Understanding the Best Practices in the Area of the Rule ...

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Understanding the Best Practices in the Area of the Rule of Law

Barbara Grabowska-Moroz with the assistance of Dimitry Kochenov Carlos Closa (annex)

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DISCLAIMER This project has received funding from the European Union’s Horizon 2020 Research & Innovation programme under Grant Agreement no. 770142. The information in this deliverable reflects only the authors’ views and the European Union is not liable for any use that may be made of the information contained therein. DISSEMINATION LEVEL Public


Project: GA: Horizon 2020: Funding Scheme:

RECONNECT – Reconciling Europe with its Citizens through Democracy and Rule of Law 770142 H2020-SC6-CULT-COOP-2017-two-stage Collaboration Project

Understanding the Best Practices in the Area of the Rule of Law

Work Package 8 – Deliverable 8.1

Due date: 30.04.2020 Submission date: 30.04.2020 Lead beneficiary: University of Groningen Authors: Barbara Grabowska-Moroz

Dimitry Kochenov (assistance and referencing) Carlos Closa (annex)


Content

1. Introduction .............................................................................................................................................5

2. Rule of law practices as an indispensable element of the adherence to the rule of law ......................6

2.1. From the rule of law standards to the rule of law practices ...........................................................6

2.2. Types of rule of law practices ........................................................................................................ 10

2.2.1. Institutional practices ............................................................................................................. 10

2.2.2. Procedural practices ............................................................................................................... 14

2.2.3. Political practices ............................................................................................................. 16

3. Looking for best rule of law practices at the national level. ................................................................ 18

3.1. Institutional practices .................................................................................................................... 19

3.2. Procedural practices ...................................................................................................................... 23

3.3. Political practices ........................................................................................................................... 28

4. Rule of law practices in the European Union – dual role in times of crisis ......................................... 34

4.1. Rule of law practices and the EU institutional architecture ......................................................... 35

4.2. Procedural rule of law practices in the European Union .............................................................. 38

4.3. Political rule of law practices – EU institutions and Member States ............................................ 42

Conclusions ............................................................................................................................................... 47

Annex. Article 7 – mapping Member States’ positions ............................................................................ 49


1. Introduction*

Despite the enormous volume of literature on rule of law issues from European and world-wide perspectives, the ongoing debate regarding the so-called ‘rule of law crisis’ in the European Union (EU) has provoked numerous questions concerning the essence of the rule of law and its practical implications. Investigating the practices of the rule of law is essential for the ongoing debate about the limitations of EU actions regarding the rule of law protection in the EU Member States. ‘Many states may claim that they are subject to the rule of law but often these claims can be peeled away to reveal practices that hardly accord with all the elements that might plausibly be drawn from the definitional debates.’1

Dealing with the rule of law was often seen as ‘too academic or at least impractical, too sophisticated and certainly completely out-dated.’2 The ‘rule of law turn’3 observed in the last years has refocused the approach to the rule of law as a concept affecting everyday application of EU law in the Member States. It has made the rule of law research more interested in practical aspects thereof.

Research on rule-of-law practices based on comparative methods shows numerous obstacles starting with definitional debates about the scope of the rule of law, and about common standards and tools available to ‘measure’ the rule of law situation in a given jurisdiction. The concept of ‘measuring the rule of law’ has been comprehensively conducted inter alia by the World Justice Project (WJP).4 In its 2019 report the WJP explains that the rule of law is a framework of laws and institutions that embodies four universal principles: accountability, just laws, open government and accessible and impartial dispute resolution.5 The authors of the WJP methodology clearly admit that ‘societies have different rules and institutions to establish the rule of law’ and comparing those institutions ‘is not meaningful unless we evaluate their merits or failures across a range of assessment criteria removed from contextual factors.’6 One of the consequences of such an approach is that the WJP Rule of Law Index ‘measures adherence to the rule of law by looking at policy outcomes’.7 The research shows that not only the measurement strategy but also expert perceptions are relevant when measuring the rule of law and when applying rule of law indicators.8

* Maciej Owidzki’s help with this paper is gratefully acknowledged. 1 Christopher May, The Rule of Law. The Common Sense of Global Politics (Edward Elgar 2014) 38 (hereafter May, The Rule of Law). 2 Thomas von Danwitz, ‘Values and the Rule of Law: Foundations of the European Union – An Inside Perspective from the ECJ’ (2018) 21 PELJ 2 (hereafter von Danwitz, ‘Values and the Rule of Law’). 3 Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54(5) JCMS 1058 (hereafter Magen, ‘Cracks in the Foundations’). 4 Juan C. Botero and Alejandro Ponce, ‘Measuring the Rule of Law’ (2010) The World Justice Project Working Paper Series WPS No. 001 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966257> accessed 1 February 2020 (hereafter Botero and Ponce, ‘Measuring the Rule of Law’). 5 WJP, Rule of Law Index 2019, 9. 6 Botero and Ponce, ‘Measuring the Rule of Law’ (n 4). 7 WJP, Rule of Law Index 2019, 8. 8 Mila Versteeg and Tom Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’ (2017) 42(1) Law and Social Inquiry 124; Mila Versteeg and Tom Ginsburg, ‘Constitutional Correlates of the Rule of Law’ in Maurice Adams, Ernst Hirschballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017) 506.


The paper analyses the main rule of law practices – both in the EU Member States and in the EU institutions. Those are practices which result from the rule of law theoretical framework and international standards, but also which might negatively affect the rule of law. In order to highlight why a given practice shall be considered as a positive one, a broader context might be needed. In consequence as the paper concentrates on best practices, it also analyses those which undermine the rule of law to present the functional added value of the best rule of law practice. As a result, such approach makes the picture of the rule of law practices more comprehensive and allows drawing positive recommendation from negative examples. The limits of the paper do not allow to apply ‘measuring’ methods to the European Union institutions and Member States, however existing research based on measuring methods constitutes a relevant point of reference when looking for examples as to how the rule of law is understood internationally and what practices can be recognised as contributions to the rule of law.9 The aim of the paper is to provide an analysis of widely divergent practices in the field of rule of law as well as a comparative matrix of the key rule of law practices among the Member States. The paper provides basic features or elements of rule of law practices and allows conceptualizing this notion for the purpose of the debate concerning the rule of law in the EU environment. The working paper is divided into three parts. The first part provides an overview of the main types of EU rule of law practices. The second and third parts apply the proposed typologies to national and supranational contexts respectively. The working paper also includes an annex provided by Carlos Closa, which contains a detailed analysis of Member States’ positions regarding Article 7 TEU procedure. The methodology is based on existing research, publicly available official documents, court rulings, findings of international organisations and analysis provided by national NGOs and academia. Additionally, ‘rule of law practices’ were identified on the basis of media reports, officials’ statements, policy briefs.

2. Rule of law practices as an indispensable element of the adherence to the rule of law

2.1. From the rule of law standards to the rule of law practices

The main point of reference regarding the definition of the rule of law in the European context is the Venice Commission’s ‘Rule of law Checklist’,10 which provides five benchmarks: legality, legal certainty, prevention of abuse (misuse) of power, equality before the law and non-discrimination, access to justice. All of them were used by the European Commission for the purpose of the so-called ‘Rule of law framework’,11 supplemented with a broad requirement of respect for fundamental rights. The Communication by the European Commission pointed also at the separation of powers as a rule of law element.12 The idea of a checklist making it possible 9 The Hague Institute for Innovation of Law, Concept Paper ‘Measuring the rule of law, justice and fundamental rights’, Appendix. 10 Venice Commission, Rule of Law Checklist, Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016) CDL-AD(2016)007. 11 Communication from the Commission to the European Parliament and the Council – A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final. For analysis, see, Dimitry Kochenov and Laurent Pech, ‘Better Late than Never: On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54 JCMS 1062-1074. 12 Communication from the Commission to the European Parliament, the European Council and the Council – Further strengthening the Rule of Law within the Union State of play and possible next steps, Brussels, 3 April 2019 COM(2019) 163 final, p. 1. For analysis, see, Dimitry Kochenov, ‘Elephants in the Room: The European


to evaluate the state of the rule of law in a specific country gives the impression that the rule of law is truly a practical legal concept.13 Oversimplified checklists can however pose a threat and legitimize governments and legal systems undermining the rule of law, where the rule of law institutions exist but do not fulfil their function – do not limit public power.

The Eurobarometer survey on the rule of law14 conducted by Kantor among more than 27 thousand respondents in all EU Member States and commissioned by the European Commission, was published in April 2019. Each of the ‘rule of law principles’ was found by the vast majority of respondents (from 86% to 94%) as essential or important.15 The survey was based on a rather formal understanding of the rule of law – 17 detailed principles of the rule of law were divided into three groups:16

1. ‘Legality, legal certainty, equality before the law, separation of powers’ (equality before the law, clarity and stability of law, ease in following how parliament adopts laws, lawmakers act in public interest, independent controls of law);

2. ‘Prohibition of arbitrariness and penalties for corruption’ (clarity of public authorities’ decisions, independent review of public authorities’ decisions, unbiased decisions of public authorities, making decisions in public interest, acting of corruption, codes of ethics for politicians);

3. Effective judicial protection by independent courts (access to an independent court, length or cost of court proceedings, independence of judges, the proper investigation of crimes, respect for and application of court rulings, codes of conduct of politicians).17

Rule of law practice can be understood in a twofold way. On the one hand, practical realization and implementation of the theoretical rule of law concepts and standards may amount to rule of law practices.18 On the other however, rule of law practices may also be analyzed as rule of law standards applicable in practice, despite the fact that they face challenges limiting their full implementation. Those challenges might be considered as negative rule of law practices. In consequence, the way in which rule of law abstract notion is applied and secured at national and supranational level might include negative and positive examples, often closely interrelated, as good practices might be considered as a tool to overcome negative rule of law situations. Practices designed precisely not to achieve compliance with the normative ideal are equally important.19 A simple realisation follows: not all governments are actually willing to comply designing their policies to deviate from the rule of law on purpose, as opposed to falling short as a result of ineffective regulation or mismanagement. This allows scholars to speak of a

Commission’s 2019 Communication on the Rule of Law’ (2019) 11 Hague Journal of the Rule of Law 423 (hereafter Kochenov, ‘Elephants in the Room’). 13 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-e, para 69. 14 Report – Rule of Law, Special Eurobarometer 489, July 2019. 15 Report – Rule of Law, Special Eurobarometer 489, 5. 16 Additionally, the survey was supplemented with issues regarding media and civil society. 17 Report – Rule of law, Special Eurobarometer 489, July 2019, 3-4. 18 According to Oxford Advanced Learner's Dictionary, the word ‘practice’ means i.a. ‘a way of doing something that is the usual or expected way in a particular organization or situation’, as well as ‘thing that is done regularly’. 19 Martin Keygier, ‘The Rule of Law: An Abuser’s Guide’ in András Sajó (ed) Abuse: The Dark Side of Fundamental Rights (Eleven International Publishing 2006) 129.


