to strengthen the rule of law in the European Union’;2 the Council proposed to have a ‘rule of law dialogue’ once a year between the Member States;3 and the European Parliament (EP) has worked on a proposal for an ‘EU Values Scoreboard’.4 This chapter is organised as follows. The first part discusses the function of the concept of the rule of law in the context of the EU. The second part situates the rule of law in the process of constitutionalisation of the EU. It demonstrates how, in the various stages and dimensions of this on-going process, the principle operates differently, and gradually acquires a thicker meaning. This sets the stage in the third part for the current debate on the role of the EU in monitoring and enforcing the rule of law in the EU Member States. The fourth part then discusses the Commission Framework and the approach of the Council and the Member States on political dialogue. It reflects on the impact each of them may have on the ongoing process of constitutionalisation of the European Union. We conclude with some general remarks on the way forward.

II.  RULE OF LAW, THE CONCEPT AND THE EUROPEAN UNION

There is wide agreement in Europe and around the globe that the rule of law is one of the key concepts of contemporary legal orders, along with ‘democracy’ and ‘respect for fundamental rights’.5 It is ‘one of the most important political i­deals of our time’,6 a precondition for any functioning constitutional democracy,7 and

2 European Commission, Communication from the Commission to the European Parliament and the Council ‘A new EU Framework to strengthen the Rule of Law’ (Brussels, 19 March 2014) COM(2014)158 final/2. 3  General Affairs Council, ‘Conclusions of the Council of the European Union and the member states meeting within the Council on ensuring respect for the rule of law’ (Brussels, 16 December 2014). 4 European Parliament—Committee on Civil Liberties, Justice and Home Affairs, Working Document on Establishment of an EU mechanism on democracy, the rule of law and fundamental rights—Scoreboard on Democracy, Rule of Law and Fundamental rights’ (Strasbourg, 9 February 2016). 5  In both Europes, of the EU and the Council of Europe, these seem to have developed into the holy trinity of constitutionalism. 6  J Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1, 3. 7  ‘[The rule of law is] among the essential pillars upon which any high-quality democracy rests’: G O’Donnell, ‘Why the Rule of Law Matters’ (2004) 4 Journal of Democracy 15, 32. See also M Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 California Law Review 1307: the rule of law is ‘a cornerstone of contemporary constitutional democracy … In the absence of the rule of law, contemporary constitutional democracy would be impossible’.

Rule of Law and EU Constitutionalisation 267 for economic development.8 Rule of law talk has been picked up by lawyers and politicians across Europe as in all Western societies and beyond. References to the concept can be found in many international documents,9 and several international organisations take pride in promoting respect for the rule of law, such as the Council of Europe (CoE), Organization for Security and Co-operation in Europe (OSCE), UN, World Bank, and indeed, the EU. At the same time, ‘the rule of law’ remains an elusive concept, impossible to define and hard to frame as a manageable and operational concept: ‘there is no consensus on what “the rule of law” stands for, even if it is fairly clear what it stands against’,10 namely ‘rule of men’, or the exercise of arbitrary powers. There is agreement, to a large extent, that the concept should contain substantive aspects and should not be restricted to procedures and institutions, and that ‘thicker’ conceptions are to be preferred over ‘thin’ ones. But the closer one gets to the day-today operation of any exercise of public authority ‘on the ground’, so to speak, the harder it becomes to decide which rules and practices pass muster and which do not, as the standards are not fixed, and depend also on the context within which they have to be applied. This is all the more so, since the ‘rule of law’ not only requires norms, rules and institutions, but also a ‘rule of law culture’. The rule of law is a living instrument, a ‘moving target’, an aspiration: societies are constantly evolving, there is a struggle for the acquisition of new rights and the redefinition of the existing ones, and therefore it is almost impossible to achieve a ‘perfect rule of law’.11 These challenges for any meaningful discussion on the rule of law exist also in the context of the EU. Advancing the rule of law, democracy and fundamental rights is, in a sense, one of the ideological building blocks of the European Union and part of its raison d’être.12 As Frans Timmermans, the EU’s first commissioner responsible for the rule of law, recently put it—without using the term ‘rule of law’ but clearly evoking the idea: Our Union is built on a break from the past; on the principle that societies should be free and open, sheltered from arbitrariness and force. This great leap, that is what Europe stands for. All too often, we take all of this for granted.13

8 

See in particular the activities of the World Bank and its rule of law indicator. For example, in the Universal Declaration of Human Rights—‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’—and in the European Convention of Human Rights— ‘the governments of European countries … have a common heritage of political tradition, ideals, ­freedom and the rule of law’. 10  Rosenfeld (n 7) 1308. 11  O’Donnell (n 7) 15, 43. See also TAO Endicott, ‘The Impossibility of the Rule of Law’ (1999) 19 Oxford Journal of Legal Studies 1: ‘The rule of law is unattainable. Communities never achieve it completely’. 12 On Europe’s raison d’être, see G de Búrca, ‘Europe’s Raison d’être’ in D Kochenov and F Amtenbrink (eds), The European Union’s Shaping of the International Legal Order (Cambridge, Cambridge University Press, 2013) 21. 13  Speech by F Timmermans in EP, 12 February 2015. 9 

268  Monica Claes and Matteo Bonelli In current EU law, the central role of the rule of law is acknowledged in several ways. Respect for the rule of law is one of the founding values of the Union according to Article 2 Treaty on European Union (TEU); it is a condition for accession of candidate countries (Article 49 TEU); safeguarding the values of the Union and the consolidation of the rule of law internally and in third countries is a foreign policy objective, as laid down in Article 21 TEU, and there are numerous references to the rule of law in the Preamble of the Treaties and of the EU Charter of Fundamental Rights.14 In a 1986 decision, Les Verts, the European Court of Justice famously referred to the European Community as ‘a community based on the rule of law’ to the extent that neither the Member States nor the Community institutions could avoid review of the conformity of their acts with the Community’s ‘constitutional charter, the EC Treaty’, a statement which it has repeated many times since.15 Nevertheless, the concrete implementation of the rule of law in the EU poses a number of challenges, in addition to the more general problems described above. The EU builds on different traditions relating to the concept of the rule of law (rule of law, rechtstaat, état de droit and so on).16 Furthermore, the EU is an unusual legal and political entity, very different from the nation-States in the context of which the concept of the rule of law has traditionally been shaped. There is therefore a problem with translating the concept in a non-State context, especially for the legal traditions—such as the German and the French ones—in which the term itself refers to ‘the State’, even if it seems that the Union’s understanding and judicial reliance on the rule of law and the functions assigned to it largely reflect national constitutional experiences in Europe.17 There is, ultimately, no generally agreed definition of what ‘the rule of law’ actually is and what it requires in concrete cases in the context of the EU, neither in the treaties nor in other EU documents and guidelines, comparable to those elaborated by the Venice Commission of the Council of Europe.18 Nor is it clear which concrete obligations it imposes on the Union, on its institutions, or on its Member States. The EU therefore faces even more difficulties than other actors at national or international level in making the rule of law operational and applying it on the ground, in specific cases. However, this complexity does not make the concept any less crucial for the Union and its Member States: it makes the debate

14 

Pech (n 1) 359–96. Case 294/83 Les Verts v Parliament [1986] ECR 1339, [23]. The concept had been present in EU law before, see eg G Bebr, Rule of Law within the European Communities (Brussels, Institut d’Études Europeenes de l’Universite Libre de Bruxelles, 1965) and Lord M Stuart, The European Communities and the Rule of Law (London, Stevens & Son, 1977). See also Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat [2008] ECR I-6351, [281]. 16  See generally M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) ch 11: ‘Rechtsstaat, Rule of Law, l‘Etat de droit’ and Pech (n 1) 359–96. 17  See Pech (n 1) at 362. 18  European Commission for Democracy through Law (Venice Commission), ‘Rule of Law Checklist’, Strasbourg, 18 March 2016, CDL-AD(2016)007. 15 

Rule of Law and EU Constitutionalisation 269 on the mechanisms that should be in place to guarantee respect for the principle at all levels even more urgent. Moreover, it does not diminish the importance that the concept has played, and still plays, in the process of the constitutionalisation of the European Union.

III.  RULE OF LAW AND THE PROCESS OF THE CONSTITUTIONALISATION OF THE EUROPEAN UNION

As seen above, the ‘rule of law’ is one of the foundational values on which the EU is built and which its Member States have in common. The concept is also often used in connection with other constitutional principles, such as democracy and respect for human or fundamental rights: it is not a stand-alone principle but is always connected with other values of constitutionalism. It is no wonder then, that the concept of the rule of law has played a crucial part in the narrative of the constitutionalisation of Europe. The idea of the ‘constitutionalisation’ of the European Union, in turn, is complex and multi-faceted. There are several different yet related dimensions to this process. To organise the discussion, three dimensions will be distinguished here. They coincide roughly with three phases in the constitutionalisation process, be it that while these phases may have clear beginnings, they do not end. Rather than consecutive periods in the process, they represent distinct layers that, so to say, stratify, and consolidate and reinforce the underlying layers. Along the process, the constitutional concept acquires a thicker meaning, from a purely hierarchical idea of higher law, to a thicker and value-laden idea of government limited by law, and from operating at the EU level only as between EU institutions, to encompassing the various components of Europe’s composite constitution, and binding also national actors. The first dimension of the constitutionalisation process refers to the ­‘transformation’ of the Community legal order into a federal-type structure, in which Member State obedience to ‘higher’ EU law and its effectiveness in the domestic legal order is central. The second dimension adds to this the injection of constitutional values in EU law and governance, mainly in the relations between the EU institutions. The third dimension, which is at the core of the current debate, focuses the attention on the Member States, which are an integral part of the EU Constitution understood in its broadest sense. Their compliance with constitutional values is now considered essential for ensuring that constitutional values are respected by the Union as a whole. In the context of these three dimensions, the concept of rule of law operates in three distinct senses. The concept ‘thickens’, to become more value laden, and to be taken more seriously as a value that should inform the exercise of EU and national public authority. These three senses will be discussed in turn.

270  Monica Claes and Matteo Bonelli A.  The Rule of EU Law The first chapter of the constitutionalisation narrative refers to the ‘­transformation’ of the Community legal order from a traditional international organisation into a ‘federal-type structure’.19 This is the story of the ‘constitutionalisation of Europe’ as it has been told by, among others, Eric Stein, Federico Mancini and Joseph Weiler. European Community law was transformed into higher law, to be applied and enforced uniformly and effectively in the domestic legal orders of the Member States.20 The process was mainly driven by the Court of Justice, starting with the affirmation of the principle of direct effect in Van Gend en Loos21 and of primacy in Costa,22 and then developed throughout the years. Fuller accounts of this story also include the acceptance of this transformation by the national courts. While the Court has never used the term ‘rule of law’ or ‘rule of EU law’ in this context, the process has been read as ‘the making of an international rule of law in Europe’:23 the doctrines of direct effect and primacy allowed individuals to enforce Member States’ EU obligations before national courts, which would ­protect the rights of individuals.24 More generally, the idea of the EC as a ‘Community of law’, a Rechtsgemeinschaft to use the expression coined by the first President of the Commission Walter Hallstein,25 has been a crucial paradigm for many

19  See JHH Weiler, ‘The Transformation of Europe’ (1991) 8 The Yale Law Journal 100, Symposium: International law, 2403–83. 20  See E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1; F Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 595; Weiler, ibid. 21  Case 26/62 Van Gend en Loos [1963] ECR 1. 22  Case 6/64 Costa v ENEL [1964] ECR 585. 23  K Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2003) 28: ‘There is a European rule of law where European law, as interpreted by the ECJ, is respected by national governments, and violations of European law are caught and rectified. This rule of law extends to the wider political process, with national governments avoiding policies in conflict with European law’. 24  In particular, this approach promoted legal certainty for individuals, ‘enabling them to rely on the commitments given by the Member States when they signed the Treaties’, see A Arnull, ‘The Rule of Law in the European Union’ in A Arnull and D Wincott, Accountability and Legitimacy in the European Union (Oxford, Oxford University Press, 2003) 246. 25  Speech of W Hallstein at the University of Padua in March 1962, as reported by T von Danwitz, ‘The Rule of Law in the Recent Jurisprudence of the ECJ’ (2014) 37 Fordham International Law Journal 1312, 1313: ‘The European Economic Community is a community of law …, because it serves to realize the idea of law. The founding treaty, which may not be terminated, forms a kind of a Constitution for the Community which contains rules on the establishment, composition, tasks, competences and interaction of the institutions of the Community as well as their relations with the Member States and the Community citizens … But Community law not only grants powers to the Commission and the Council; at the same time, it provides for the restriction and limitation of these powers. The observance of these limits is ensured by the judicial review, which is entrusted to the European Court of Justice. The Court reviews the legality of acts of the Council and the Commission and provides legal protection in the field of Community law not only for Member States but also for Community citizens’.