‘spectrum of defiance’.20 In order to capture the matrix of the rule of law best practices, it is inevitable to assess also the negative examples, which allow formulating positive recommendations.

In order to assess whether a given situation amounts to a positive or negative practice often requires analysis of a broader (legal, political, social) context and at least short-term consequences. Furthermore, analysis of the practices makes it possible to demonstrate when and under what conditions a broader context can play a relevant role in discussing adherence to the rule of law and when it is only a political smokescreen. Situations, when a legal system fulfils the theoretical rule of law requirements of various ‘rule of law checklists’, but does not guarantee that public power is limited, is one of the worst rule of law practices.

Kim Lane Scheppele used the term ‘Frankenstate’ to describe a system which is ‘composed from various perfectly reasonable pieces, and its monstrous quality comes from the horrible way that those pieces interact when stitched together’.21 It is due to the fact that those ‘pieces’ (institutions, procedures) play in practice a different role than what is assumed in a democratic state. Combining those elements – by referring to legal systems of liberal democracies – can give a sense that a Frankenstate will pass any rule of law checklist,22 even though in practice those pieces add up to an authoritarian system.23 Parliamentary Assembly of Council of Europe referred to this concept recently and found that ‘Frankensteinisation of legislation’ understood as a combination of ‘worst practices’ existing in other countries, instead of on best practice and common European standards. It was underlined that ‘even if certain provisions are similar to those in other countries, they cannot be taken out of the context of the overall legal framework and legal tradition in which they exist.’24

The recent ‘rule of law crisis’ strengthened a much-forgotten truth that the rule of law is a practical concept. Its main functions are: to protect people from the government and to protect people from each other.25 In any legal configuration the rule of law means at least that laws are applied and enforced.26 The way this simple notion, but also other rule of law aspects, materialises in practice might differ depending on a broader legal and socio-political context and legal culture. For this purpose, rule of law must be open-ended in order to fit into different contexts and systems.27 It can be determined by constitutional traditions, which in the EU 20 András Jakab and Dimitry Kochenov, ‘Introductory Remarks’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) 3 (hereafter Jakab and Kochenov, ‘Introductory Remarks’). 21 Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’ (2013) 26(4) Governance: An International Journal of Policy, Administration, and Institution 559. 22 Ibid, 562; Kim Lane Scheppele, ‘Not Your Father’s Authoritarianism: The Creation of the “Frankenstate”’ (2013) Newsletter of the European Politics and Society Section of the American Political Science Association 5. 23 Cf Laurent Pech et al., ‘An EU mechanism on democracy, the rule of law and fundamental rights – Annex I (EPRS study)’, PE 579.328, April 2016; Petra Bárd et al., ‘An EU Mechanism on Democracy, the Rule of law, and Fundamental Rights: Assessing the Need and Possibilities for the Establishment of an EU Scoreboard on Democracy, the Rule of Law and Fundamental Rights’ (EPRS Sturdy) PE 579.328 April 2016. 24 Parliamentary Assembly of the Council of Europe, ‘The functioning of democratic institutions in Poland’ Resolution 2316 (2020) para 10. 25 Adriaan Bedner, ‘An Elementary Approach to the Rule of Law’ (2010) 2 Hague Journal on the Rule of Law 50 (hereafter Bedner, ‘An Elementary Approach to the Rule of Law’). 26 Theodore Konstadinides, The Rule of Law in the European Union – The Internal Dimension (Hart Publishing 2017) (hereafter Konstadinides, The Rule of Law in the European Union). 27 Nicolas Hachez and Jan Wouters, ‘Promoting the Rule of Law: A Benchmarks Approach’ KU Leuven Working Paper No. 105 – April 2013, 27, <https://ssrn.com/abstract=2258331> accessed 4 March 2020.


context are common, but are not identical.28 However, as was underlined by the Venice Commission, ‘the contextual elements of the Rule of Law are not limited to legal factors.’29 Other factors might deal with political and legal culture,30 since the rule of law understood as ‘practical ideals’ might be ‘determined by political disagreements and the tensions that beset political life’ and need to be sensitive to political reality.31

That is why the overall adherence to the rule of law is a matter of degree,32 since there are different ‘kinds of disrespect of the rule of law’33 and ‘states can satisfy it to a greater or lesser extent’.34 Unfortunately, pre-accession assessment conducted by the European Commission does not provide many guidelines regarding the understanding of rule of law practices.35 First of all, ‘rule of law’ was part of ‘political criteria’ section of the Copenhagen criteria of 1993,36 which is already a misleading assumption. Secondly, the Commission Opinions and Progress Report linked ‘rule of law’ and ‘democracy’, which creates even more terminological confusion, as the Commission does not make a clear distinction between the two concepts.37 Furthermore, research suggested that understanding of the rule of law in the accession process was closely linked to domestic understanding of the notion without any reference to autonomous supranational definition thereof. The main issues covered by ‘Democracy and Rule of Law’ criterion were: the functioning of legislature, the functioning of the judiciary, the functioning of the executive and anti-corruption measures. Additional areas of scrutiny were free and fair elections. The research showed however that despite the fact that Copenhagen criteria introduced a concept of ‘merit-based enlargement’ the threshold of meeting those requirements was rather low.38 Wojciech Sadurski is absolutely right, however, pointing out the deep constitutionalising effect that the Copenhagen criteria and the whole pre-accession exercise had on the whole edifice of the EU legal system,39 eventually leading to the codification 28 Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese, ‘The Ideal and the Real in the Realm of Constitutionalism and the Rule of Law: An Introduction’ in: Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017) 13 (hereafter Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’). 29 Venice Commission, Rule of Law Checklist, para 42 30 Ibid. 31 Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’ (n 28) 14. 32 Magen, ‘Cracks in the Foundations’ (n 3) 381. 33 Nonetheless, it goes without saying that there is a fundamental difference in quality between those kinds of disrespect of the rule of law, even if the precise point of distinction may not easily be identified in the abstract: von Danwitz, ‘Values and the Rule of Law’ (n 2) 10. 34 Paul Gowder, The Rule of Law in the Real World (CUP 2016) 26. 35 Eline De Ridder and Dimitry Kochenov, ‘Democratic Conditionality in Eastern Enlargement: Ambitious Window Dressing’ (2011) 16 Eur Foreign Aff Rev 589; Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law International 2008) (hereafter Kochenov, EU Enlargement and the Failure of Conditionality). 36 Christophe Hillion, ‘The Copenhagen Criteria and Their Progeny’ in Christophe Hillion (ed), EU Enlargement: A Legal Approach (Hart Publishing 2004); Marc Maresceau, ‘Quelques réflexions sur l’application des principes fondamentaux dans la stratégie d’adhésion de l’UE’ in Le droit de l’Union européenne en principes: Liber amicorum en l’honneur de Jean Raux (LGDJ 2006) 69. 37 In the literature it was presented as ‘organic combination’. Cf Ronald Janse, ‘Is the European Commission a Credible guardian of the Values? A Revisionist Account of the Copenhagen Political Criteria during the Big Bang Enlargement’ (2019) 17 ICON 43. 38 Dimitry Kochenov, ‘Behind the Copenhagen Façade. The Meaning and Structure of the Copenhagen Political Criterion of Democracy and the Rule of Law’ (2004) 8(10) European Integration online Papers (EIoP) 1; Kochenov, EU Enlargement and the Failure of Conditionality (n 35) ch 1. 39 Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012).


of the core values on which the legal systems of the EU and the Member States are built, moving away from unwritten practice of assuming the importance of, inter alia, democracy and the rule of law, toward the current text of Article 2 TEU.40

2.2. Types of rule of law practices

There are commonalities and differences regarding rule of law elements in Member States as well as in the EU.41 Each practice may have different nature and deal with different aspects of law application and enforcement. Elements of such ‘rule of law mosaic’ can be divided into three groups: institutional, procedural and political. Scratches of best and worst practices can show the broad range of rule of law meaning which takes into account contextual differences, without providing a one-fit-for-all institutional model. They also show what are the red-lines in assessing rule of law situation are. Institutional arrangement cannot introduce (legalise) complete arbitrariness of public authorities, procedures need to ensure that the law will be correctly applied, and political goals will not overcome nor undermine the legal rules.

2.2.1. Institutional practices

Institutional practices deal with institutional arrangements which aim at securing and guaranteeing the practical application of the rule of law, e.g. with respect to legality or separation of powers. Institutions are perceived as guarantors of the law being correctly adopted, applied and enforced – so that the law will rule. The institutional aspect is strongly underlined in the context of transitional societies – what kind of institutions need to be (re)established in order to secure rule of law. Rule of law as an ‘institutional ideal’ concerns ‘adequacy of legal institutions to prevent the law turning into a sheer tool of domination, a manageable servant to political monopoly and instrumentalism.’42

On the one hand, the rule of law needs to be oriented at achieving this normative aim, on the other however existing context might need to be taken into account, thus prescribing that one homogeneous institutional model will most probably not meet those expectations.43 Ignoring legal, political or cultural context might lead to a situation when institutions look good on paper, but do not fulfil their ‘rule of law obligations’ in practice. In consequence it might even lead to

40 Ibid. Cf Marcus Klamert and Dimitry Kochenov, ‘Article 2 TEU’ in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), The Treaties and the Charter of Fundamental Rights – A Commentary (OUP 2019) 22 (hereafter Klamert and Kochenov, ‘Article 2 TEU’). Codification does not mean full constitutionalisation, however: Andrew Williams, ‘Taking values seriously: Towards a philosophy of EU law’ (2009) 29 OJLS 549; Andrew Williams, The Ethos of Europe (CUP 2009). 41 Konstadinides, The Rule of Law in the European Union (n 26) 28; Dimitry Kochenov, ‘The EU Rule of Law: Cutting Paths through Confusion’ (2009) 2 Erasmus L Rev 5. 42 Gianluigi Palombella, ‘The Rule of Law as an Institutional Ideal’ in Gianluigi Palombella and Leonardo Morlino (eds), Rule of Law and Democracy: Inquiries Into Internal and External Issues (Brill 2010) 4 (hereafter Palombella, ‘The Rule of Law as an Institutional Ideal’). 43 ‘We can hardly determine a priori a universal list of institutional prescriptions for the rule of law’ – Martin Krygier, ‘The rule of Law: Legality, Teleology, Sociology’ in Gianluigi Palombella and Neil Walker (eds), Re-locating the Rule of Law (Hart Publishing 2008) 47.


structural ineffectiveness regarding law enforcement.44 When analysing institutional perspective of the rule of law practices, the proper goals need to outbalance the ends.45

Context-dependent efficiency of the rule of law institutional ideal does not mean however that diverse constitutional systems and traditions allow for different – lower or higher – standards in the EU context.46 Laurent Pech speaks of the presence of ‘shared significant traits’,47 whatever the perceived differences might be between the particular systems. ‘The rule of law similarly requires that on the plane of legal institutions a peculiar scheme of legality be available, that can be implemented, in diverse modes, through different contexts’.48 In domestic and supranational context rule of law requirements rely on such features as consistency, transparency or even legitimacy.49 The role of the institutions is to ensure that those assumptions be fulfilled.

Legality. Adriaan Bedner treats the institutional aspects of rule of law mainly as ‘guardian institutions’ – independent judiciary and other guardian institutions such as national human rights institutions.50 Those guardians aim first and foremost at securing legality – both in Member States and in the European Union. The relation between the institutions and values (rule of law) might play a crucial role in securing the latter. Their establishment cannot be however perceived as sufficient to secure rule of law.51 It is It’s rather a starting point.

One of the expressions of the institutional ideal of the rule of law was offered by Gianluigi Palombella, who underlined the need for a distinction between jurisdictio (‘the law untouchable by the day-to-day rules running the legal system and removed from the ambit of the purview of the sovereign’) and gubernaculum (‘of the general rule-making power’) in order to effectively limit public power.52 Gubernaculum ‘embraces instrumental aims and governmental policies’, however jurisdictio does not remain at the disposal of the sovereign.53 In the national context, law ‘unavailable’ for ordinary legislation is often perceived as the highest law of the land, i.a. the constitution. Such a divide is however often undermined if the

44 Michael Ioannidis, ‘Weak Members and the Enforcement of EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017). 45 Rachel Kleinfeld Belton, ‘Competing definitions of the rule of law’ (2005) Implications for Practitioners Carnegie Papers 27. 46 Ronald Janse, De renaissance van de Rechtsstaat (Open Universiteit 2018) (hereafter Janse, De renaissance van de Rechtsstaat). Cf Konstadinides, The Rule of Law in the European Union (n 26) 22. 47 Laurent Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (28 April 2009) Jean Monnet Working Paper Series No. 4/2009, 70 (hereafter Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’). 48 Palombella, ‘The Rule of Law as an Institutional Ideal’ (n 42) 28. 49 Melanie Smith, ‘The Evolution of Infringement and Sanction Procedures: Of Pilots, Diversions, Collisions, and Circling’ in Damian Chalmers and Anthony Arnull (eds), The Oxford Handbook of European Union Law (OUP 2015). 50 Bedner, ‘An Elementary Approach to the Rule of Law’ (n 25) 67. 51 ‘It would indeed be a mistake to think of concrete institutions and practices solely as instruments in the realisation of certain ideals or moral values – in whatever form they are expressed – whose justification is given independently of these institutions and practices.’ Adams, Hirsch Ballin and Meuwese, ‘The Ideal and the Real’ (n 28) 13. 52 Palombella, ‘The Rule of Law as an Institutional Ideal’ (n 42). See also Martin Krygier, ‘Inside the Rule of Law’ (2014) 3 Rivista di filosofia del diritto, 77; Dimitry Kochenov, ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’ (2015) 34 Yearbook of European Law 82 (hereafter Kochenov, ‘EU Law without the Rule of Law’). 53 Palombella, ‘The Rule of Law as an Institutional Ideal’ (n 42) 18.


highest law undergoes constant amendments, i.a. constitution of Hungary, which became a purely political tool. At the EU level it is even more challenging to define jurisdictio, especially in the light of principle of autonomy of the EU law.54

The debate about the rule of law in the EU has been often limited to the requirement of legality.55 The basic specificities of the EU law were established by the Court of Justice in its case law.56 The principles of direct effect and primacy of EU law57 secured with obligation to compensate for violation of the EU law, establish a framework, in which the EU law can exist and develop.58 EU law is also governed by principles of loyalty, conferral and subsidiarity. It is however argued that in the EU the principle of proportionality should also be considered as a part of the rule of law. It applies to both legislative and administrative measures, adopted at the EU and national level within the scope of the EU law.59 However, it is commonly underlined that the answer to the question regarding compliance of the EU itself with the principle of legality might not be so obvious.60 In particular the European Monetary Union causes doubts regarding compliance with the principle of legality, such as inaccessibility of legal sources, which were not published in all official (relevant) languages (mainly only in English).61 Furthermore, the status of Memoranda of Understanding is questioned from the perspective of principle of conferral62 and broadening the ECB competences raises questions regarding compliance with Article 123(1) TFEU.63 Finally, the euro crisis led to the introduction of emergency policies, of extra-legal character.64

Positive institutional practices to a great extent depend on procedural guarantees such as legal certainty and protection of legitimate expectations. Those values need to be protected by the

54 Kochenov, ‘EU Law without the Rule of Law’ (n 52) 74. Gianluigi Palombella, ‘Beyond Legality—before Democracy: Rule of Law Caveats in the EU Two-Level System’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) (hereafter Palombella, ‘Beyond Legality—before Democracy’). 55 Kochenov, ‘EU Law without the Rule of Law’ (n 52) 74-96 (and the literature cited therein). 56 See, especially, Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47). Cf Janse, De renaissance van de Rechtsstaat (n 46); Maria Luisa Fernández Esteban, The Rule of Law in the European Constitution (Kluwer Law International 1999) (hereafter Fernández Esteban, The Rule of Law in the European Constitution). 57 Cf Justin Lindeboom, ‘Why EU Law Claims Supremacy’ (2018) 38 OJLS 328. 58 András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017). 59 Konstadinides, The Rule of Law in the European Union (n 26) 98. 60 ‘It follows that the question of whether a system is committed to legality does not necessarily have to be answered in the notorious “all or nothing” fashion. Possibly, the weight given to legality is relatively weak in certain quarters.’ Alexander Somek, ‘Is Legality a Principle of EU Law?’ in Stefan Vogenauer and Stephen Weatherill (eds), General Principles of Law. European and Comparative Perspectives (Hart Publishing 2017) 57 (hereafter Somek, ‘Is Legality a Principle of EU Law?’). 61 Claire Kilpatrick, ‘One the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’ (2015) 35(2) Oxford Journal of Legal Studies 333; Fabian Amtenbrink and René Repasi, ‘Compliance and Enforcement in Economic Policy Coordination in EMU’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017) 145-181. 62 Somek, ‘Is Legality a Principle of EU Law?’ (n 60) 73. 63 Ibid, 71. 64 Nicole Scicluna and Stefan Auer, ‘From the rule of law to the rule of rules: technocracy and the crisis of the EU governance’ (2019) 42(7) West European Politics 1436.


law in order to implement the rule of law in practice and in consequence to ‘restrict the power’.65 Some aspects of those values are codified, i.a. in the Charter.

Separation of powers. The second aspect of the institutional practices relies on the separation of powers, which guarantees judicial independence. The main idea of the separation of powers is to limit different branches in order to prevent possible abuse of absolute (not separated or unified) power. Judicial independence is perceived as an ‘integral part of the fundamental democratic principle of the separation of powers’.66 As the Venice Commission stated in the Rule of law Checklist: ‘distribution of powers among the different State institutions (…) should be well-adjusted through a system of checks and balances.’67

In May 2019, vice president of the European Commission in his letter to Romanian authorities elaborated on details dealing with understanding of separation of powers in Member States. Frans Timmermans stated that recent amendments threaten the requirement of ‘loyal cooperation between different powers of the state’, which could imply a prohibition of undermining others legal and factual authority within the state.68

Separation of powers together with independence of judiciary should be able to provide a tool allowing to secure legality – review of legality and constitutionality of ordinary legislation. It also requires procedural guarantees regarding access to a court and effective judicial review with effectively implemented rulings. Furthermore, the separation of powers ensures that no one will be a judge in his own cause, which ensures the generality of the law and equality before the law.69

The special role of the judiciary in upholding the rule of law has been broadly accepted. The CJEU case-law regarding judicial independence has been for a long time perceived as underdeveloped.70 It has however changed due to the latest rule of law challenges in EU Member States. The Court has played the pivotal role in the articulation of the rule of law principle in contemporary EU law.71 In 2018 the Court in the ASJP case linked the value of rule of law and the requirement of judicial independence and stated that ‘principle of effective

65 ‘Observance of the Rule of Law enhances certainty, predictability and security both among individuals, and between citizens and government, as well as restricting governmental discretion. It restricts the power’: Sionaidh Douglas-Scott, ‘Justice, Injustice and the Rule of Law in the EU’ in Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds), Europe’s Justice Deficit? (Hart Publishing 2015) 59. 66 Venice Commission, Rule of law checklist, para 74. 67 Ibid para 39. 68 Barbara Grabowska-Moroz, ‘Rule of law framework – is it time for Romania?’ (RECONNECT blog, 5 June 2019) <https://reconnect-europe.eu/blog/grabowska-moroz-rule-of-law-romania-timmermans/> accessed 1 February 2020. 69 Geranne Lautenbach, Rule of law concept, The Concept of the Rule of Law and the European Court of Human Rights (OUP 2013). 70 Case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg (2006) ECR I-08613; Matej Avbelj, ‘Judges Depending on Judges: A Missing Brick in the CJEU Jurisprudence on Judicial Independence’ (Verfassungsblog, 10 July 2019) <https://verfassungsblog.de/judges-depending-on-judges/> accessed 10 February 2020. 71 Peter Van Elsuwege and Femke Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order: A Constitutional Role for the Court of Justice’ (2020) 16 EUConst 8 (hereafter Van Elsuwege and Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order’); Dimitry Kochenov and Petra Bárd, ‘The Last Soldier Standing? Courts versus Politicians and the Rule of Law Crisis in the New Member States of the EU’ (2019) 1 European Yearbook of Constitutional Law 243.


judicial protection is a general principle of EU law’.72 By stating that national courts which even potentially might apply EU law, are covered with this principle and need to meet the EU standards of independence.

It made rule of law enforceable through Article 19 TEU,73 which additionally became an objective principle applicable to domestic judiciary.74 As a consequence, the Court found that the organisation of the national judiciaries is not exclusively a matter for each of the Member States,75 since Article 19 TEU limits states’ discretion with respect to judicial independence. Furthermore, judicial independence is essential for judicial cooperation expressed in Article’s 267 TFEU procedure.76 Standard expressed in ASJP has been later implemented in new case-law.77

The main problem with institutional approach to the rule of law is that it risks ‘shallow institutionalisation’ of the rule of law norms and practices in CEE countries78 resulting in ‘façade’ institutions representing forms without substance. That is why Bojan Bugarič advises to avoid ‘institutional fetishism’, also in relation to rule of law implementation.