Rule of Law and EU Constitutionalisation 271 generations of EU lawyers to frame European integration as ‘Integration-­throughLaw’ in which law was both the object and the agent of integration.26 So, while at the origins the European space was characterised by weak legal and judicial mechanisms and had a poor record of compliance, today, the Court of Justice of the European Union (CJEU) and national courts together ensure the effective ‘rule of EU law’ in the whole Union (or so we are told). Aspects of a ‘thicker’ understanding of the rule of law are certainly included in this case law: Van Gend en Loos and Costa v ENEL have been read as putting the individual at the centre and protecting him or her against the defective State; cases like Johnston and von Colson and Kamann illustrate the concern for the individual’s right of access to a court with jurisdiction to review state compliance with EU law and award effective remedies. But on the whole, the rule of law concept used in this narrative is fairly thin, and hardly makes any reference to substantive constitutional values. It is concerned mainly with structuring the relationship between the EU and its Member States, with their obedience to EU law and the effective enforcement thereof, for which even national constitutional values need to yield: if European integration was to work, Member States would have to comply with European law as they comply with domestic law before the national courts. It has no moral appeal, no connection to other fundamental principles such as democracy or fundamental rights protection.27 In this sense, there is something deeply disturbing in the promotion of the ‘rule of EU law’, as it can disrupt the rule of law (and other values of constitutionalism) domestically. This is one of the reasons why many constitutional and highest courts were reluctant to go along with it, and why the Court of Justice developed its ‘fundamental rights as general principles of EU law’ jurisprudence.

B.  The Rule of Law at the EU Level A second layer of the constitutionalisation narrative relates to increasing awareness that the EU itself needs to comply with the basic, substantive values of constitutionalism: democracy, fundamental rights protection and, indeed, the rule of law. It builds on the previous layer: EU law cannot claim obedience, and neither can it be justified, if EU law itself does not emanate from a legal system embedded in some way in the values of constitutionalism. For what concerns fundamental rights protection, the roots of this development can be traced back to the first decades of European integration, when the European Court of Justice (ECJ) in the absence of a bill of rights, or any specific instrument at the European level,

26  M Cappelletti, M Seccombe and J Weiler (eds), Integration Through Law: Europe and the American Federal Experience (New York, Walter de Gruyter and Co, 1986). 27  For a critical appraisal see A Williams, The Ethos of Europe. Values, Law and Justice in the EU (Cambridge, Cambridge University Press, 2010) ch 3.

272  Monica Claes and Matteo Bonelli affirmed that ‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice’.28 The protection of fundamental rights at Union level further developed in the following years, but it was only with the Treaty of Nice that the Union created a written bill of rights—the Charter of Fundamental Rights—which then became legally binding after the entry into force of the Lisbon Treaty. The democratic credentials of the EU remain problematic, but are high on the agenda of the Member States each time the treaties are amended. Space precludes a careful analysis of this aspect of the constitutionalisation of the EU. The ‘rule of law’ entered the ECJ case law in the Les Verts case of 1986, which is often seen as the ‘culmination of the constitutionalisation process’, because the Court finally used the constitutional concept.29 The Court here injects elements of the rule of law in what could be termed the internal constitution of the Union. Indeed, in contrast to Van Gend en Loos, Costa v ENEL and the other landmark cases of the first phase of the constitutionalisation process, Les Verts was not concerned with the relationship between the national and European legal orders or the effectiveness of EU law, but with the compliance of the EU and its institutions with the values of constitutionalism, more specifically, the rule of law. The judgment concerned key aspects of the principle, namely access to court and judicial review of acts of institutions.30 The ECJ concluded that: [T]he European Economic Community is 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 … The Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions.31

It was the first time that the term ‘rule of law’ appeared in the case law of the Court of Justice and, at the same time, the first in which the treaties were considered as the ‘basic constitutional charter’ of the Union. The decision has therefore often been considered ‘the culmination of the process of constitutionalisation’. Yet, rather than a ‘culmination’, the decision should be seen as the beginning of a new stage in the process of constitutionalisation, which requires the EU itself to comply. In political discourse, rule of law talk and more broadly the language of constitutionalism took off especially in the early 1990s, after the fall of the Berlin

28 

Case C-11/70 Internationale Handelsgesellschaft [1970] ECR 1125. Case C-294/83 Les Verts v Parliament (n 15). 30 The judgment arrived a few months after the adoption of the Single European Act that ­significantly increased the powers of the European Parliament, but did not amend Art 173 EEC in order to provide for judicial review of its acts. A formal amendment of the provision finally occurred with the Maastricht Treaty, a few years later, in the sense given by the Court. 31  Para 23 of the Les Verts judgment (emphasis added). 29 

Rule of Law and EU Constitutionalisation 273 Wall and the end of the Cold War, and was geared towards the Member States, rather than the EU. There was a renewed need for the expression of a European identity espoused through common values, to which the newcomers would have to adhere.32 In the treaties, ‘rule of law’ discourse and reference to foundational principles first appeared in the Preamble to the Maastricht Treaty, which claimed that the Member States were attached to the principles of ‘liberty, democracy and respect for human rights and fundamental freedoms and the rule of law’, while Article F(2) of the TEU expected the Member States’ systems of government to be founded on ‘the principles of democracy’. The Amsterdam Treaty moved the reference to the foundational principles to the body of the Treaty, to Article 6(1) TEU, a provision that gave the Union a certain ‘mythic constitutional quality’.33 This time, the Union itself was founded on the foundational principles, which were also ­common to the Member States. The provision was expanded and moved up to Article 2 TEU with the Lisbon Treaty. Today, Articles 2 and 6 of the TEU are to express how the values of constitutionalism have permeated the legal order of the European Union.34 Along with the adoption of the Charter as a binding bill of rights, the expression of these foundational values is considered crucial to preserve and enhance the legitimacy of the Union, in a context in which, on the one hand, legitimacy is increasingly contested by the general public,35 and on the other Union action extends well beyond the internal market, to areas where protection of fundamental rights and the rule of law is crucial, such as the Area of Freedom, Security and Justice. The current institutional structure and the functioning of the Union reflect the foundational constitutional principles of democracy, fundamental rights ­protection and rule of law better than was the case in the past. But the Union’s compliance with the values of constitutionalism remains problematic.36 Looking only at the ‘rule of law’ in a strict sense it remains questionable whether the treaties really establish a complete system of legal remedies, as the Court affirmed in

32  See at an earlier stage also the Declaration on European Identity, Copenhagen 1973. For an excellent discussion of the synergies between the process of constitutionalisation and the enlargement process see W Sadurski, Constitutionalism and the Enlargement of Europe (Oxford, Oxford University Press, 2012). 33  See Williams (n 27) 7. 34  Art 6 TEU constitutes the centerpiece of fundamental rights protection at EU level, and recognises the Charter, the ECHR and ‘common constitutional traditions’ as the three official sources of fundamental rights in the EU. 35  See Weiler (n 19) 2417: ‘[human rights] scrutiny is important given the “Democracy Deficit” in Community decision-making’. 36  This leads JHH Weiler to conclude, on the current debate: ‘The moral is not for the Union to shy away from taking robust action, within its competences and jurisdictional limits, to quell gross violations of the Rule of Law in and by some of its Member States. But it should simultaneously hurry up and put its own democratic house in order lest it be reminded that those living in glass houses should be careful when throwing stones’; see JHH Weiler, ‘Part II. Living in a Glass House: Europe, Democracy and the Rule of Law’ in C Closa, D Kochenov and JHH Weiler, Reinforcing Rule of Law Oversight in the European Union (RSCAS WP, 2014/25).

274  Monica Claes and Matteo Bonelli Les Verts and on numerous occasions since. A ‘complete system’ would require that sufficient legal remedies and procedures are available before Union and/or national courts in order to ensure judicial review of all the acts of EU institutions. This is still not always the case today. As far as access of individuals to court is concerned—today a fundamental right protected by the Charter37—the Treaty of ­Lisbon has not fully solved the existing issues:38 the criteria of Article 263(4) Treaty on the Functioning of the European Union (TFEU) regulating access to court for natural and legal persons, have been only partially softened in order to make it easier for individuals to bring their cases before the Court of Justice.39 Another problematic area is the former second pillar on Common Foreign and Security Policy (CFSP): acts adopted by the EU are largely excluded from the jurisdiction of the Court, with only two exceptions: review of the legality of decisions providing for restrictive measures against natural or legal persons (Article 275(2) TFEU) and of the delimitation of competences between CFSP and other external policies according to Article 40 TEU.40 Moreover, there is no external review of fundamental rights by an independent actor: the process of accession to the ­European Convention on Human Rights (ECHR)—an obligation for the EU under ­Article 6(2) TEU—has been stopped by the negative opinion of the Court of Justice in December 2014.41 An analysis of the EU’s performance under the thicker understanding of rule of law, informed by other constitutional values, including fundamental rights protection and democracy, would demonstrate even greater deficiencies. Think, for instance, of the Court of Justice’s reluctance to enforce compliance with fundamental rights standards against EU legislation or its positing of mutual trust as a constitutional premise in Opinion 2/13. Compliance with the rule of law in its fullest sense remains the greatest challenge for the EU (as it is for any other polity).

C.  The Rule of Law in the Member States Finally, there is a third dimension linking rule of law and the process of constitutionalisation of the EU. The starting point here is that the Union as a whole, including both EU institutions and the Member States, must comply with the

37  Art 47 CFR: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal’. 38  See eg cases: Case C-50/00 P Union de Pequeños Agricultores v Council [2002] ECR-6677; and Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425. 39  In particular, the criterion of ‘individual concern’, often problematic to satisfy, has been abolished only for what concerns regulatory acts that entail no implementing measures, but remains in place for all other cases. 40  On a more positive note, the Lisbon Treaty put the former third pillar completely under the jurisdiction of the CJEU. 41  Opinion 2/13 on the Draft Agreement on the Accession of the EU to the European Convention of Human Rights [2014] ECLI:EU:C:2014:24.