2.2.2. Procedural practices

The procedural aspect of the rule of law was underlined by Jeremy Waldron. It deals with those elements of the rule of law which guarantee fair procedural commitments relevant when the law is about to be applied in individual cases. Waldron closely links procedural requirements with certain institutional arrangements, such as independent courts. Mixtures of those two (institutions and supporting procedures) are able to provide an ‘impartial forum where the law can be judged according to legal parameters.’79 Furthermore, Waldron perceives it a tool of securing human dignity and allowing for active engagement in the administration of public affairs.80

72 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas (2018) ECLI:EU:C:2018:117, para 35. Cf Laurent Pech and Sébastien Platon, ‘Judicial independence under threat: The Court of Justice to the rescue in the ASJP case’ (2018) 55 CMLRev 1836 (hereafter Pech and Platon, ‘Judicial independence under threat’). 73 ‘The Court effectively and positively transformed the rule of law into a legally enforceable standard to be used against national authorities to challenge targeted attacks on national judiciaries’: Pech and Platon, ‘Judicial independence under threat’ (n 72) 1836. 74 ‘Article 19(1) TEU applicable in abstracto, as an objective principle, to national measures of a general scope which target the judiciary’ – ibid. 75 Matteo Bonelli and Monica Claes, ‘Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary. ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ (2018) 14 European Constitutional Law Review 623 (hereafter Bonelli and Claes, ‘Judicial serendipity’). 76 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas (2018) ECLI:EU:C:2018:117 para 43; Editorial Comments, ‘2019 shaping up as a challenging year for the Union, not least as a community of values’ (2019) 56 Common Market Law Review 11. 77 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586, Case C-619/18 Commission v Poland [2019] ECLI:EU:C:2019:531; paras 46-50; Case C-192/18 Commission v Poland [2019] ECLI:EU:C:2019:924, paras 98-106. Cf Van Elsuwege and Grimmelprez, ‘Protecting the Rule of Law in the EU Legal Order’ (n 71). 78 Bojan Bugarič, ‘A crisis of constitutional democracy in post-Communist Europe: “Lands in-between” democracy and authoritarianism’ (2015) 13(1) ICON 233. 79 Franco Peirone, ‘The Guardian Of The Law. The EU Rule Of Law And The Member States’ Corruption Challenges’ (2018) Jean Monnet Working Paper 6/18, 55 (hereafter Peirone, ‘The Guardian Of The Law’). 80 Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ (2010) NYU School of Law, Public Law Research Paper No. 10-73, 9.


Procedural elements deal with a right to be heard, presenting evidence, right to hear reasons of a reached decision or a right of appeal.81 Those elements are important aspects of CJEU case-law regarding the rule of law, which covers the rights of defence,82 the right to be heard,83 the right of access to the file84 and the obligation to state reasons. It shows that procedural elements of the rule of law can be extended beyond the state.85

The close relation between institutional and procedural requirements ensure the main elements of rule of law, such as legality. The CJEU case-law regarding judicial independence represents how two requirements are supplemented and developed. The requirements regarding judicial independence resulting from Article 19 TEU expressed by the Court in ASJP ruling, have been later complemented with procedural requirements. In LM the CJEU specified the standard of judicial independence by adding a section regarding disciplinary regime regarding judges. The Court found that such a regime ‘must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.’ The ‘disciplinary standard’ refers mainly to procedural requirements which will safeguard rights under Article 47 and 48 of the Charter (i.a. rights of the defence).86

The procedural aspect of the rule of law provides ‘an opportunity for the party concerned to voice her concern and to obtain a response thereto’, ‘the right to give and receive an explanation (in law as well in politics).’87 It allows the law to fulfil its function and introduces new actors to the rule of law scene – private parties. Such functional aspect can be recognised i.a. in interpretation of Article 19 TEU provided by the Court in ASJP,88 and usage of the ‘sphere of the EU law’ as a factor allowing to apply Article 19 TEU. As stated by Bonelli and Claes, relevant in this interpretation ‘are not facts of the case but the function of national courts as part of the European judiciary’.89 ASJP is also extremely interesting methodologically, as it shows how principles are established by the Court. It appeared to be a right case to lay down ‘a principle’, which was later on applied in other (more sensitive) cases.90 In ASJP the way how the case was decided was less relevant than the method used to interpret the existing Treaty

81 Ibid 6. 82 Case C-27/09 P France vs. People's Mojahedin Organization of Iran (2011) ECLI:EU:C:2011:853, paras 65-66. 83 Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (2010) ECLI:EU:C:2010:512, para 92. 84 Case C‑300/11 ZZ v Secretary of State for the Home Department (2013) ECLI:EU:C:2013:363. 85 Sanne Taekema, ‘The Procedural Rule of Law: Examining Waldron's Argument on Dignity and Agency’ (2013) 21 Annual Review of Law and Ethics: The Rule of Law-Principle 143. 86 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586, para 67. Cf Theodore Konstadinides, ‘Judicial Independence and the Rule of Law in the Context of Non-execution of a European Arrest Warrant: LM’ (2019) 56 CMLRev 743; Michał Krajewski, ‘Who Is Afraid of the European Council? The Court of Justice’s Cautious Approach to the Independence of Domestic Judges’ (2018) 14 EUConst 792; Petra Bárd and Wouter van Ballegooij, ‘Judicial Independence as a Pre-Condition for Mutual Trust? The ECJ in Minister for Justice and Equality v LM’ (2018) 9 New Journal of European Criminal Law 353. See also Michal Dorociak and Wojciech Lewandowski, ‘A Check Move for the Principle of Mutual Trust from Dublin: The Celmer Case’ (2018) 3 European Papers 857. 87 András Sajó, ‘The Rule of Law as Legal Despotism: Concerned Remarks on the Use of “Rule of Law” in Illiberal Democracies’ (2019) 11 Hague Journal on the Rule of Law 375 (hereafter Sajó, ‘The Rule of Law as Legal Despotism’). 88 Interpretation of Article 19 in ASJP is ‘functional necessity underpinning the legitimacy of EU decision-making’: Pech and Platon, ‘Judicial independence under threat’ (n 72) 1841. 89 Bonelli and Claes, ‘Judicial serendipity’ (n 75) 631. 90 Tomasz Tadeusz Koncewicz, ‘On the Rule of Law Turn on Kirchberg – Part I: What and How has the Court of Justice Been Telling Us About the EU Constitutional Essentials?’ (Verfassungsblog, 3 August 2019) <https://verfassungsblog.de/on-the-rule-of-law-turn-on-kirchberg-part-i/> accessed 10 March 2020.


tools (i.a. principle of effective judicial protection). Language applied by the Court allowed for the operationalization of the rule of law expressed in Article 2 TEU in one its aspect – requirement of judicial independence – by functional interpretation of general obligation under Article 19(1) TEU.

Independent institutions and adequate procedures are able to ensure effective judicial review and respect for fundamental rights. It was confirmed by the CJEU that the possibility for individuals to seek effective judicial review is ‘of the essence of the rule of law’ in the Union.91 In the light of the recent CJEU case-law, judicial protection was marked as a ‘meta-norm’, which is capable of ‘overriding conflicting primary EU law that would preserve the discretion of the political EU institutions or the procedural autonomy of the Member States’.92

The Commission’s communication (2014) referred to the concept of the EU as a ‘union based on the rule of law’, which means that that the acts of the EU institutions ‘are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights’.93 Such a standard indicates that individuals are entitled to effective judicial protection of the rights they derive from the Union legal order. In consequence, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.

2.2.3. Political practices

Political practices regarding rule of law – adoption, enforcement and implementation of law – represent often a political culture in a given legal system. Joseph Raz argued that rule of law virtues can be achieved only in a ‘country with a democratic culture and a culture of legality’ and that it depends on ‘cultural and institutional presuppositions’.94 Also Joseph Weiler underlined that the Western compliance with the rule of law ‘rests on a political culture that internalises, especially public authorities, obedience to the law rather than to expediency.’95 He underlined that this makes significant EU intervention in this domain at the Member State level difficult.96 András Sajó found that rule of law is ‘more of a cultural practice (a set of practices) than anything else’.97 That is why limiting rule of law implementation to a ‘shallow institutionalisation’ will probably gain little success.98

91 Case C-72/15PJSC Rosneft Oil Company v Her Majesty's Treasury and Others (2017) ECLI:EU:C:2017:236, para 73. 92 Volker Roeben, ‘Judicial Protection as the Meta-norm in the EU Judicial Architecture’ (2019) 12(1) Hague Journal on the Rule of Law 29-62. 93 Annexes to: Communication from the Commission to the European Parliament and the Council: A new EU Framework to strengthen the Rule of Law (2014) COM/2014/0158l. Annex I: The Rule of law as a foundational principle of the Union, 2. 94 Joseph Raz, ‘The Politics of the Rule of Law’ in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP 1994) 370, 378. 95 Joseph H. H. Weiler, ‘The political and legal culture of European integration: An exploratory essay’ (2011) 9(3-4) ICON 690. 96 Joseph H.H. Weiler, ‘Epilogue: Living in a Glass House: Europe, Democracy and the Rule of Law’ in Carlos Closa and Dimitry Kochenov (eds) Reinforcing the Rule of Law Oversight in the European Union (CUP 2016) 313 (hereafter Weiler, ‘Epilogue: Living in a Glass House’). 97 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 372. 98 Paul Blokker, ‘EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections in Carlos Closa, Dimitry Kochenov (eds) Reinforcing the Rule of Law Oversight in the European Union (Cambridge:


It places the discussion about the rule of law outside the purely institutional approach99 and links it with a broader socio-political context. The relation between politics and (rule of) law is quite natural, as the law regulates political processes (such as elections)100, might be however twofold. Politics is being held to follow the law but ‘political issues and political injustice can hardly be solved in a court of justice.’101 On one hand, actions taken by political actors (especially elected ones) may strengthen the law and enhance its legitimacy. On the other hand, however, political decisions and actions might undermine the rule of law. As stated recently by AG Sharpston, disregarding legal obligations by Member States ‘because, in a particular instance, they are unwelcome or unpopular is a dangerous first step towards the breakdown of the orderly and structured society governed by the rule of law which, as citizens, we enjoy both for its comfort and its safety.’102

The tension between rule of law institutions/procedures and politics might rise since the core element of rule of law aims at tempering the public power. However, ‘if leaders attack, denigrate and abuse them, they will be weakened, and this, in turn, will weaken the character of quality of democracy.’103 This brings about the argument that law and politics should be treated separately, especially to avoid political influence on enforcement and implementation of law (i.a. politically motivated criminal proceedings against political opponents).104 Such political influence might be perceived as discriminatory and aiming at achieving particularised gains. The role of the procedure (right to a hearing and obligation to state reasons of a decision) is to be established in such a way to secure against such abuse of law. Such a separation aims at preventing ‘rule of politics’.105

Political engagement of public institutions with the rule of law might be also aimed at guaranteeing that law is being equally enforced or to enhance its legitimacy. Politicisation might be perceived as a counter-balance for ‘juridicisation’. Rule of law crisis in the EU Member States provides number of examples in this respect: the two stories are the sides of the same coin, authoritarians in backsliding governments using the rule of law arguments to defend the purported will of the people.106 Konstadinides perceived ‘gradual politicisation of the rule of law’ as a ‘growing involvement of the EU political institutions in guaranteeing rule-of-law CUP 2016) 249; Jacob van de Beeten, ‘Rule of Law enforcement in the EU: The Limits of the legal enforcement of Values’ (KSLR EU Law Blog, 27 November 2018) <https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=1333> accessed 29 April 2020. 99 ‘[T]he life of the law […] lies outside official institutions as much as, arguable more than, it does within them’ – Martin Krygier, ‘The Rule of Law and ‘the Three Integrations’ (2009) 1 Hague Journal on the Rule of Law 24. 100 Martin Shapiro, ‘Law and Politics: The Problem of Boundaries’ in Gregory A. Caldeira, R. Daniel Kelemen and Keith E. Whittington (eds), The Oxford Handbook of Law and Politics (OUP 2008) 773. 101 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 373. 102 Case C-715/17 European Commission v Republic of Poland (2018) ECR C 112/18 Opinion of AG Sharpston; Case C-718/17 European Commission v Republic of Hungary (2018) ECR C 112/25; Case C-719/17 European Commission v Czech Republic (2019) OJ C 112, para 241. 103 Fareed Zakaria, ‘Democracy is decaying worldwide. America isn’t immune’ (Washington Post, 23 February 2018). 104 Resolution 1950 of the Parliamentary Assembly (2013) Final version – Keeping political and criminal responsibility separate. 105 Joelle Grogan, ‘The Rule of Law, not the Rule of Politics’ (Verfassungsblog, 1 October 2019) <https://verfassungsblog.de/the-rule-of-law-not-the-rule-of-politics/> accessed 1 February 2020. 106 Dariusz Adamski, ‘The Social Contract of Democratic Backsliding in the “New EU” Countries’ (2019) 56 CMLRev 623; Paul Blokker, ‘Populist Constitutionalism and Meaningful Popular Engagement’ (2018) The Foundation for Law, Justice and Society Policy Brief (Centre for Socio-Legal Studies and Wolfson College, University of Oxford).


monitoring and enforcement—thus, portraying the EU as less of a ‘court-centric’ legal system.’107 The story behind the current developments is much more complex that it might seem at the first glance.108

The idea of a ‘political European Commission’109 was perceived as a tool to effectively secure the rule of law – that is to adopt (even inconvenient) political decisions in order to ensure rule of law in EU Member States. On the other was however criticised as overstepping the role of the Commission, whose actions might be perceived as politically motivated,110 which might in longer run lead to a situation when the Commission might lose its neutral status of the ‘guardian of the Treaties’.111 History of Copenhagen criteria and their evaluation within enlargement process might suggest that rule of law might be also perceived as a political benchmark – where historical and social experiences might be of relevance when studying rule of law practices.112 However, as the rule of law has a clear legal meaning and role, the political nature of Commission’s decisions needs to be secured with transparent justification reflecting the decision making process, especially with respect to application of ‘legal tools’ such infringement actions. Otherwise, it will difficult to defend notion of being ‘political’ institution, and not just ‘politically biased’, especially when enforcing (often perceived as vague) rule of law standards.

3. Looking for best rule of law practices at the national level.

According to a Eurobarometer survey published in April 2019, for each of the principles of the rule of law, a large majority of respondents (over 80%) thinks that the situation in their country with regard to the respect of these principles needs at least some improvement.113 Analysis of the rule of law practices often gives an impression that shortcomings are more visible than positive aspects. The situation when the law is obeyed does not bring much attention. The same is with the general notion of the rule of law – until ground-breaking changes were introduced in Hungary since 2010, for the EU institutions and EU scholars, the rule of law issues were not

107 Konstadinides, The Rule of Law in the European Union (n 26) 139. 108 Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 15 EUConst 518. 109 ‘The Commission is political. And I want it to be more political. Indeed, it will be highly political.’ European Commission, 2014. ‘A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: Political Guidelines for the next European Commission’, Strasbourg, 15 July <https://ec.europa.eu/commission/publications/president-junckers-political-guidelines_en> accessed 24 April 2020. 110 Argument of politically motivated actions were expressed by i.a. government of Poland after rule of law framework was initiated – Jan Cienski and Maïa de La Baume, ‘Poland strikes back at EU on media law’ (Politico, 18 January 2016) <www.politico.eu/article/poland-strikes-back-at-eu-on-media-law-frans-timmermans-stepkowski-andrzej-duda/> accessed 24 April 2020. 111 Dawson Mark, ‘Juncker’s Political Commission: Did it Work?’, SIEPS p. 7 <www.sieps.se/en/publications/2019/junckers-political-commission-did-it-work/> accessed 24 April 2020. 112 Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47) 45; Janse, De renaissance van de Rechtsstaat (n 46). 113 Report – Rule of law, Eurobarometer, 7.


sources of inspiration for political or even academic headlines.114 Poland offers a very similar example of a quickly-dethroned poster-child.115

Furthermore, ‘rule of law issues and dynamics differ between countries’.116 On one hand we can face a deliberate strategy aimed at undermining any external control of the government (Poland, Hungary), on the other side of the scale we can see unsolved structural problems undermining the effectiveness of public institutions (Malta). Not only the meaning of the rule of law might vary among Member States, but also the instruments designed to protect those values and principles might be the essence of the problem, due to its ineffectiveness.117 Particular and isolated violation of the law should be contextualised118 in order to assess, within the broader picture, if it undermines the main idea of the rule of law – effective limitation of public power. Sajó argued recently that ‘the legal concept of the [rule of law] is uncertain even if it has enough consistency to find specific violations on formal grounds’.119 On the other hand, practices regarding different rule of law elements (such as those regarding judicial independence) are often interconnected. For instance, institutional arrangements are supplemented with political (unwritten) rules and the final outcome is able to achieve the aim – limit the public power.

3.1. Institutional practices

In order to ensure that public power is limited and controlled, an independent arbiter is required. This function is often secured with the hands of institutions entitled to conduct judicial constitutional review of ordinary legislation. From the rule of law institutional ideal as defined by Palombella, such institutional arrangements allow to secure that gubernaculum (ordinary legislation) remains within the limits of jurisdictio (higher law remaining without the reach for legislator).

Rule of law crisis, both in Hungary and Poland, started with legal and factual capture of respective domestic constitutional courts. Both governments tried to support their attempts with examples from other Member States, arguing that constitutional review is not a rule of law core element existing in each Member State. Hungarian government argued recently that Finland does not have a constitutional court at all, which makes it difficult to assume that Finland meets the EU rule of law standards (and in consequence that it is legitimised to take

114 Zoltán Szente, ‘Challenging the Basic Values—the Problems with the Rule of Law in Hungary and the Failure of the European Union to Tackle Them’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) 456; Laszlo Sólyom, ‘The Rise and Decline of Constitutional Culture in Hungary’ in Armin von Bogdandy and Pál Sonnevend (eds) Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) 5. 115 Wojciech Sadurski, Polish Constitutional Breakdown (OUP 2019). Cf Kriszta Kovács and Kim Lane Scheppele, ‘The Fragility of an Independent Judiciary: Lessons from Hungary and Poland – and the European Union’ in Peter H. Solomon Jr. and Kaja Gadowska (eds), Legal Change in Post-Communist States: Progress, Reversions, Explanations (Ibidem Verlag 2019) 55. 116 Adriaan Schout and Michiel Luining, ‘The missing dimension in rule of law policy From EU policies to multilevel capacity building’, Clingendael Instituut Report January 2018, 12; Jakab and Kochenov, ‘Introductory Remarks’ (n 20) 5. 117 Konstadinides, The Rule of Law in the European Union (n 26) 22. 118 Peirone, ‘The Guardian Of The Law’ (n 79) 73 119 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 376.


part in debate about Hungarian rule of law backsliding).120 The Finnish mechanism aiming at securing rule of law is based on the Constitutional Law Committee, which holds Finnish powers accountable by reviewing domestic legislation. Being a part of Eduskunta (parliament) it consists of at least 17 MPs, it provides opinions on the constitutionality of the draft legislation. Despite those opinions being non-binding, the Committee is perceived as independent and its opinions are in practice treated as obligatory. Under Article 74 of the Constitution, the Committee must review the draft legislation from the perspective of its conformity with the international human rights treaties.121 Despite lack of status of a judicial authority, Finnish commission is capable to provide independent expertise regarding drafted legislation. Public trust to such non-judicial authority might strengthen their role to a greater extent compared with judicial body perceived by the public as non-independent.

The Polish government often referred to the Dutch prohibition of constitutional judicial review.122 It completely ignored the broader constitutional picture of the Netherlands (political traditions in particular) as well as exceptions to the above rule dealing with the review of international treaties. Despite the fact the Dutch Constitution is not perceived as ‘strong normative document’, it provides the main actors with ‘common language which makes it possible to communicate and debate about the (…) values that seem to be constitutive for a polity’.123 Proposals to introduce constitutional judicial review, at least within a limited scope, have been submitted and discussed on different occasions.124 The main guarantee that the public powers will not be abused lies with the political consensus and need to negotiate any legislative drafts. Also in France, the role of the Constitutional Council (strengthened in 2008)125 is perceived more as ‘a judicial and benevolent advisor to the executive than a real source of revival for the checks and balances model: it more often helps the government to revise and rewrite bills than to block the global decision-making’.126 From the rule of law perspective, it is essential that such constitutional bodies not only exist, but also that their powers are not arbitrarily limited in order to gain political results.127

120 Zoltan Kovacs, ‘PM Orbán: “When they question the rule of law, they step on our honor”’ (About Hungary, 1 October 2019) <http://abouthungary.hu/blog/pm-orban-when-they-question-the-rule-of-law-they-step-on-our-honor/> accessed 10 February 2020; Daniel Boffey, ‘Hungary’s far-right government vilifies Finland over rule of law inquiry’ (The Guardian, 13 August 2019) <www.theguardian.com/world/2019/aug/13/hungary-far-right-government-finland-rule-law-inquiry> accessed 10 February 2020. 121 Rene Uruena, ‘Domestic Non-Judicial Institutions in the Development of the International Rule of Law’ in Machiko Kanetake and Andre Nollkaemper (eds), The Rule of law at the National and International Levels. Contestations and Deference (Hart Publishing 2018) 155-156. 122 According to Article 120 of the Dutch Constitution, the provision holds that the ‘constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts’. 123 Maurice Adams and Gerhard van der Schyff, Constitutional Culture in the Netherlands: A Sober Affair (CUP 2017) 380-381. 124 Maurice Adams and Gerhard van der Schyff, ‘Constitutional Review by the Judiciary in the Netherlands: A Matter of Politics, Democracy or Compensating Strategy?’ (2006) 66 ZaöRV 399; Jurgen C.A. de Poorter, ‘Constitutional Review in the Netherlands: A Joint Responsibility’ (2013) 9(2) Utrecht Law Review 103. 125 The Council can declare a whole legislative act or its part unconstitutional – in the light of the Constitution or Declaration of Human Rights. 126 Nicolas Roussellier, ‘France and the Fifth Republic. Constitutional Crisis or Political Malaise?’ in Mark Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018) 221. 127 Opinion on questions relating to the appointment of Judges of the Constitutional Court (Slovakia), adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017) CDL-AD(2017)001-e.