Rule of Law and EU Constitutionalisation 275 principles of constitutionalism. The focus is on respect for the rule of law (and the other foundational principles) in the Member States, and on the mechanisms that EU institutions possess to monitor and enforce Member State compliance with EU obligations. The importance of this third dimension for the quality of rule of law in the EU has come to the fore more recently, in particular since the 1990s. The absence of the language of constitutionalism in the original treaty ­framework can be explained by three main elements: firstly, the European Coal and Steel Community (ECSC) and later the European Economic Community (EEC) were created as economic organisations, and seemed much less concerned with values, rights and the rule of law.42 Secondly, there was an unofficial division of tasks between the European Communities and the Council of Europe, which is entrusted to verify compliance with such values and in the context of which the ECHR and its court were established. Finally, it was assumed that the six members of the Communities were ‘like-minded nations’ that would comply with the principles, because at the moment of the creation of the EEC they all already had in place established systems of protection of fundamental values (or at least they were so presumed): the homogeneity of the original membership raised little concerns in this sense. The issue of the rule of law in the Member States was for the first time touched upon at Community level in the 1970s, parallel to the development of fundamental rights protection in the EEC. In the 1973 Declaration on European Identity, the nine Member States of the Communities stressed their determination to ‘defend the principles of representative democracy, of the rule of law, of social justice … and of respect for human rights’.43 This was a political declaration that did not have the intention of establishing any monitoring or enforcement mechanism. Enlargement towards the new democracies in the Mediterranean region intensified the debate in the 1980s. Indeed, the main rationale for the speedy accession

42  On the absence of fundamental rights, rule of law and democratic values from the original Treaty framework, see in particular G de Burca, ‘The Road Not Taken: The EU as a Global Human Rights Actor’ (2011) 105(4) American Journal of International Law 649–93. She convincingly demonstrates that the absence of fundamental rights and other constitutional principles and values in the treaties was a conscious choice after the failure of the EPC Treaty, which would have included an obligation for each Member State to respect human rights as they are defined in the ECHR, as well as the right of the Community should be so requested by the constitutional authorities of a Member State, to assist the latter with a view to maintaining the constitutional order, democratic institutions or man’s fundamental liberties; finally if the ‘Community Government’ would establish that, in one Member State, the constitutional order, democratic institutions or man’s fundamental liberties have been seriously violated, without the constitutional authorities of this State being able or wishing to re-establish these, the Community may intervene in place of these authorities until such time as the situation is brought under control. In such a case, the measures taken by the Community Government would be submitted without delay for the approval of the Community Parliament’, see Resolutions adopted by the Study Committee for the European Constitution (Brussels, November 1952), available on www. cvce.eu. These elements were included in the draft EPC Treaty which was shelved after the failure of the EDC in 1954. 43  Declaration on The European Identity published by the Nine Foreign Ministers on 14 December 1973, Copenhagen.

276  Monica Claes and Matteo Bonelli of Greece, Spain and Portugal was political and reflected the intention to endorse the re-emerging democracies and prevent their backsliding into authoritarianism. The 1978 Declaration on Democracy of the Copenhagen European Council provided a list of democratic standards, including respect for the rule of law, which all Member States were expected to observe.44 However, it was in the early 1990s that real change occurred. Firstly, with the Charter of Paris for ‘A New Europe’, adopted outside the EC/EU framework, all European countries committed themselves to protect and promote human rights, democracy and the rule of law.45 Faced with the prospect of enlargement towards Central and Eastern European countries, the Copenhagen European Council of 1993 listed the three criteria that any candidate country had to comply with in order to join the Union. The ‘political’ criterion demanded that they achieve ­‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’.46 Compliance with the rule of law thus for the first time became a formal condition for membership of the Union, and therefore a matter to be dealt with and discussed at the EU level. Nevertheless, the criteria and benchmarks remained vague and indeterminate, to the benefit of the Union that could manipulate these terms in negotiations with applicant countries. Only gradually have the criteria become more detailed. Today, rule of law considerations are crucial in two of the chapters of the acquis which form the basis for the accession negotiations: Chapter 23 on Judiciary and Fundamental Rights and Chapter 24 on Justice, Freedom and Security. Nevertheless, the benchmarks are still criticised as providing merely a checklist of institutions and practices, to be ticked off by bureaucrats.47 The following step was the creation with the Treaty of Amsterdam of the mechanism of Article 7 TEU, under which Member States of the Union can be subject to sanctions in cases of ‘a serious and persistent breach … of the values referred to in Article 2’.48 These values of Article 2 are now to be seen as the expression of a shared common commitment to the values of Western liberal democracy of the Union and its Member States.49 With the new Article 7 procedure, for the first time an EU Member State could be sanctioned at EU level in cases of violations of the rule of law or other fundamental values. The mechanism of Article 7 was

44  European Council, Conclusions of the Presidency, Copenhagen, 7–8 April 1978. The declaration was couched in general terms as to apply to existing Member States, but was essentially aimed at ­applicant states, in this case the three Mediterranean countries, to prevent regression hazard; see AF Tatham, Enlargement of the European Union (The Hague, Kluwer Law International, 2009) 208. 45  Charter of Paris for ‘A New Europe’, adopted by the Heads of State or Government of the participating States of the Conference on Security and Co-operation in Europe, Paris, 21 November 1990. 46  European Council, Conclusions of the Presidency, Copenhagen, 21–22 June 1993. 47  Critically for instance D Kochenov, EU Enlargement and the Failure of Conditionality in the Fields of Democracy and the Rule of Law (The Hague, Kluwer Law International, 2008). 48  The original version of Art 7 TEU contained the term ‘principles’ instead of ‘values’, and those were listed in Art 6 of the TEU. 49  T Tridimas, The General Principles of EU Law (Oxford, OUP, 2006).

Rule of Law and EU Constitutionalisation 277 then ­further adapted in Nice, with the introduction of the ‘preventive mechanism’ which can be found today in Article 7(1).50 Other, more specialised mechanisms have been set up to deal with monitoring and evaluation. In the context of Justice and Home Affairs (JHA) cooperation, an evaluation system was set up in 1998, based on a Joint Action and aimed specifically at the candidate countries.51 The collective evaluation under the Joint Action focused on five issues, which are directly related to the rule of law: independence of the judiciary, efficiency of justice and organisation of the judicial system, quality of personnel, access to justice and respect of underlying guarantees and the fight against corruption. More broadly, on the basis of a 1997 Joint Action mutual evaluations are held on the basis of peer reviews, conducted by teams of experts from the Member States and from EU institutions and agencies. The General Secretariat of the Council ensures the coordination and organisation of the evaluations. Member States are invited to communicate all measures adopted to fulfil the recommendations addressed by the report. Evaluation and monitoring is also included in much of the legislative framework in JHA and applicable to all Member States, even though here the main interest seems to lie in the compliance with EU law, rather than with the common principles and values of constitutionalism. The need for additional forms of evaluation and monitoring in order to reinforce mutual trust in these areas has regularly been emphasised by various actors including the Commission, in the context of specific legislative proposals and discussions of the principle of mutual recognition generally.52 The 2005 Hague Programme and Action Plan repeated the need for an impartial evaluation of the quality of justice with a view to reinforcing mutual trust. The Commission proposed to set up a coherent and comprehensive mechanism for evaluation of EU policies on freedom, security and justice, ‘in a spirit of partnership with Member States and EU institutions’.53 However, the Member States opposed the plan and the idea was shelved. Peer review and evaluation mechanisms have nevertheless found their way into the treaties, and are now provided for in Article 70 TFEU.54 50  The necessity to introduce a preventive mechanism in addition to the sanctioning procedure emerged after the ‘Haider affair’ of 1999–2000: see eg W Sadurski, ‘Adding a Bite to a Bark? A Story of Article 7, the EU Enlargement, and Jörg Haider’ (2010) 16 Columbia Journal of European Law. 51  Joint action of 29 June 1998 adopted by the Council on the basis of Art K.3 of the Treaty on European Union, establishing a mechanism for collective evaluation of the enactment, application and effective implementation by the applicant countries of the acquis of the European Union in the field of Justice and Home Affairs (OJC no L 191 of 07/07/1998, p 0008–0009) (98/429/JHA). 52  See J Morijn, ‘Background Study Monitoring and Evaluation Mechanisms within the Scope of EU Judicial Cooperation in Criminal Matters’ in M Dane and A Klip (eds), An Additional ­Evaluation Mechanism in the Field of EU Judicial Cooperation in Criminal Matters to Strengthen Mutual Trust ­(Tilburg, Celsus legal publishers, 2009) 92–93. 53  Communication from the Commission to the Council and the European Parliament, Evaluation of EU Policies on Freedom, Security and Justice COM(2006) 332 final. 54  For a general discussion see S Andersen, ‘Non-Binding Peer Evaluation within an Area of Freedom, Security and Justice’ in R Holzhacker and P Luif, Freedom, Security and Justice in the European Union. Internal and External Dimensions of Increased Cooperation after the Lisbon Treaty (New York/ Heidelberg, Springer, 2014) 29.

278  Monica Claes and Matteo Bonelli More generally, a Fundamental Rights Agency (FRA) was established in 2007 with the task of collecting data on fundamental rights, publishing opinions and annual or thematic reports. However, and again as a consequence of Member State reluctance, its activity is limited to fundamental rights issues in the EU and in the Member States only when they are implementing EU law.55 As a consequence, the FRA does not play any role in the Article 7 mechanisms. In this respect, the mandate of the Agency is more limited than that of the ‘Network of Independent Experts of Fundamental Rights’ set up in 2002 and discontinued after the creation of the FRA. The Network did monitor respect of fundamental rights by the Member States in all their fields of activity, beyond the scope of application of EU law, and this broader mandate was explained with the need to ‘facilitate the exercise by the institutions of their constitutional functions’ under Article 7 TEU.56 Moreover, according to the Treaty of Nice, in the Article 7 mechanism the Council could ‘call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question’, but this possibility has been removed by the Lisbon Treaty, and no references to the FRA have been included. Additional mechanisms have been launched recently. Geared only to Bulgaria and Romania, a Cooperation and Verification Mechanism (CVM) is in place. Since both countries still suffered several problems in the fields of judicial reform, corruption and organised crime when they joined the Union, the Commission established the CVM in order to address their shortcomings, formulating clear benchmarks and assessing their progresses regularly.57 In 2013, the Commission presented the first EU Justice Scoreboard, an ‘information tool aiming to assist the EU and Member States to achieve more effective justice by providing objective, reliable and comparable data on the quality, independence and efficiency of civil, commercial and administrative justice systems in all Member States’.58 According to the Commission: [T]he information feeds the European Semester, the EU annual economic policy coordination. Together with individual country assessments, the EU Justice Scoreboard contributes to identify possible shortcomings and to encourage Member States to carry out, where necessary, structural reforms in the area of justice.59

55  See Art 3 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights. 56  O De Schutter and P Alston, ‘Addressing the Challenges Confronting the EU Fundamental Rights Agency’ in P Alton and O De Schutter, Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency (Oxford, Hart Publishing, 2005) 6–8. The authors underline how this was ‘one of the most important functions fulfilled by the Network of independent experts’. 57  On CVM and its possible effects on the current crises see eg AB Spendzharova and MA ­Vachudova, ‘Catching Up? Consolidating Liberal Democracy in Bulgaria and Romania after EU Accession’ (2012) 35(1) West European Politics 39–58; U Sedelmeier, ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after accession’ (2014) 52(1) Journal of Common Market Studies 105–21. 58  See EU Justice Scoreboard: http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm. 59  European Commission—Press release, ‘2015 EU Justice Scoreboard: supporting Member States to improve their justice systems’ effectiveness’, Brussels, 9 March 2015, IP/15/4575.