Judicial Councils. Among basic institutional solutions, those relating to guarantees of judicial independence are of major importance in institutional approach to the rule of law. The existence of judicial councils is often perceived as a crucial guarantee thereof. Despite the lack of one common model of judicial councils, numerous aspects of judicial councils have been discussed by academia128 and international organisations.129 It has been recommended that the majority of members (judges) shall be appointed by their peers, which may however create a risk of ‘excessive corporatism’. Especially in transitional societies councils might be perceived as closed bodies protecting members of judiciary against effective accountability.130 On the other hand, excessive political influence of appointments of judges might however raise doubts regarding judicial independence. In Germany for instance appointment of judges to a great extent remains a competence of politicians, both at regional and federal level.131 At the same time such a situation ‘is not perceived as giving rise to much opportunity for abuse because of the federal structure of the German judicial system.’132 Amendments regarding Bulgarian Supreme Judicial Council have been evaluated by the Venice Commission, which recommended that at least half of the members should be chosen by the judiciary.133 Similarly in the opinion on amendments regarding Polish National Council for the Judiciary, the Venice Commission found that the election of the 15 judicial members of Council (out of 25 members in total) by the Polish Parliament will lead to a ‘far reaching politicisation of this body’.134 International soft-law standards are swiftly becoming more and more rigid entering the ECt.HR case-law and making it at times difficult to distinguish ‘soft’ from ‘hard’-law standards.135 It is thus not surprising that when the issue of National Council for the Judiciary reached the Court of Justice as a result of preliminary reference, AG Tanchev to a great extent relied on soft law standards136 and found that new regulations ‘may be considered to further impair the NCJ’s independence from the legislative and executive authorities.’137 The Court of Justice decided the case without reference to soft law standards and established its own test which covers such factors as: reduction of four-year term of office of the previous judges-members of the Council; 23 out of

128 David Kosař, ‘Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe’ (2018) 17(7) German Law Journal 1567. 129 Report of the Special Rapporteur on the independence of judges and lawyers, 2 May 2018, A/HRC/38/38; Opinion no.10 (2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society. 130 David Kosař, Perils of Judicial Self-Government in Transitional Societies (CUP 2016) 398-402. 131 Marieluise Beck, ‘Report: Threats to the rule of law in Council of Europe member States: asserting the Parliamentary Assembly’s authority’ (18 February 2015) Doc. 13713 (hereafter Beck, ‘Threats to the rule of law’). 132 Ibid. 133 Opinion on the Judicial System Act (Bulgaria), adopted by the Venice Commission at its 112th Plenary Session (Venice, 6-7 October 2017) CDL-AD(2017)018-e, para 112. 134 Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts (Poland), adopted by the Commission at its 113th Plenary Session (Venice, 8-9 December 2017) CDL-AD(2017)031-e, para. 130. 135 Oana Ştefan, ‘Soft Law and the Enforcement of EU Law’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) 200. 136 Joined Cases C-585/18, C-624/18 and C-625/18 A.K.(C-585/18) v Krajowa Rada Sądownictwa; and CP (C-624/18) DO (C-625/18) v Sąd Najwyższy (C-624/18 and C-625/18) ECLI:EU:C:2019:982, Opinion of AG Tanchev paras 123-129. Cf Mathieu Leloup, ‘An Uncertain First Step in the Field of Judicial Self-Government’ (2020) 16 EUConst 1 (hereafter Leloup, ‘An Uncertain First Step in the Field of Judicial Self-Government’). 137 Ibid, para 135.


25 members are elected by legislature and executive; potential for the irregularities.138 Application of the CJEU ruling by domestic court139 resulted, unfortunately, in the introduction of legal provisions which limit the powers of the courts to verify judges’ appointment procedure, in which NCJ was involved, against the wording of the CJEU ruling.140

The Prosecutor Office. Not only the judiciary, but also the prosecutor office plays a crucial role for ensuring that the law will be implemented and the rule of law preserved. There is, however, no one single model of the prosecution service in Europe, especially with respect to securing prosecutors’ independence. In particular, the possibility to issue instructions by political authorities was recognised on many occasions as a threat to prosecutors’ independence, and in consequence for a right to a fair trial. Safeguards against possible abuse in this respect might be of political141 or procedural142 nature. Relying solely on a personal sense of independence might be however not enough to secure against abuse of powers. The role of the prosecutor's office might need to be reviewed in the light of the recent CJEU case-law on standards issuing European Arrest Warrant.143

Recent socio-political developments in Malta, brought the international attention to rule of law arrangements, including the independence of prosecutor office. After assassination of investigative journalist Daphne Caruana Galizia in 2017, national attempts to conduct an effective investigation were facing new challenges, which caused justified questions regarding domestic institutional arrangements which would allow for effective fight with corruption. The Parliamentary Assembly of the Council of Europe underlined the need to introduce ‘fundamental, holistic reform’ aimed at ‘subjecting the office of Prime Minister to effective checks and balances’.144 The Committee report stated even that ‘if Malta cannot put its own house in order, then European institutions must intervene’.145 The PACE findings were to a great extent based on the previous Venice Commission opinion and GRECO evaluation report. The Venice Commission found that the Prime Minister is at the centre of power and other actors (President, Parliament, Cabinet of Ministers, Judiciary, Ombudsman) have too weak an institutional position to provide sufficient checks and balances.146 The wide powers of

138 Joined Cases C-585/18, C-624/18 and C-625/18 A. K. and Others v Sąd Najwyższy (2019) ECLI:EU:C:2019:982 para 143. 139 Judgment of the Supreme Court of 5 December 2019, <http://www.sn.pl/aktualnosci/SiteAssets/Lists/Komunikaty_o_sprawach/AllItems/III-PO-0007_18.pdf> accessed 10 February 2020. 140 Joanna Berendt, ‘Polish Government Pushes Legislation to Tighten Control Over Judges’ (New York Times, 21 December 2019) <https://nyti.ms/2EGDp6l> accessed 12 February 2020. 141 Beck, ‘Threats to the rule of law’ (n 131) para 44. 142 Report on European Standards as regards the Independence of the Judicial System: Part II – the Prosecution Service – Adopted by the Venice Commission – at its 85th plenary session (Venice, 17-18 December 2010) CDL-AD(2010)040-e, 11-12. 143 Laure Baudrihaye-Gérard, ‘Can Belgian, French and Swedish prosecutors issue European Arrest Warrants? The CJEU clarifies the requirement for independent public prosecutors’ (EU Law Analysis, 2 January 2020) <https://eulawanalysis.blogspot.com/2020/01/can-belgian-french-and-swedish.html> accessed 12 February 2020. 144 Committee on Legal Affairs and Human Rights report, ‘Daphne Caruana Galizia’s assassination and the rule of law in Malta and beyond: ensuring that the whole truth emerges’ (2019) Doc 14906, para 33. 145 Ibid, para 49. 146 Opinion on Constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement, adopted by the Venice Commission at its 117th Plenary Session (Venice, 14-15 December 2018) CDL-AD(2018)028-e, para 143.


appointments that the Prime Minister enjoys, make this institution too powerful and create a serious risk for the rule of law.147 The recommendations offered by the Venice Commission (rules on judicial appointments, independence of the head of prosecutor office, powers of parliament) would not, according to VC opinion, ‘abandon Malta’s legal traditions’, however constitutional changes ‘should be accompanied by adequate transitional arrangements and adopted as the result of a process of wide consultation in society.’148 Institutional analysis of constitutional arrangement provided by the Venice Commission was further detailed with numerous procedural issues regarding central executive institutions and law enforcement agencies involved in fighting against corruption.149 The Maltese case shows how limited checks and balances can undermine effective implementation of law, i.a. conducting criminal investigation. This understanding has made its way into EU law the Prosecutors Cases, where the CJEU clarified that absolute organizational / structural independence was required for the public prosecutors to be able to issue European Arrest Warrants.150 Hungarian authorities at the same time offered a position arguing that checks and balances ‘has nothing to do either with the rule of law or democracy’.151 Meanwhile, the European Parliament urged the Commission to introduce Rule of law Framework with regards to Malta,152 whereas it is also argued that a cautious approach needs to be adopted.153

3.2. Procedural practices

Some of the rule of law elements, referring to institutional requirements which secure that the law is being obeyed, in order to function effectively need procedural background which will support implementation of their tasks.

Effective judicial review. The obligation to ensure effective judicial review needs to assume the enforcement of the courts’ rulings. The Spanish amendments adopted in 2015, analysed by the Venice Commission in 2017 provide interesting guidelines in this respect. The law provided for strengthening of the Constitutional Court’s rulings as its decisions were largely ignored by the Catalan independence movements. The new law states that ‘all judgments and decisions of the Constitutional Court shall be considered enforceable titles’. Furthermore, the law established a series of penalty payments should the addressee of a judicial ruling decline to act upon it. The comparative analysis of the Venice Commission led to a conclusion that in the majority of

147 Ibid, para 144. 148 Ibid, paras 145-146. 149 Malta, Evaluation report – Fifth Evaluation Round – Preventing corruption and promoting integrity in central governments (top executive functions) and law enforcement agencies, Adopted by GRECO at its 82nd Plenary Meeting (Strasbourg, 18-22 March 2019) GrecoEval5Rep(2018)6, 53-55. 150 Case C-509/18 PF (Prosecutor General of Lithuania) EU:C:2019:457; Joined cases C-508/18 & C-82/19 PPU OG (Public Prosecutor’s office of Lübeck) and PI (Public Prosecutor’s office of Zwickau) EU:C:2019:456. 151 Német Tamás, ‘Kövér: A fékek és egyensúlyok rendszere hülyeség, azt felejtsék el!’ (Index, 23 October 2019) <https://index.hu/belfold/2019/10/23/kover_laszlo_valasztas_ellenzek_rendszervaltas/> accessed 12 February 2020 – ‘The system of checks and balances, I don't know what you learned about it, but it is bullshit, forget it, it has nothing to do either with the rule of law or democracy (...) the problem is that some take it seriously that a government, which came into being as a result of a democratic expression of the will of the people, needs to be limited. And they believe that democracy is when they constantly shove a stick into the spokes.’ 152 European Parliament resolution of 18 December 2019 on the rule of law in Malta following the recent revelations surrounding the murder of Daphne Caruana Galizia (2019/2954(RSP)). 153 Jakub Jaraczewski, ‘Maltese murder – the next rule-of-law crisis in EU?’ (EU Observer, 6 January 2020) <https://euobserver.com/opinion/147028> accessed 12 February 2020.


European States ‘there are no explicit rules on the consequences of non-compliance with the decisions of the Constitutional Court (…) due to the fact that, in ‘older’ democracies, there have been only a few real cases of non-compliance.’154

According to the Venice Commission’s opinion disregarding a judgment of a Constitutional Court is equivalent to disregarding the Constitution and when a public official refuses to execute a judgment of the Constitutional Court, he or she violates the rule of law principle, the separation of powers and loyal cooperation of state organs.155 The task to contribute to the execution of the Court’s decisions is usually attributed to other state powers. However, the Commission found that the attribution of the power of execution of its decisions to the Constitutional Court ‘strengthens the system of checks and balances as a whole, and in the end, also the independence of the Constitutional Court’,156 underlining however that while not strictly prohibited, it „does not recommend that these powers be attributed to the Constitutional Court.’157 The refusal of the Polish government to publish ruling of the Constitutional Tribunal was found by the Commission as contrary to the rule of law,158 since ‘under the rule of law and in particular the principle of the independence of the judiciary, the validity and force of judgments cannot depend on a decision of the executive or the legislature’.159

‘Emergency’ legislation. Another threat to the existing procedural (ordinary) rules can result from ‘emergency’ legislation which limits the ‘ordinary’ rules and introduces additional powers for public powers (usually for the executive branch). COVID-19 emergency offered abundant food for thought in this regard.160 Derogation of rights and freedoms under Article 15 of the European Convention on Human Rights might be supported with the decision to introduce a state of emergency at domestic level. The state of emergency introduced in France in November 2015 was prolonged. The Venice Commission recommended that power to introduce state of emergency should be limited – on formal and material level – in order to avoid declaration of prolongation when there are no substantial grounds for such decisions to be adopted.161 Such limitations are often analysed in the context of fundamental rights limitations. The bottom line, according to the Venice Commission, is that ‘the right or freedom concerned may not be curtailed in its essence’. Furthermore, the domestic courts must have full jurisdiction to review measures of restriction and derogation for their legality and justification, and for their conformity with the relevant provisions of the ECHR.162 In such a

154 Opinion on the law of 16 October 2015 amending the Organic Law No. 2/1979 on the Constitutional Court (Spain), adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017) CDL-AD(2017)003-e, para 24. 155 Ibid, para 69. 156 Ibid, para 77. 157 Ibid, para 78. 158 CDL-AD(2016)001 Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016) para 143. 159 Opinion on the Act on the Constitutional Tribunal (Poland), adopted by the Venice Commission at its 108th Plenary Session (Venice, 14-15 October 2016) CDL-AD(2016)026-e, para 77. 160 Gábor Halmái and Kim Lane Scheppele, ‘Don’t Be Fooled By Autocracts!’ (Verfassungsblog, 22 April 2020) <https://verfassungsblog.de/dont-be-fooled-by-autocrats/> accessed 9 May 2020. 161 Opinion on the Draft Constitutional Law on ‘Protection of the Nation’ of France adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016) CDL-AD(2016)006-e, para 100. 162 Opinion on the Protection of Human Rights in emergency situations adopted by the Venice Commission at its 66th Plenary Session (Venice, 17-18 March 2006) CDL-AD(2006)015, para 36.


context, broad uncontrolled public powers can constitute a threat to the rule of law, however, they can be corrected by an independent judiciary.163

The role of supranational law. Procedural powers resulting from supranational law can also contribute to the rule of law protection in the European Union. The preliminary reference procedure represents the main example of such powers.164 Preliminary reference procedure is perceived as allowing to review the compatibility of the national law with the EU law through the interpretative aim of the proceedings under Article 267 TFEU. It essentially empowers to rule which readings of a national law are precluded by EU law. Furthermore, the erga omnes effect of preliminary rulings provides a tool of indirect enforcement of EU law.165 That is why the preliminary reference procedure is perceived as a crucial element securing rule of law, first in the Communities, today in the European Union.166

In the rule of law crisis resulting from Italian laws adopted in the Berlusconi era in order to secure the impunity of the Prime Minister, preliminary references from Italian courts did not provide any relief.167 The law adopted in Italy in 2001 aimed at reduction of penalties and statute of limitations for certain categories of crimes (falsification of books), with which PM Berlusconi was charged at that time. Ordinary court made a preliminary reference to the CJEU asking if the amended sanctions can be considered as effective, proportionate and dissuasive as required under the EU company law. The Court of Justice found that new rules need to be applied in the pending case, even if it could be incompatible with the EU directives, otherwise the EU directives would have direct effect on individuals and increase their criminal liability.168 As a result, Berlusconi was acquitted in 2005.

The rule of law backsliding in the EU Member States resulted in numerous preliminary references dealing mostly with judicial independence. It was the revolutionary interpretation of Article 19 TEU in ASJP case,169 in which the Court found that Article 19 TEU ‘entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals’ and obliges Member States to ‘provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law’. As a result, ‘every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by 163 Piet van Reenen, ‘The rule of law in the Netherlands in crisis? (2005) 23/2 Netherlands Quarterly of Human Rights 171. 164 Morten Broberg and Niels Fenger, Preliminary References to the Court of Justice of the European Union (2nd ed, Oxford University Press 2014). 165 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017) 107. 166 J.H.H. Weiler, ‘Deciphering the Political and Legal DNA of European Integration. An Exploratory Essay’ in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of European Union Law (OUP 2012) 154; Somek, ‘Is Legality a Principle of EU Law?’ (n 60) 59. 167 Frank Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States: How Far Are Rome, Budapest and Bucharest from Brussels?’ in Armin von Bogdandy and Pál Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Publishing 2015) 206-208 (hereafter Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States’). 168 Joined cases C-387/02, C-391/02 and C-403/02 Criminal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02) and Marcello Dell'Utri and Others (C-403/02) ECLI:EU:C:2005:270. 169 Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas ECLI:EU:C:2018:117. Cf Pech and Platon, ‘Judicial independence under threat’ (n 72) 1850; Cecilia Rizcallah and Victor Davio, ‘L’article 19 du Traité sur l’Union européenne: sesame de l’Union de droit’ (2020) Rev trim Dr h 122, 156.


that law, meet the requirements of effective judicial protection.’170 On a basis of Article 19 TEU interpretation in ASJP, Laurent Pech and Sébastien Platon offered a ‘Rule of law resistance blueprint’171 relying on Article 19 TEU as ‘expression of the rule of law’. The blueprint provides with respect to domestic judiciary that, i.a.:

• National litigants should systematically request from national courts that they refer questions to the Court of Justice to enable it to rule on whether the national measures at issue in each case can be considered to impair the independence of the members of the relevant national court(s);

National courts should ask the Court of Justice, to review every single mechanism or judicial tests predicated on mutual trust/mutual recognition so to give the Court of Justice the opportunity to decide whether they need to be honoured or revisited in a situation where the relevant national authorities may be said to be engaged in a systemic undermining of ‘the edifices of a democracy governed by the rule of law’.

The first judicial decision of the Court of Justice dealing with the rule of law situation in Poland was a result of reference from the Irish High Court dealing with the European Arrest Warrant issued by the Polish court with respect to the Polish citizens accused of drug offences.172 The LM ruling was criticised because of the threshold of the individual threat to right to fair trial that needs to be proved by the defendant (and by the domestic court) in order to quash the presumption of mutual trust and refuse the Warrant. The case was recently translated into a doctrine of ‘Triangular Solange’ where three actors – EU and at least two Member States – operate in a triangle composition. Spieker argued that such a system ‘allows for an indirect harmonisation of autonomous Member State policies’ and creates indirect pressure in a Member State which does not comply with essential EU standards.173

Triangular Solange scheme174

170 Ibid paras 34, 37. 171 Pech and Platon, ‘Judicial independence under threat’ (n 72) 1850. 172 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586. 173 Luke Dimitrios Spieker, ‘Breathing Life into the Union’s Common Values: On the Judicial Application of Article 2 TEU in the EU Value Crisis’ (2019) 20(8) German Law Journal 1194. 174 Ibid 1194.


The scheme allows to operationalise Article 2 TEU through interpretation of components of Article 47 of the Charter. It does not require any involvement of the European Commission, but empowers the national actors, especially the national courts to play a leading role,175 presenting a slight modification of Armin von Bogdandy’s ‘Reverse Solange’ proposal.176

After the LM ruling numerous references were submitted by the Polish Supreme Court177 and later on by the common courts.178 By asking for interpretation of the EU primary (Article 19 TEU) and secondary law (directive 2000/78) the national courts were asking if the new legislation on Supreme Court and National Council for the Judiciary fits the rules resulting from the EU law.179 One of the first reactions of the Polish government was a motion of the Ministry of Justice submitted to the captured Constitutional Tribunal dealing with the compatibility of Article 267 TFEU with the Constitution.180 Guided by political motives, the Prosecutor General argued that issues relating to the system, form and organisation of the judiciary, as well as judicial procedures, had not been transferred to the EU. Potential consequences of the Tribunal’s ruling are difficult to assess but would definitely make preliminary references more difficult.181 It goes without saying that his would supply a textbook example of a violation of EU law.

A similar pattern of preliminary reference was also followed by the Hungarian court, which referred to the Court questions regarding interpretation of Article 19 TEU and Article 47 of the Charter in the context of Hungarian organisation of judiciary (i.a. excessive powers of the president of the National Judiciary Office).182 The Prosecutor General appealed against the court’s decision to the Supreme Court (Kúria), which found (in a declaratory ruling) that the request for preliminary ruling is illegal. The major concern is that such a Supreme Court’s ruling

175 Luke Dimitrios Spieker, ‘From moral values to legal obligations. On how to activate the Union’s common values in the EU rule of law crisis’ (2018) MPIL Research Paper Series No. 2018-24, 21. 176 Armin von Bogdandy, Carlino Antpöhler and Michael Ioannidis, ‘Protecting EU Values, Reverse Solange and the Rule of Law Framework’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press 2017). For criticism, see, eg, Johanna Croon-Gestefeld, ‘Reverse Solange: Union Citizenship as Detour on the Route to European Rights Protection against National Infringements’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (CUP 2017) 665; Dimitry Kochenov, ‘On Policing Article 2 TEU Compliance – Reverse Solange and Systemic Infringements Analyzed’ (2013) Polish Yearbook of International Law 163. 177 Joined Cases C-585/18, C-624/18 and C-625/18 A.K. (C-585/18) v Krajowa Rada Sądownictwa; and CP (C-624/18) DO (C-625/18) v Sąd Najwyższy (C-624/18 and C-625/18) ECLI:EU:C:2019:982. 178 Joined Cases Miasto Łowicz v Skarb Państwa — Wojewoda Łódzki (C-563/18) and Prokurator Generalny, represented by the Prokuratura Krajowa, formerly the Prokuratura Okręgowa w Płocku, v VX, WW, XV (C-558/18) ECLI:EU:C:2020:234. 179 Stanisław Biernat and Monika Kawczyńska, ‘Why the Polish Supreme Court’s Reference on Judicial Independence to the CJEU is Admissible after all’ (Verfassungsblog, 23 August 2018) <https://verfassungsblog.de/why-the-polish-supreme-courts-reference-on-judicial-independence-to-the-cjeu-is-admissible-after-all> accessed 15 February 2020. 180 Polish Constitutional Tribunal, case no. K 7/18, pending. 181 Stanisław Biernat and Monika Kawczyńska, ‘Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court’ (Verfassungsblog, 26 October 2020) <https://verfassungsblog.de/though-this-be-madness-yet-theres-method-int-the-application-of-the-prosecutor-general-to-the-polish-constitutional-tribunal-to-declare-the-preliminary-ruling-procedure-unconstitut/> accessed 15 February 2020. 182 Dániel G. Szabó, ‘A Hungarian Judge Seeks Protection from the CJEU – Part I’ (Verfassungsblog, 28 July 2019) <https://verfassungsblog.de/a-hungarian-judge-seeks-protection-from-the-cjeu-part-i.> accessed 15 February 2020.