Rule of Law and EU Constitutionalisation 279 The origins of the Justice Scoreboard are not so much concerns for the rule of law or fundamental rights per se, but the smooth operation of the internal market and generally the necessity to restore economic growth in the EU. The Commission collaborates closely with the European Commission for the Efficiency of Justice (CEPEJ) and the European Networks of Councils for the Judiciary (ENCJ) to collect the data needed for the exercise. In 2014 the first EU Anti-Corruption Report was presented: the Commission aims to present a clear picture of the situation in each Member State for what concerns measures in place to combat corruption, the most problematic issues, policies that are working and areas that could be improved.60 More generally, rule of law concerns feed into EU legislation, and are aimed at ensuring that Member States respect the requirements of the rule of law when acting as agents for the Union. Examples include the insistence on effective ­remedies,61 access to court and the independence of supervisory authorities. Thus, Article 39 of the Asylum Procedures Directive states that the Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against certain decisions.62 The EU rules on data protection require Member States to establish a supervisory body to monitor the application of the Directive acting in complete independence.63

IV.  ENFORCING THE RULE OF LAW IN THE EU MEMBER STATES: THE DILEMMA

Nevertheless, and despite the creation of these mechanisms, critical situations have emerged in the last years with the rule of law in several Member States. Hungary has been considered the most problematic case: the new Fundamental Law of 2011, its accompanying legislative package and the many amendments since have been debated in the European Parliament,64 and widely criticised by

60 EU Anti-Corruption Report: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ organized-crime-and-human-trafficking/corruption/anti-corruption-report/index_en.htm. 61 See eg Art 6 of Directive 76/207 which functioned as the cue for the ECJ in Johnston: Case C-222/84 Johnston [1986] ECR 1651. 62  See generally, A Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Oxford, Hart Publishing, 2014). 63  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p 31) and see Case C-518/07 Commission v Germany [2010] ECR I-1885. See also Art 16 TFEU and Art 8 EU Charter. 64  European Parliament, ‘Resolution on the Revised Hungarian Constitution’ (Strasbourg, 5 July 2011) P7_TA(2011)0315, and ‘Report on the situation of fundamental rights: standards and practices in Hungary’ (Brussels 25 June 2013) A7-0229/2013 (the so-called ‘Tavares Report’); European ­Commission, ‘The European Commission reiterates its serious concerns over the Fourth Amendment to the Constitution of Hungary’ Press Release (Brussels, 12 April 2013) IP/13/327.

280  Monica Claes and Matteo Bonelli the EU Commission, as well as CoE institutions,65 and several other international bodies and national governments. More recently, EU institutions and experts have focused their attention on the situation of the Constitutional Tribunal in Poland. In the midst of a dispute over the composition of the Tribunal, the new Government attempted a far-reaching reform of the law regulating the functioning of the Tribunal.66 The latter declared the amendments unconstitutional, but the government has so far refused to publish the judgment and comply with it.67 But concerns have also been voiced about other Member States such as France— concerning the treatment of EU Roma citizens,68 Italy—where media pluralism and corruption remain problematic69 and Romania—where in the summer of 2012 a constitutional conflict emerged between the president and the prime minister.70 These situations make the issue of the role of the EU in the monitoring and enforcement of Member State compliance with the rule of law extremely pertinent and urgent. Two types of situations should be distinguished here. First, when Member States act within the scope of EU law (‘in the implementation of EU law’ in EU Charter parlance), it is clear that they must comply with all obligations of EU law and higher principles of EU law, including the Charter and the principles of the rule of law.71 The traditional enforcement mechanisms are available, in particular the infringement procedure of Article 258 TFEU.72 In this first type of case, 65  See European Commission for Democracy Through Law (Venice Commission), ‘Opinion on the new Constitution of Hungary’ adopted by the Venice Commission at its 87th Plenary Session (17–18 June 2011) CDL-AD(2011)016-e and ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’ (17 June 2013) Opinion 720/2013, CDL-AD(2013)012. The Venice Commission has ­criticised in particular the constitution-making process, ‘affected by lack of transparency, shortcomings in the dialogue between the majority and the opposition, insufficient opportunities for an adequate public debate, and a very tight timeframe’, the number of matters relegated to cardinal laws, the limitation of powers of the Constitutional Court, the vagueness of provisions on the judiciary system, aspects of fundamental rights protection and of the controversial Preamble to the Constitution. 66  See Act of 22 December 2015 amending the Constitutional Tribunal Act, K47/15. 67 For a more complete discussion of the situation, see Venice Commission, Opinion Act of 22 December 2015 amending the Constitutional Tribunal Act, Venice, 11 March 2016, CDLAD(2016)001-e. 68  See eg M Dawson and E Muir, ‘Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48(3) Common Market Law Review 751–75. 69  See eg World Justice Project 2014 Indicators. 70 The crisis was discussed both at EU level—see eg European Commission, ‘Commission’s ­reaction to the Romanian Constitutional Court’s decision on 29/07 referendum’ (Brussels, 21 August 2012) MEMO/12/626—and in the CoE—see Venice Commission, Opinion 685 / 2012 (Strasbourg, 17 December 2012) CDL-AD(2012)026. 71  Art 51 of the Charter indeed limits its scope of application: ‘The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ On the meaning and implications of Art 51 of the Charter, see eg A Ward, ‘Article 51’ in S Peers, T Harvey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: a Commentary (Oxford, Hart Publishing, 2014); K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review; Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECR-00000. 72 One of the issues the Commission selected as problematic in the 2011–2012 Hungarian ­constitutional and legislative package, was the position of the President of the National Judicial Office

Rule of Law and EU Constitutionalisation 281 the Commission can open infringement proceedings and bring a State before the CJEU, but only for specific violations of concrete EU law obligations: the procedure therefore is not particularly fit to challenge systemic deficiencies or a general deterioration of the rule of law system in a Member State.73 The situation is even more critical in the second type of situation, where Member States act outside the scope of EU law. In those cases, EU law does not apply and there are no clear standards and obligations imposed on the Member States. The only exception is Article 2 TEU, which applies across the board, even outside the scope of EU law: the values set out in that provision are common to the EU and its Member States, and must be attained and sustained by the Member States in general, even when they are acting outside the scope of EU law.74 Yet, in these cases, the infringement procedure cannot be used to enforce compliance: Article 2 TEU comes with the lex specialis of Article 7 TEU. In other words, the Commission cannot open enforcement actions for a violation of Article 2 TEU. The appropriate mechanism for the enforcement of Article 2 TEU is the procedure of Article 7. The soft law mechanisms outlined above can only provide information and measure performances in specific areas, but they do not contain any enforcing instrument. What remains are, on the one hand, diplomatic means and political pressure, and on the other the ‘nuclear’ option of Article 7 TEU. The latter has the advantage of extending to all areas of actions of the Member States, but it has very high thresholds attached to it, both procedural—it requires unanimity of the Member States in the European Council to apply sanctions—and substantive—it can be applied only when there is a ‘serious and persistent breach’ of the funding values or, for what concerns the preventive mechanisms, when there is a ‘clear risk of a serious breach’. It is not surprising, therefore, that current EU mechanisms have been considered insufficient to tackle this situation, and that several reform proposals have been advanced, both by institutional actors and in academia.

and her powers to designate a court in a given case and the transfer of judges without consent. In its administrative letter addressed to the Hungarian Government, the Commission sought clarifications about the independence of the country’s judiciary. The Commission raised concerns with regard to potentially systemic deficiencies in Hungary’s justice system and reminded Hungary that national courts act as ‘Union courts’ whenever they apply EU law, and therefore need to satisfy minimum standards of independence and effective judicial redress, see MEMO/12/165. However, given the response of the Hungarian Government and changes made to the system, the Commission decided not to pursue this further, see MEMO/12/165. 73  KL Scheppele has proposed that the Commission could bring together different violations in a ‘systemic infringement action’ in this type of case: see ‘What Can the European Commission Do When Member States Violate Basic Principles of the European Union? The Case for Systemic Infringement Actions’ (2013) available at: http://ec.europa.eu/justice/events/assises-justice-2013/files/contributions/45.princetonuniversityscheppelesystemicinfringementactionbrusselsversion_en.pdf. See also the Report of the Dutch Advisory Council on International Matters, ‘The Rule of Law. Safeguarding for European Citizens and Foundation of European Cooperation’ AIV, no 87. 74  See also A von Bogdandy and M Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What has been Done, What can be Done’ (2014) 51 CML Rev 59–96.

282  Monica Claes and Matteo Bonelli V.  THE RESPONSIBILITY TO GUARANTEE THE RULE OF LAW IN THE MEMBER STATES: FROM INSTITUTIONAL STRUGGLE TO INSTITUTIONAL COOPERATION?

In respect of the problematic features outlined above, the debate on the rule of law in the Union today focuses on the issue of the monitoring and enforcement of Member States’ rule of law compliance. It is to this specific issue that recent efforts of EU institutions and of the Member States have been directed. The debate has intensified in particular in the context of the political and constitutional situation in Hungary, and later in Poland. It is in this context also that Member State compliance with fundamental values was framed mainly as a rule-of-law-problem, while it is in fact much broader, and concerns compliance with all foundational values listed in Article 2 TEU. Calls have been made for new mechanisms to sustain the rule of law or more generally, the fundamental values of the Union. Two issues were central in the debate: whether a new mechanism was at all called for and if so, who should be responsible: should a new institution, such as a ‘Copenhagen Commission’, be set up?75 Or should it rather be the FRA or the Commission? At first, institutions struggled to coordinate their efforts. A host of actors, institutions and organisations were involved in the discussion claiming a role, and initiatives often overlapped in the absence of a clear strategy. In 2016, however, cooperation between EU institutions, and between the EU and the CoE, has considerably improved. A first proposal for a new mechanism originated from the Foreign Affairs ­Ministers of Denmark, Finland, Germany and the Netherlands. In their 2013 letter to the EU institutions they urged the Commission to introduce a ‘new and more effective mechanism to safeguard fundamental values in the Member States’.76 The European Parliament in its ‘Tavares Report’ on the situation of fundamental rights in Hungary proposed the creation of a new mechanism for monitoring compliance with the fundamental values involving independent experts that could make recommendations on how to respond to violations.77 Later, the EP commissioned a series of studies for the establishment of an EU Values Scoreboard.

75  See in particular J-W Muller, ‘Safeguarding Democracy inside the EU. Brussels and the Future of Liberal Order’ (2013) Transatlantic Academy 2012–2013 Paper Series 3 and ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal 2. 76  Letter of four Ministers of Foreign Affairs to President of the Commission, 6 March 2013: www. rijksoverheid.nl/bestanden/documenten-en-publicaties/brieven/2013/03/13/brief-aaneuropese-­ commissie-over-opzetten-rechtsstatelijkheidsmechanisme/brief-aan-europese-commissieoveropzetten-rechtsstatelijkheidsmechanisme.pdf. The Dutch Government commissioned an advisory report from its Advisory Council on International Affairs (AIV) on the functioning on the rule of law in the Member States of the European Union in order to come up with a more complete proposal. Advisory Council of International Affairs, ‘The Rule of Law—Safeguard for European Citizens and Foundation for European Cooperation’ (2014) available at: http://aiv-advies.nl/6d4/publications/advisory-reports/ the-rule-of-law-safeguard-for-european-citizens-and-foundation-for-european-cooperation. 77  European Parliament, Report on the situation of fundamental rights: standards and practices in Hungary (Brussels, 25 June 2013) A7-0229/2013 (the so-called ‘Tavares Report’).

Rule of Law and EU Constitutionalisation 283 The Fundamental Rights Agency for its part insisted on the need for monitoring mechanisms and offered its assistance to make better use of data from existing sources; it emphasised the need for cooperation with other bodies and institutions both within and beyond the EU and stressed the importance of engaging organisations such as independent institutions with a human rights remit and national civil society organisations, by opening the floor for national discussions.78 The EP79 and the Council80 urged the Commission to take action and to ‘start a process of inclusive dialogue, debate and engagement’ with Member States, other institutions and stakeholders.81 After the 2013 State of Union speech by President Barroso, expressing the idea of ‘building a bridge between political persuasion and targeted infringement procedures on the one hand, and … article 7 of the Treaty’,82 the Commission launched a process of consultation concluded in March 2014 with the adoption of ‘A new framework to strengthen the rule of law’.83 This framework aims to address systemic threats to the rule of law and it is meant to ‘fill the gap’ in the sense indicated by Barroso.84 It does not replace any of the existing mechanisms, but specifies them, in particular explaining the procedure under which the Commission can present a ‘reasoned proposal’ to the Council or the European Council for the application of the mechanisms of Article 7.85 The 78  ‘Promoting the rule of law in the European Union’ FRA Symposium Report, available at: http:// fra.europa.eu/en/news/2013/fra-symposium-report-feeds-council-discussions-rule-law. See also FRA, ‘Opinion of the European Union Agency for Fundamental Rights on the development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in Article 2 TEU based on existing sources of information’, Vienna, 8 April 2016, FRA Opinion 2/16. 79  See the Recommendations contained in the ‘Tavares Report’ at 69–70. 80  Justice and Home Affairs Council, Council conclusions on fundamental rights and Rule of Law and on the Commission 2012 Report on the Application of the Charter of Fundamental Rights of the European Union (Luxembourg, 6 and 7 June 2013). 81  ibid, at 10. 82  See JM Barroso, ‘State of the Union 2013’ (Brussels, 11 September 2013) SPEECH/13/684 and also V Reding, ‘The EU and the Rule of Law: What Next?’ Speech at Centre for European Policy Studies (Brussels, 4 September 2013) SPEECH/13/677, in which she referred to the ‘need for a better developed set of instruments that would fill the space that exists at present between the Commission’s infringement role as guardian of the Treaties, and the article 7 procedure’. 83 European Commission, Communication from the Commission to the European Parliament and the Council, ‘A new EU Framework to strengthen the Rule of Law’ (Brussels, 19 March 2014) COM(2014)158 final/2. 84  It does not, therefore, address issues of individual and specific violations of fundamental rights or the rule of law, which should be dealt at the national level and eventually by the CJEU, if the matter falls within the scope of EU law and the right is protected by the Charter, or by the European Court of Human Rights. Systemic deficiencies threaten the ‘political, institutional and/or legal order of a ­Member State … its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its system of judicial review.’ On the concept of systemic deficiencies, reference is made to the NS case (Joined Cases C-411/10 and 493/10 NS [2011] ECR I-13905 and Case C-4/11 Germany v Kaveh Puid [2013] ECLI:EU:C:2013:740. See also Von Bogdandy and Ioannidis (n 74). 85  In particular, it does not prevent the power of the Commission to start an infringement procedure against the Member State concerned under Art 258 TFEU. However, since the framework itself is based on dialogue with the Member States, to start an infringement procedure, at least in a first phase, would probably not be beneficial. Moreover, it does not prevent recourse to Art 7 TEU when the ­situation is particularly severe or deteriorating quickly.

284  Monica Claes and Matteo Bonelli framework can be activated in cases where there are ‘clear indications’ of a systemic threat to the rule of law. In assessing whether a systemic threat is developing in a Member State, the Commission can collect and evaluate information received from other sources, such as the FRA, the bodies of the Council of Europe— including the Venice Commission—and judicial networks. The initiative to start the procedure remains in any case in the hands of the Commission, although it is possible for citizens, NGOs and stakeholders to bring complaints before it via informal channels. After a preliminary assessment, if the threat to the rule of law is indeed deemed to exist, the Commission will begin a process of dialogue—the central element of the Framework—with the Member State concerned, sending a ‘rule of law ­opinion’. This allows the Commission to express its concerns and give to the Member State the possibility to respond to them in a context of dialogue with the Commission. If the matter is not solved in a satisfactory way, the Commission can then issue a ‘recommendation’ when there is ‘objective evidence’ of the existence of the threat and actions undertaken in the Member State are not sufficient to address it. The Commission can fix a time-limit to solve the issue and indicate in detail what should be done by the Member State. The latter is a positive element because it could help on the one hand to clarify the standards under which performances are evaluated, and on the other it is clearly oriented towards concrete solutions, that can change the situation on the ground. The third and last stage of the procedure is the monitoring of the follow-up to the recommendation by the Member State: dialogue remains possible, but if the outcome is not satisfactory, the Commission would then assess the possibility of activating Article 7. In this respect, the new Framework could make Article 7 ‘less nuclear’: still a measure of last resort, that however could actually be launched in a more legitimate and acceptable way, when the process of dialogue does not lead to the successful resolution of the crisis. Some commentators have welcomed the Framework as a valuable addition to the existing political and legal mechanisms. Others were much more critical, claiming that the Framework was too little too late, or on the contrary, that the Commission seized too much power over issues that are essentially domestic and should be left to the political and legal processes in each of the Member States. The institutional conflict on the mechanisms to protect the rule of law was particularly evident in the reaction of the Council to the rule of law Framework. The Legal Service of the Council concluded that the Commission Framework was not compatible with the principle of conferral and stated that ‘there is no legal basis in the Treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States’.86 Whether this is really the case is questionable, though. Article 7 TEU empowers the Commission to present before the Council a ‘reasoned proposal’ to activate the procedure, and it is in this light that the new Framework should be assessed: it does not create 86 Council of the European Union, Opinion of the Legal Service (Brussels, 27 May 2014) Doc 10296/14.

Rule of Law and EU Constitutionalisation 285 new ­sanctioning powers or a new mechanism, but it specifies what was already in place at EU level, and sets out how the Commission will exercise existing powers. In other words, the new mechanism merely explains the ‘pre-Article 7 process’ and sets out how the Commission will prepare the exercise of its Article 7 competence. What the Commission plans to do along the way according to the Framework does not seem to go beyond its Treaty competences. The position of the Council Legal Service that ‘in essence, … the rule of law applies as a value of the EU in the areas in which the EU has competence and EU monitoring mechanisms are possible to this extent’ does not therefore seem legally correct. Nevertheless, on the basis of a document prepared by the Italian Presidency in November 2014,87 the General Affairs Council presented its conclusions in December of the same year,88 announcing the establishment of a ‘dialogue among all Member States within the Council … based on the principles of objectivity, non-discrimination and equal treatment … conducted on a nonpartisan and ­evidence-based approach … without prejudice to the principle of conferred ­competences, as well as the respect of national identities of the Member States’ under the meaning of Article 4(2) TEU. Moreover, the dialogue should be ­complementary with other EU institutions and international organisations, with the aim to avoid duplications and take into account existing instruments. This dialogue will take place once a year in the General Affairs Council, prepared by the Committee of Permanent Representatives (COREPER), and debates on thematic subjects can be launched. Contrary to the more detailed and innovative initiative of the Commission, the political dialogue introduced by the Council does not essentially change the context in which actors interact. This form of ‘soft dialogue’ between Member States within the Council will very likely not be able to fill the gaps in the existing system in the sense indicated by some Member States and by the Commission and, if considered in isolation from other efforts, can be considered rather disappointing, bearing in mind the pressing need to address the current challenges. To take a real step forward, the Council should have at least clarified the principles mentioned, indicating reliable sources that can provide a ground for objective and evidence-based assessment, or provide some forms of more intensive peer review, for e­ xample identifying key issues to be dealt with by all the Member States.89 87  Council of the European Union, ‘Ensuring Respect for the Rule of Law’ Note from Presidency to Council (Brussels, 14 November 2014) Doc 15206/14: ‘The Council should play a central role in order to contribute to a common understanding on compliance with the rule of law in accordance with the Treaties … the Council aims to encourage the culture of respect for rule of law through a constructive dialogue among the Member States. This could be done by promoting the political dialogue within the Council in respect of the principle of objectivity, non-discrimination, equal treatment, on a nonpartisan and evidence-based approach.’ 88  General Affairs Council, ‘Conclusions of the Council of the European Union and the member states meeting within the Council on ensuring respect for the rule of law’ (Brussels, 16 December 2014). 89  See for example the Report of the Dutch Advisory Council on International Matters, ‘The Rule of Law. Safeguarding for European Citizens and Foundation of European Cooperation’ AIV, no 87.

286  Monica Claes and Matteo Bonelli Elements of institutional struggle could also be found in the relations between the EU and the Council of Europe. In fact, the debate on the rule of law in the EU Member States took place in the Council of Europe as well. Both the Parliamentary Assembly90 and the Committee of Ministers91 underlined the need to ‘avoid duplication and ensure coherence and complementarily between [the EU’s] protection systems and that of the Council of Europe’, and stated that any new EU framework ‘should take into account the instruments and expertise of the Council of Europe and cooperate closely with it’. The Committee of Ministers considered it ­premature to perceive [EU initiatives] as ‘undermining the role of the Council of Europe or of the Convention system in the pan-European human rights architecture’, but dialogue and interaction between the two organisations remained crucial and the EU should regard the CoE as ‘the Europe-wide reference source for human rights’. These first developments seemed to expose a struggle for the responsibility in safeguarding the rule of law in the Member States. Each institution came up with its own proposals, often claiming further powers for itself, but without ensuring coordination with other institutions and other mechanisms. This has caused tensions, as has been the case between the Commission and the Council when the Commission issued its Framework, and between the European Union and the Council of Europe. Such a clash over the rule of law can however hardly be considered beneficial for the situation on the ground. When the EU was faced with another rule of law crisis in Poland, its institutions finally realised that safeguarding the values requires a more concerted effort, and acted accordingly. The Commission activated for the first time its rule of law Framework in January 2016.92 Despite the earlier negative opinion of the Legal Service, the Council did not oppose the move, but rather supported it. The Dutch Presidency of the Council called for an open discussion of the rule of law problems in Poland, and seemed to endorse informally the action of the Commission.93 The European Parliament welcomed the initiative of the Commission, hosting a plenary debate to discuss the situation with the participation of Commission Vice-President Frans Timmermans and Polish Prime Minister Beata Syzdlo. The debate led to the adoption of an EP Resolution, which ‘supports the

90  CoE Parliamentary Assembly Recommendation 2027 (2013), ‘European Union and Council of Europe Human Rights Agendas: Synergies not Duplication!’ (Strasbourg, 2 October 2013) D.13321. See in particular the Explanatory memorandum of rapporteur McNamara, stating that ‘the situation in Hungary should not become a precedent for duplicating the work of the Council of Europe and that ‘reinventing existing norms and setting up parallel structures creates double standards’. Therefore, ‘any future mechanism should take into account the existing monitoring bodies in the Council of Europe, of which all EU-countries are members’. 91 CoE Committee of Ministers, ‘Reply to the Parliamentary Assembly Recommendation’ ­(Strasbourg, 24 February 2014) CM/AS(2014)Rec2027final. 92 See European Commission, ‘Rule of law in Poland: Commission starts dialogue’, Brussels, 13 January 2016. 93 See in particular the declarations of the Dutch Minister of Foreign Affairs at the European ­Parliament Debate on January 19, 2016.

Rule of Law and EU Constitutionalisation 287 Commission’s decision to launch a structured dialogue under the Rule of Law Framework’.94 Moreover, it is positive that the EU Commission decided to base its assessment of the situation in Poland on the basis of an Opinion of the CoE Venice Commission, making use of the expertise in the democracy and rule of law fields of the latter. Recent events may show thus an attempt to improve institutional cooperation in safeguarding the rule of law in the EU and in the Member States, and possibly a shift from a struggle to a friendlier environment, in which institutions act together and support each other when the rule of law and other values are in danger. The debate seems to be shifting in a promising direction. Rather than discussing who should be ‘the’ ideal candidate for the job of protecting the rule of law, or which should be ‘the’ correct procedure, the EU needs indeed to make use of all the ­available tools and mechanisms if the situation so demands. The Commission Rule of Law Framework can be seen as one of the more efficient elements of a ‘multi-ingredient system’, but also the Rule of Law Dialogue of the Council, in this context, could play a more interesting role. While, as such, it does not seem to include any effective technique, and may even suggest that the EU has no role in ensuring Member States’ compliance with EU common values, if and when combined with other instruments, it could indeed offer a meaningful platform for further dialogue and exchange of good practices on the rule of law. Stimulating a shared rule of law culture may indeed be crucial especially for preventing other deterioration of political and constitutional environments. Some questions remain open still. For example, whether the Commission is the ideal candidate for the job is uncertain: with currently only a few staff members working on the issue, it remains to be seen whether the Commission has the capacity to cope once the Framework is actually set in motion. More importantly, the Commission is a political actor, not an independent supervisor, and has discretionary power to choose whether to act or not in a particular situation. The Commission may thus choose not to do anything in case of alleged violations of the EU’s foundational values, for reasons of political or economic expedience. It is submitted, on the other hand, that the Commission, as ‘guarantor of the treaties’ is also a natural candidate in light of the institutional framework set out in the treaties, despite its deficiencies. In order to strengthen its legitimacy and the efficiency of the system as a whole, it would be wise to seek cooperation with other actors, both within the EU and beyond, and including also NGOs and civil society. Finally, it is certainly positive that both the Commission and the Council, as well as the EP, insist on the existence of a host of national and international organisations and institutions developing and implementing human rights and rule of law standards, including the Council of Europe, its Venice Commission,

94  European Parliament Resolution of 13 April 2016 on the situation in Poland, Strasbourg, 13 April 2016, P 8_TA-PROV(2016)0123.

288  Monica Claes and Matteo Bonelli the United Nations and OSCE. The expertise of these bodies may indeed greatly help the EU to safeguard the rule of law, and it is equally important to avoid a mere duplication of existing mechanisms, especially when they already lack the ‘bite’ which EU law could better guarantee.

VI.  THE WAY FORWARD?

The involvement of EU institutions in safeguarding respect for the rule of law and other foundational values in the Member States is, at this stage of European integration, inescapable. The EU is a Union of values, which demands respect for democracy, fundamental rights and the rule of law as a condition for membership, both in order to acquire it—through the system of conditionality created by the Copenhagen criteria—and then to fully enjoy the rights derived from it— thanks to Article 7 TEU and a combination of other mechanisms that guarantee constant respect for the common values. In this Union of values, Member States are, by the extensive use of mechanisms of mutual recognition in crucial areas of EU law such as the internal market and the area of freedom, security and justice, largely dependent on each other. Mutual recognition can only function effectively when there is mutual trust. Mutual trust can, in a union based on the rule of law, not be presumed, but must be earned.95 Moreover, EU citizens have an interest in compliance by all Member States with the rule of law because they participate in decision-making in the EU and because they are granted rights in other Member States. Finally, the legitimacy and credibility of EU action on the external scene (Article 21 TEU) depends directly on the rule of law performance of both the EU and its Member States. It is obvious therefore that the issue of Member State respect for the rule of law has a European dimension. Involvement of the EU in the safeguarding of Member State compliance has a direct impact on the process of constitutionalisation of the Union, in the three senses discussed in the opening pages of this chapter. The current debate illustrates how there is a strong demand for more effective EU action in the field, coming from a multiplicity of actors: some of the Member States, citizens, NGO and stakeholders. This however does not mean that the European Union should impose its own concept of the rule of law, or that it should always intervene whenever it has the competence and ability to act. In the current state of EU law, well-defined ­standards are still missing. Moreover, the EU institutions should be careful when selecting cases to interfere and in choosing the appropriate mechanism in a given

95  In other words, mutual trust and cooperation between Member States remain dependent upon respect of fundamental rights and the rule of law by all the States participating in the EU mechanism. See for example Case C-411/10 NS (n 84) and I Canor, ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust Among the Peoples of Europe”’ (2013) 50(2) CML Rev 383–422.

Rule of Law and EU Constitutionalisation 289 case. After all, these are issues that are most sensitive to the Member States and often touch on what is considered at the heart of national sovereignty.96 Most importantly, the value of mechanisms already in place at national level should never be underestimated: societies might struggle in certain moments to guarantee the rule of law, but they are often able to adapt to the situation and find solutions domestically. Moreover, the Union itself still struggles for legitimacy, and is not, so to say, always on the right side of the fence in terms of compliance with the principles of democracy, rule of law and fundamental rights protection. Therefore, if EU intervention is perceived as too intrusive, the risk is that instead of solving the situation on the field, it could actually contribute to further deviations from the European common values and further violations of the rule of law. What emerges from the above is that implementing the rule of law in the current European constitutional framework is a shared responsibility, involving ­citizens, NGOs, States, the European Union and the Council of Europe. Rather than researching the ‘perfect mechanism’ to enforce the rule of law, giving responsibilities to one institution over another, the focus should be on developing a clear ‘rule of law strategy’ in which all actors at the different levels are involved. What is crucial is to create a shared rule of law culture. After a rough start, the current discussion suggests that EU institutions are finally moving in that direction, but much still needs to be done. As noted in part I, the rule of law is in fact not just legal and institutional, but rather a social and cultural phenomenon, and it is therefore vital to engage with citizens and civil society in promoting it. And since the rule of law is a common, but not uniform concept, this would allow all societies to respect and implement it without renouncing to their own understanding of the rule of law, and their contributions could on the other hand help the EU to reflect on European standards and obligations. How the EU will respond to the current rule of law challenges will undoubtedly impact on future developments of the process of constitutionalisation of the Union. The issue goes beyond the specific situations in Hungary, or Poland, or other EU countries, and also beyond the principle of rule of law, to embrace all the other fundamental values of the Union. It touches upon the horizontal division of competences between EU institutions, the vertical relations between the Union and the Member States, and also in a broader context between the Union, the Council of Europe and other European and international organisations. The need to find ‘European solutions’, in the sense indicated above, to problems that arise mostly at national level, will further increase the interdependence between Member States and the Union, and bring the process of constitutionalisation of the Union to the next step.

96  Reference can be made here to the principle of national and constitutional identity contained in Art 4.2 TEU.

290

Index access to information, see transparency access to justice, 46–47, 60 see also independent and impartial judiciary; judiciary accountability and rule of law, 43, 136–37, 210, 263 all-affected principle, 177–78, 194 Amsterdam Treaty, 7–9, 260 creation of Art.7 TEU mechanism, 5, 276 rule of law as a principle, 12, 273 arbitrariness, 19, 22–25 European Court of Human Rights: guarantees inherent to rule of law, 142, 146–48, 152–54 Kenedi v Hungary, 72–73 legality and, 42–43, 44 prohibition of arbitrariness, 19–20, 22–23, 26, 103, 120, 198, 263 proportionality and, 103–04, 110–11 Venice Commission: elements of rule of law, 120, 263 see also legal certainty Art.2 TEU, 3–9, 25–27, 58–59, 163–64, 173–74, 225–27, 230–34, 237, 252, 281 content of rule of law, 19–20 Copenhagen Commission, 219 Council of Europe: enforcement of Art.2, 251 enhanced EU monitoring and enforcement, 174 European Parliament: enforcement of Art.2, 249–50 European public order and, 140 homogeneity and, 9–11, 221 legally binding nature of norms, 15 normative effects in Union’s legal system, 14–19 reinforced EU oversight, 179–86, 194–96 rule of law as a value, 12–14, 197, 198–99, 200–02 rule of law at EU level, 273–74 rule of law in member states, 276 violations, 177 Art.7 TEU, 4–5, 7, 9 future of, 262–64 Hungary, 259–62 inadequacy of, 163–64 reinforced EU oversight, 180 special mechanisms with sanctions, 200–01

systemic deficit, 29–30 see also sanctions asylum procedures, 17 Asylum Procedures Directive, 279 Austria, 156, 208–09, 243–44, 261 access to documents, 74–76 Austrian crisis, 233 data protection, 162 legality principle, 22 selection and promotion of judges, 52 automatic case assignment, 53–57 certainty, see legal certainty Charter of Fundamental Rights of the European Union, 17, 42, 161–62, 191, 237, 262, 272–74, 280 Art.2 TEU values compared, 226–27 enforcement of rule of law, 58–59, 164–66 field of application, 164–66 judicial independence, 58–59, 199–200 legal certainty, 84 retroactive action, 84 Common Foreign and Security Policy (CFSP), 13, 243–45, 274 “community based on law”, 5–6, 29 compliance control, 42–43 Conclusions of the European Council of Copenhagen, 1993 language of rule of law, 8–9 constitutionalisation of EU law, 6–9, 265–66, 288–89 Art.7 mechanism and, 276–77 direct effect, 7, 270 function of concept of rule of law, 266–68 challenges, 268 lack of agreed definition, 268–69 fundamental rights, 7, 271 interpretation of treaties, 8 monitoring and evaluation, 277 normative effect of rule of law, 15–16 primacy of EU law, 7 process, 269 federalisation, 269, 270–71 rule of law at EU level, 269, 271–74 rule of law in member states, 269, 274–79 rule of law as a principle, 7–8 concept of rule of law: criticisms of concept, 21–22 determining content, 19–21

292  Index formal/material interpretation of EU rule of law, 22–25 Council of Europe, 24 Venice Commission, 24–25 European Convention on Human Rights, 23, 25 European Court of Human Rights, 25 European Court of Justice, 23–24 member states, 22–23 conferral principle, 31–32, 105, 109, 243–44, 251, 284 congruence principle, 9, 177, 179, 194 cooperation, 32–34, 130–33 institutional cooperation, 282–88 Cooperation and Verification Mechanism (CVM), 193, 278 Copenhagen Commission, 33, 187–93, 219, 239, 249–50, 253–54, 261, 282 Copenhagen dilemma, 4, 213–14 Council of Europe, 115–17, 133–34 Administrative Tribunal, 117 Convention on Access to Official Documents, 77 cooperation with EU, 130–33 identification of definition of rule of law, 119–21 interpretation of rule of law, 24, 117–21 monitoring mechanisms, 121–22, 250–53 Council of Europe Commissioner for Human Rights, 128–30 European Commission for Democracy through Law, 122–24 European Commission for the Efficiency of Justice, 128 Group of States Against Corruption, 126–27 PACE Monitoring Committee, 124–26 oversight procedures, 191–92 pre-eminence of law v rule of law, 118 regional initiatives: European Commission for the Efficiency of Justice, 211 European Convention on Human Rights, 211 European Court of Human Rights, 211 Group of States Against Corruption, 211–12 Venice Commission, 211 semantics of rule of law, 117–19 see also Venice Commission Council of Europe Commissioner for Human Rights, 122, 128–30, 211 counter-terrorism policies, 138–39, 159, 161 data protection, 162, 168, 192, 199, 230–31, 279 Data Retention Directive, 161–62 right to data protection, 160–62

democracy, 3–4, 8–9, 63–65, 111, 140–42, 189–90, 198–203, 226–27, 237, 266–76 all-affected principle, 177–78 congruence principle, 179 see also European Commission for Democracy through Law (Venice Commission) Department for Peace-Keeping Operations (DPKO), 208–09 developing a strategic framework, 224, 234–36, 289 roles of institutions, 237–40 differentiated standard of judicial control, 110 equal protection clause and, 110–11 digitalisation: transparency and, 77 disclosure: privacy and, 70, 72–73 state security and, 158 discrimination, 58–59, 84, 120, 168, 199, 213–14, 223, 226–27, 230, 262–63, 285 East Central European region: access to justice, 47 effet utile, 31, 181 enforcement of rule of law: Charter of Fundamental Rights of the European Union, 58–59 European Commission, 58 European Council, 58 Fundamental Rights Agency, 59 member states, in, 279–81 open method of coordination, 59–60 oversight procedures, 186–87, 189 Copenhagen Commission, 192–93 Council of Europe monitoring process, 191–92 ECJ involvement through EU citizenship rights, 190–91 ex ante v post ante procedures, 188–89 excessive deficit procedure (EDP), 190 excessive imbalance procedure (EIP), 190 existing EU bodies, 192 judicial v political procedures, 188 legal procedures, 189–91 new v existing procedures, 187–88 political procedures, 191–93 promotion of real change, 189 systemic infringement procedure, 189–90 sanctions and penalties: financial sanctions, 193–94 expelling non-compliant states from the EU, 194 equal protection clause: extension to, 103–04 proportionality, 112 differentiated standard of judicial control, 110–11 German Constitutional law and, 103–04

Index 293 equality principle, 19, 22, 44–45, 58, 119–20, 198, 226–27, 230, 239 equal protection clause, 103–04 legal certainty and, 84–85, 89 EU Anti-Corruption Report, 279 EU Charter of Fundamental Rights, see Charter of Fundamental Rights of the European Union EU Justice Scoreboard, 29, 132, 218, 228, 235, 278–79 European Commission, 248–49 enforcement of rule of law, 58 infringement proceedings, 199–200 initiatives to strengthen rule of law, 217–19 Council of Europe and Parliament compared, 252–53 intermediate situations, 201–02 mechanisms of Art.7 TEU, 200–01 new Framework to strengthen the rule of law, 33–34, 197–206, 248–49 see also Framework to strengthen the rule of law European Commission for Democracy through Law (Venice Commission), 191–93, 247–53 arbitrariness, 120, 263 Hungary, 93–94 identification of definition of rule of law, 119–21 interpretation of rule of law, 24–25 legality and legal certainty distinguished, 43 monitoring, 122–24 regional initiatives, 211 European Commission for the Efficiency of Justice (CEPEJ), 122, 128, 132, 211, 279 European Convention on Human Rights (ECHR), 116, 211 access to justice, 46–47 interpretation of rule of law, 23, 25 judicial independence, 47 legal certainty, 84–85 legality, 150–51 quality of law, 151 accessibility, 151–52 foreseeability, 152–54 quality of law, 151 accessibility, 151–52 foreseeability, 152–54 European Council, 213, 221–22, 281, 283–84 enforcement of rule of law, 58 see also European Commission for Democracy through Law (Venice Commission) European Court of Human Rights (ECtHR), 116, 135, 140, 154, 211 access to justice, 46–47, 65–66, 147–48 Gaskin v UK, 67–68 Janowiec and others v Russia, 74 Kenedi v Hungary, 71–72 Leander v Sweden, 66–67

Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria, 74–76 Sdruzeni Jihoceske Matky v Czech Republic, 68–69 Társaság a Szabadságjogokért v Hungary, 69–71 Youth Initiative for Human Rights, v Serbia, 72–73 assignment and transfer of cases, 54–57 defining rule of law, 136–39 democracy and rule of law: interdependence of, 140–42 formal/material interpretation of rule of law, 25, 26–27 fundamental nature of rule of law, 140–42 guarantees inherent to rule of law, 142 access to court, 147–48 due process guarantees, 147–49 independence and impartiality of the judiciary, 143–45 judicial control of the executive, 145–47 judicial oversight, 142–47 legal certainty, 149 judges: assignment and transfer of cases, 54–57 independence and impartiality, 143–45 judicial control of the executive, 145–47 judicial oversight, 142–47 secondment of judges, 57 selection and promotion of judges, 52–52 legal certainty, 84–85, 149 legality and, 150–51 quality of law, 151 accessibility, 151–52 foreseeability, 152–53 proportionality, 104–05, 112 secondment of judges, 57 selection and promotion of judges, 52–52 European Court of Justice (ECJ), 155–56 balancing fundamental rights, 160–62 enforcement of rule of law in member states, 162–63, 167 Hungary, 167–69 focus on rule of law in EU, 6 rule of law in member states distinguished, 6 interpretation of rule of law, 23–24, 26–27 judicial protection against restrictive measures, 157–59 legislative discretion and judicial scrutiny, 159–60

294  Index legal protection as maxims, 5–6 monitoring application of EU law, 162–63 oversight procedures: ECJ involvement through EU citizenship rights, 190–91 proportionality principle, 105, 160–62 recent jurisprudence, 156–57 balancing fundamental rights, 160–62 effective judicial protection against restrictive measures, 157–59 legislative discretion and judicial scrutiny, 159–60 European Parliament: initiatives to strengthen rule of law, 219–20, 249–50 European Union, 243–44 establishment, 174 function of rule of law, 4 “community based on law”, 5 constitutionalisation strategy, 6–9 legal protection, 5–6 initiatives to strengthen rule of law: “four member states” initiative, 216–17 Irish initiative, 215 internal challenges, 257–58 Art.7 TEU, 259–64 Hungary, 259–62 need for an administrative law for EU institutions, 258–59 monitoring rule of law, 177 all-affected principle, 177–78 congruence principle, 179 supranational federation approach, 178–79 oversight procedures, 186–87, 189, 194–96 Copenhagen Commission, 192–93 Council of Europe monitoring process, 191–92 ECJ involvement through EU citizenship rights, 190–91 ex ante v post ante procedures, 188–89 excessive deficit procedure (EDP), 190 excessive imbalance procedure (EIP), 190 existing EU bodies, 192 judicial v political procedures, 188 legal procedures, 189–91 new v existing procedures, 187–88 political procedures, 191–93 promotion of real change, 189 systemic infringement procedure, 189–90 proportionality principle: competence-related dimension, 108–09 reinforced EU oversight, 179–80 Art.7 TEU, 180 current legal bases, 182–83 reading Arts 2, 4(2), 3(1) and 13(1) together, 183–84 reading Arts 2 and 19 together, 184

reading Art.2 TEU and Art.258 TFEU together, 184–85 deployment of Art.260 TFEU, 185–86 treaty change, 180–82 rule of law crisis, 4, 212–13 Copenhagen dilemma, 213–14 fight against corruption, 213 functioning of politics, 213 increasing xenophobic incidents, 213 lack of coherence regarding action on human rights, 214–15 non-compliance by member states, 214 sanctions and penalties, 214–15 expelling non-compliant states from the EU, 194 financial sanctions, 193–94 excessive deficit procedure (EDP), 190 excessive imbalance procedure (EIP), 190 Framework to strengthen the rule of law, 33–34, 197–98, 206, 248–49 Art.7 mechanisms, 200–01 Commission assessment, 205–06 Commission recommendation, 206 common understanding of rule of law, 198 crisis situations, 202 follow-up to recommendations, 206 infringement proceedings, 199–200 intermediate situations, 201–02 “national rule of law safeguards”, 203 objective, 202–03 powers of Commission, 204–05 preventive and sanctioning mechanisms, 200–01 reason required, 198–99 “rule of law crisis”, 204 “systemic threat to rule of law”, 203–04 three-sate process, 205–06 fundamental rights, 4, 26–27, 225–27 bottom-up approach, 233–34 developing a strategic framework, 234–36 roles of institutions, 237–40 European Court of Justice jurisprudence, 160–62 rights-based performance: cooperation, 232–33 fundamental rights indicators, 227–30 leading by example, 231–33 sanctions, 27 moving beyond sanctions, 230–31 violations, 27 see also Fundamental Rights Agency Fundamental Rights Agency (FRA), 188–89, 244, 245–46, 278 Council of Europe and, 247, 250–51 enforcement of rule of law, 59 European Commission and, 248–49 European Parliament, 249–50

Index 295 Irish initiative, 215 national competence and, 246–47 role in legislative procedure, 246 Gaskin v UK: access to information, 67–68 Germany: emanation of rule of law, 15–16 equal protection clause: proportionality and, 103–04 proportionality and constitutional law, 100–01 competence-related dimension, 109–10 controlling balance of interests, 103 equal protection clause and, 103–04 Federal Constitutional Court, 101–04 generalisation of principle, 102–03 origins, 101–02 selection and promotion of judges, 52 global initiatives: International Development Law Organization (IDLO), 210 United Nations, 208–09 World Bank, 209–10 World Justice Project, 210–11 Group of States against Corruption (GRECO), 122, 126–27, 132, 211 Hague Programme and Action Plan, 277 heterogeneity: minimum constitutional cohesion, 221–24 hierarchy of norms, 26 legality and, 43–44 see also legality homogeneity clause, 9 see also Art.2 TEU human rights, see European Convention of Human Rights; European Court of Human Rights Hungary, 3–4, 32 access to documents, 69–72 automatic case assignment, 54 ECJ enforcement of rule of law in Hungary, 167–69 judges: assignment and transfer of cases, 54 independent and impartial judiciary, 48–50 mandatory retirement, 59 separation of powers and, 93–95 independent and impartial judiciary, 26, 47, 60 appearance of independence, 47 appointment of judges, 47, 50–53 assignment and transfer of cases, 53 European Court of Human Rights, 54–57 Hungary, 54 automatic case assignment, 53–57

European Convention on Human Rights, 47–49 guarantees against outside pressures, 47 Hungary, 49–50 international agreements, 47 judicial interpretation of legal certainty, 88–91 secondment of judges, 57 selection and promotion of judges, 50–52 Austria, 52 European Court of Human Rights, 52–52 German, 52 UK, 52–53 whether EU action needed: Charter of Fundamental Rights of the European Union, 58–59 Commission, 58 European Council, 58 Fundamental Rights Agency, 59 open method of coordination, 59–60 infringement proceedings: European Commission, 199–200 oversight procedures, 189–90 systemic infringement procedure, 189–90 International Covenant on Civil and Political Rights (ICCPR): judicial independence, 47 International Development Law Organization (IDLO), 210 Janowiec and others v Russia: access to information, 74 judges, see independent and impartial judiciary judicial scrutiny: counter-majoritarian difficulty, 111 European Court of Human Rights: guarantees inherent to rule of law, 142–47 European Court of Justice: legislative discretion and, 159–60 proportionality, 110–11 judiciary: assignment and transfer of cases, 54–57 independent and impartial judiciary, 26, 47, 60 appearance of independence, 47 appointment of judges, 47, 50–53 assignment and transfer of cases, 53 European Court of Human Rights, 54–57 Hungary, 54 automatic case assignment European, 53–57 European Court of Human Rights, 54–57, 143–45 guarantees against outside pressures, 47 Hungary, 49–50 international agreements, 47 judicial interpretation of legal certainty, 88–91 secondment of judges, 57

296  Index selection and promotion of judges: Austria, 52 European Court of Human Rights, 52–52 German, 52 UK, 52–53 judicial control of the executive, 145–47 judicial oversight, 142–47 secondment of judges, 57 selection and promotion of judges, 52–52 see also independent and impartial judiciary Kenedi v Hungary: access to information, 71–72 language of rule of law, 8–9 Leander v Sweden: access to information, 66–67 legal certainty, 95–97 formal certainty, 81–83 guarantees inherent to rule of law, 142 legal certainty, 149 judicial interpretation and, 88–91 legal delegation and, 85 legality and, 43, 86 a minori ad maius, 87 res judicata, 86–87 meaning, 80–81 predictability: clarity, 82–83 consistency, 83 scope, 81 recognisability, 81 separation of powers and, 91–93 Hungary, 93–95 stare decisis, 94–95 substantive certainty, 83 Charter of Fundamental Rights of the European Union, 84 equality principle, 84 European Convention on Human Rights, 84–85 European Court of Human Rights, 84–85 nulla poena sine lege, 84 nullun crimen sine lege, 84 legal homogeneity, 9–10 constitutional homogeneity, 10 horizontal homogeneity, 10–11 relationship between EU and member states, 10 relationship between member states, 10–11 vertical homogeneity, 10 legal protection and rule of law, 5–6 legal order of the EU: legal homogeneity, 9–10, 11 constitutional homogeneity, 10 horizontal homogeneity, 10–11 relationship between EU and member states, 10

relationship between member states, 10–11 vertical homogeneity, 10 normative effects of rule of law, 14–19 promotion of rule of law, 9 value and principle, 12–14 legality, 37 complexity, 38–39 compliance with the law, 39–40 dominance of parliamentary law, as, 41–42 duty of the state, as, 40–41 European Convention on Human Rights and, 150–51 quality of law, 151–53 hierarchy of norms, 43–44 legal certainty and, 43, 86 a minori ad maius, 87 res judicata, 86–87 quality of law, 42–43, 151 accessibility, 151–52 foreseeability, 152–53 trust, 45 value of legality, 44 formality, 44 fundamental rights and, 44–45 substantive effects, 44–45 see also hierarchy of norms legislative discretion: European Court of Justice, 159–60 judicial scrutiny and, 159–60 legitimate expectations, 24, 26, 43, 84, 87, 96 Lisbon Treaty, 42, 260, 271–74, 278 rule of law as a value, 12 Maastricht Treaty, 273 language of rule of law, 9 member states: constitutionalisation and rule of law, 274–79 enforcement of rule of law, 279–81 European Court of Justice enforcement of rule of law, 162–69 implementation of rule of law, 30 3-step mechanism, 31–32 mutual recognition principle, 16–18 disregard of minimum standards, 17–18 rule of law deficits, 17–18 non-compliant states, 194 respecting rule of law, 162–69 responsibility to guarantee rule of law, 282–88 systemic deficit, 27 consequences, 29–30 risks for EU, 28–29 Mexico, 256–57 minimum standards, 11, 16 disregard by member states, 17–18 monitoring the rule of law, 121–22 Art.2 TEU, 174 congruence principle, 179 constitutionalisation of EU law, 277

Index 297 Council of Europe monitoring mechanisms, 121–22, 250–53 Council of Europe Commissioner for Human Rights, 128–30 European Commission for Democracy through Law, 122–24 European Commission for the Efficiency of Justice, 128 Group of States against Corruption, 126–27 PACE Monitoring Committee, 124–26 European Commission for Democracy through Law, 122–24 European Court of Justice, 162–63 European Union, 177 all-affected principle, 177–78 congruence principle, 179 supranational federation approach, 178–79 mutual recognition principle, 16–18 disregard of minimum standards, 17–18 rule of law deficits, 17–18 neighbourhood policy, 256 normative effect of rule of law: binding norms, 14–15 values and principles, 14–15 emanation into EU legal order, 15–16 mutual recognition of legal decisions, 16–18 Office of Legal Affairs (OLA), 208 Office of the High Commissioner for Human Rights (OHCHR), 208–09 open method of coordination (OMC): enforcement of rule of law, 59–60 Organisation for Economic Cooperation and Development (OECD): access to information laws, 76 Organisation for Security and Cooperation in Europe (OSCE), 208, 211–12, 215, 266–67, 287–88 Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria: access to information, 74–76 oversight, 175 constitutional capture, 176 dismantling liberal democratic state, 176 legal procedures, 189 ECJ involvement through EU citizenship rights, 190–91 excessive deficit procedure (EDP), 190 excessive imbalance procedure (EIP), 190 systemic infringement procedure, 189–90 political procedures, 191 Copenhagen Commission, 192–93 Council of Europe monitoring process, 191–92 existing EU bodies, 192

procedures, 186–87 ex ante v post ante procedures, 188–89 judicial v political procedures, 188 legal procedures, 189–91 new v existing procedures, 187–88 political procedures, 191–93 promotion of real change, 189 reasons for, 175 abuses of political power, 176 careless use of law, 176 fundamental and serious issues, 176 reinforced EU oversight, 179–80 Art.7 TEU, 180 current legal bases, 182–83 deployment of Art.260 TFEU, 185–86 reading Art.2 TEU and Art.258 TFEU together, 184–85 reading Arts 2 and 19 together, 184 reading Arts 2, 4(2), 3(1) and 13(1) together, 183–84 treaty change, 180–82 systemic corruption, 176 PACE Monitoring Committee, 124–26 Poland, 3–4, 31, 175, 215, 279–80, 282, 286–87, 289 “principle” of rule of law, 7–8, 13 Amsterdam Treaty, 12 “value” of rule of law distinguished, 12–13 see also “value” of rule of law private sector: transparency and, 79 proportionality, 26, 31, 98 additive infringements of freedom rights, 111 binding nature of proportionality principle, 107 bipolar legal relationships, 107 competence-related dimension, 108 European Union, 108–09 Germany, 109–10 cumulative infringements of freedom rights, 111 differentiated standard of judicial control, 110 equal protection clause and, 110–11 equal protection clause: differentiated standard of judicial control, 110–11 German Constitutional law and, 103–04 European Court of Human Rights, 104–05, 112 European Court of Justice, 105, 160–62 evolution of principle: common law, 98–99 Prussian Police Law (1794), 99 German Constitutional law and, 100–01 controlling balance of interests, 103

298  Index equal protection clause and, 103–04 Federal Constitutional Court, 101–04 generalisation of principle, 102–03 origins, 101–02 multipolar legal relationship, 107–08 national legal orders, 106 proportionality test, 106–07 proportionality test, 106–07 public authority of the EU, 18–20, 23, 66, 267, 269–70 publicity: judicial independence and, 49–50 regional initiatives: Council of Europe: European Commission for the Efficiency of Justice, 211 European Convention on Human Rights, 211 European Court of Human Rights, 211 Group of States Against Corruption, 211–12 Venice Commission, 211 Organisation for Security and Cooperation in Europe, 212 right to access official documents, see transparency right to data protection, see data protection rule of law: concept: determining content of rule of law, 19–21 EU rule of law, 25–27 formal interpretations, 22 material interpretations compared, 22–25 usefulness of a concept, 21–22 Council of Europe definition, 119–21 democracy and, 3–4, 8–9, 63–65, 111, 140–42, 189–90, 198–203, 226–27, 237, 266–76 all-affected principle, 177–78 congruence principle, 179 European Court of Human Rights definition, 136–39 function within the EU, 4–5 constitutionalisation strategy, 6–9 legal protection, 5–6 implementation among member states, 30–32 inclusion of concept in treaties, 7–8 minimum standards, 15–18 respect for human rights, 136–39 systemic crisis in member states, 27–30 western concept, as a, 136 rule of law deficits: disregard for minimum standards, 17–18 systemic deficits, 29–30 rule of law oversight, see oversight

sanctions and penalties: expelling non-compliant member states, 194 financial sanctions, 193–94 sanctions procedure, 5, 9, 13–15, 32–33 implementation, 30 3-step mechanism, 31 systemic deficit and, 30 see also Art.7 TEU Sdruzeni Jihoceske Matky v Czech Republic: access to information, 68–69 selection and promotion of judges, 50–53 Austria, 52 European Court of Human Rights, 52–52 German, 52 UK, 52–53 separation of powers, 4, 5, 10–11, 25 legal certainty and, 21, 91–93 Hungary, 93–95 stare decisis, 94–95 see also independent and impartial judiciary Strasbourg Final Declaration and Action Plan 1997, 116 supranational federation approach: monitoring the rule of law, 178–79 systemic deficit, 27 consequences, 29–30 risks for EU, 28–29 sanctioning procedure and, 30 Sweden, 215 access to information, 64–65, 66–67, 78–79 Public Access to Information and Secrecy Act, 78 systemic infringement procedure, 183–85, 189–90 Társaság a Szabadságjogokért v Hungary: access to information, 69–71 terrorism: counter-terrorism policies, 138–39, 159, 161 threats to rule of law, 28–29, 173–74, 198–99, 202–04 transparency, 26, 61–62, 76–77 access to information, 63–64 digitisation and, 77 European Convention on Human Rights, 65–66 European Court of Human Rights, 65–66 Gaskin v UK, 67–68 Janowiec and others v Russia, 74 Kenedi v Hungary, 71–72 Leander v Sweden, 66–67 Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v Austria, 74–76 Sdruzeni Jihoceske Matky v Czech Republic, 68–69

Index 299 Társaság a Szabadságjogokért v Hungary, 69–71 Youth Initiative for Human Rights, v Serbia, 72–73 European Court of Justice, 65 internationalisation and flows of information, 78–79 meaning in context, 62 private sector and, 79 right to access official documents, 62–63 Treaty on European Union (TEU): Art.3(1), 183–84 Art.4(2), 183–84 Art.5(4), 108–09 Art.13(1), 183–84 Art.19, 184 see also Art.2 TEU; Art.7 TEU Treaty on the Functioning of the European Union (TFEU): Art.258, 4, 184–85 Art.260, 184–85 Art.352, 237 trust, 178, 198, 213–14, 231, 235, 277, 288 legality and, 45 mutual recognition and, 58 United Kingdom, 117–18 access to justice, 67–68 independence of the judiciary, 143–44 selection and promotion of judges, 52–53 judicial protection against restrictive measures, 157–58

United Nations, 208–09 Indicators Project, 209 Rule of Law Coordination and Resource Group, 208–09 Rule of Law Unit, 208–09 UN Commission on International Trade Law (UNCITRAL), 208 UN Development Programme (UNDP), 208 UN Office of the High Commissioner for Human Rights (OHCHR), 208–09, 228 UN Office on Drugs and Crime, (UNODC), 208 “value” of rule of law, 288–89 doctrinal principles, as, 12–13 ethical nature, 13 “principle” of rule of law distinguished, 12–13 Venice Commission, see European Commission for Democracy through Law (Venice Commission) Vienna Declaration 1993, 116 Warsaw Declaration 2005, 116 Western Balkans, 256 World Bank, 208, 209–10, 267 Worldwide Governance Indicators, 29, 210 World Justice Project: Rule of Law Index, 210–11 Youth Initiative for Human Rights, v Serbia: access to information, 72–73

300