will ‘intimidate judges and prevent them from referring similar questions to the CJEU in the future. In other words, the judgment has no legal, but a chilling effect.’183 Later on disciplinary proceedings were initiated against the judge who decided to refer preliminary questions to the Court of Justice.184 Similar step (summoning judges for interrogation as a witness) was taken by the Polish disciplinary attorney against judges who referred preliminary questions in 2018 (cases C-558/18 and C-563/18).185 Highly disturbing is also the government's reaction to the CJEU preliminary ruling of 19 November 2019 concerning the independence of the National Council for the Judiciary.186 After the referring court (Supreme Court) implemented the ruling and found that the National Council for Judiciary (and Disciplinary Chamber of the Supreme Court) do not meet the requirement of independence,187 the law was amended in accelerated procedure. New law limits the power of the courts to implement the test provided for by the CJEU ruling, which dangerously limits the effectiveness of the EU law.188

3.3. Political practices

Political practices can have different dimensions. In the latest research about ‘political European Commission’ four dimensions of ‘being political’ were selected: ‘This framework identifies four variations of ways in which public bureaucracies may be said to act politically. They may be ideologically political, policy political, organisationally political, and administratively political.’189

The political opposition. Purely internal situations aimed at securing rule of law in practice deals with the status of the political (parliamentary in particular) opposition in a state. Securing an adequate role of the opposition is a mixture of both political practices (and tradition) and procedural (formal) guarantees. Marginalisation of the opposition might lead to a ‘dictatorship of the majority’. It does not only affect the democratic processes but practical application of rule of law, understood as an effective limitation of public power. Checks and balances are secured better when ‘exercise of power includes institutions and individuals with different roles and interests, of different loyalties and convictions’. The same applies to appointments for

183 Petra Bárd, ‘“Am I Independent?” – A Hungarian Judge Asks the CJEU in a Struggle against Judicial Capture’ (RECONNECT Blog, 27 September 2019) <https://reconnect-europe.eu/blog/politics-newep-krum-2/> accessed 15 February 2020. 184 ‘Disciplinary action threatens judge for turning to EU Court of Justice’ (Hungarian Helsinki Committee, 7 November 2019) <www.helsinki.hu/en/disciplinary-action-threatens-judge-for-turning-to-cjeu/> accessed 15 February 2020. 185 Krzysztof Sobczak, ‘Rzecznik prowadzi postępowania w sprawie sędziów, którzy skierowali pytania do TSUE’ (Prawo.pl, 17 December 2018) <www.prawo.pl/prawnicy-sady/postepowania-dyscyplinarne-wobec-sedziow-zadajacych-pytania-tsue,346048.html> accessed 15 February 2020. 186 Joined Cases C-585/18, C-624/18 and C-625/18 A.K. (C-585/18) v Krajowa Rada Sądownictwa; and CP (C-624/18) DO (C-625/18) v Sąd Najwyższy (C-624/18 and C-625/18) ECLI:EU:C:2019:982; Cf Leloup, ‘An Uncertain First Step in the Field of Judicial Self-Government’ (n 136) (for a truly spectacular analysis). 187 Supreme Court resolution of 23 January 2020, case no. BSA I-4110-1/20. 188 Laurent Pech, Wojciech Sadurski and Kim Lane Scheppele, ‘Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”’ (Verfassungsblog, 9 March 2020) <https://verfassungsblog.de/open-letter-to-the-president-of-the-european-commission-regarding-polands-muzzle-law/> accessed 24 April 2020. 189 Neill Nugent and Mark Rhinard, ‘The “Political” Roles of the European Commission’ (2019) 41(2) Journal of European Integration 203, 204.


internal Parliamentary positions.190 In particular, the Speaker should ideally be a unifying figure, acting as an arbiter in internal conflicts, so it is desirable to elect him or her with a qualified majority of votes. Furthermore, appointments to certain top positions outside the Government (such constitutional court or Ombudsman) need to be depoliticised and require political consensus.191 Such a ‘political settlement’ has a broader social impact on strengthening rule of law, since inclusivity and high public participation can limit contestation of law.192

As a result, measures taken by the majority should not affect the Rule of Law and ‘should not be aimed at changing the rules of a democratic ‘game’.’193 It directly shows interconnected nature between rule of law and democracy, since fair elections require adequate legal protection. The relation between majority and opposition should also imply ‘constructive cooperation’ and ‘mutual respect’ between the opposition and the majority.194 The Venice Commission points at numerous good practices in this respect (inviting experts and stakeholders for committee meetings, setting the agenda also by the opposition195).

There were however numerous situations regarded as ‘political rule of law crises’ in the EU Member States. The first major one, the Haider Affair was caused by the fact that FPÖ (Austrian Freedom Party), famous for its anti-Semitic declarations, started negotiations to form a government in January 2000.196 The whole crisis dealt with the FPÖ leader’s statements and not any particular government’s actions or policies. The Portuguese Presidency made a public statement197 on behalf of 14 Member States, informing that in case the government in Austria is formed integrating the FPÖ Member States ‘will not promote or accept any bilateral official contacts at political level with an Austrian Government integrating the FPÖ; There will be no support in favour of Austrian candidates seeking positions in international organisations; Austrian Ambassadors in EU capitals will only be received at a technical level.’ Furthermore, it was underlined that ‘there would be no business as usual in the bilateral relations with a Government integrating the FPÖ’. The European Commission expressed its concern about the

190 Venice Commission points that in Romania, for example, the composition of the Bureau is decided in negotiations between the leaders of the parliamentary groups – Parameters on the relationship between the parliamentary majority and the opposition in a democracy: a checklist adopted by the Venice Commission at its 119th Plenary Session (Venice, 21-22 June 2019) CDL-AD(2019)015, 18. 191Ibid 29. The German Law on the Constitutional Court provides for a procedure of electing the judges by a two-third majority in Parliament. 192 Pilar Domingo, ‘Rule of law, politics and development. The politics of rule of law reform’ (2016) Overseas Development Institute 11-12. 193 Ibid 8 194 Parameters on the relationship between the parliamentary majority and the opposition in a democracy: a checklist adopted by the Venice Commission at its 119th Plenary Session (Venice, 21-22 June 2019) CDL-AD(2019)015, 7. 195 Under Article 48 of the French Constitution, the opposition groups in the relevant House have the right to set the agenda for one day of sitting per month. In the UK and Canada the opposition has a certain number of days during the year when it can define the agenda (in the UK these are 20 opposition days per session, which are divided amongst the opposition parties). 196 Gabriel N. Toggenburg, ‘La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni’ (2001) Diritto pubblico comparato ed europeo 735; Konrad Lachmayer, ‘Questioning the basic values—Austria and Jörg Haider’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (OUP 2017) 436. 197 Statement from the Portuguese Presidency of the European Union on behalf of XIV Member States (31 January 2000, Brussels) <http://ec.europa.eu/dorie/fileDownload.do;jsessionid=Ng8KStTVk5CvsXhnJGcm4q8Rry89P6cT8bs35h08fhpvFPssDYGc!1615003456?docId=84237&cardId=84237> accessed 15 February 2020.


situation in Austria.198 In June 2000 the Council (14 Member States) decided to appoint an expert committee competent to examine the Austrian case. The experts’ report199 stated that the Austrian Government was committed to the common European values, however expressed its criticism towards the political nature of the FPÖ. According to the report, adopted sanctions could become counterproductive, as they already ‘stirred up nationalist feelings in the country’. According to the report actions taken by 14 Member States ‘have heightened awareness of the importance of the European common values not only in Austria but also in other Member States’ and ‘energised civil society to defend these values’. The report recommended ‘the development of a mechanism within the EU to monitor and evaluate the commitment and performance of individual Member States with respect to the European Common values.’ Authors also recommended the introduction of preventive and monitoring procedures into Article 7 TEU, which would allow an open and non-confrontational dialogue with the Member State concerned. Ultimately this resulted in the reform of the provision and the introduction of Article 7(1) TEU,200 which has now been activated against Hungary and Poland. The report also suggested the creation of a human rights office within the Council reporting to the European Council. Finally, in September 2000, French Presidency withdrew the sanctions against Austria. From today's perspective Haider Affair can be perceived as ‘a past world made of political calculation, trade-offs and prevalence of politics over law.’201 Franco Peirone argued that the crisis showed that rule of law violations could not be determined on political grounds alone. Dimitry Kochenov argued that from a strictly legal point of view the whole political attack against Austria had little to do with the protection of the rule of law and was potentially illegal.202

Another political crisis took place in Italy, during the Berlusconi era, when the parliament adopted a law which provided absolute immunity for five highest state officials. The law was found unconstitutional twice – in 2004 and 2008 – as violating the principle of equality.203 Later in 2010 Berlusconi tried to amend the statutes of limitation – those amendments were also found partially unconstitutional.204 The CJEU de facto refused to intervene, as was mentioned above. By such amendments law was losing its general character but aimed at serving individual purposes. The same applied to the situation of media freedom in Italy, where Berlusconi owned

198 Commission statement on Austria (1 February 2000, Brussels) IP/00/93 – <https://ec.europa.eu/commission/presscorner/detail/en/ip_00_93> accessed 15 February 2020. 199 Report by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja (8 September 2000, Paris) Office of the United Nations High Commissioner for Human Rights <www2.ohchr.org/english/bodies/hrc/docs/ngos/HOSI-1.pdf> accessed 15 February 2020. 200 Wojciech 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 385; Leonard F.M. Besselink, ‘The Bite, the Bark and the Howl Article 7 TEU and the Rule of Law Initiatives’ in András Jakab, Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States' Compliance (OUP 2017) (hereafter Besselink, ‘The Bite, the Bark and the Howl’). 201 Peirone, ‘The Guardian Of The Law’ (n 79) 9. 202 Dimitry Kochenov, ‘Article 7: Un commentaire de la fameuse disposition “morte”’ (2019) Revue des affaires européennes 33. 203 Corte Costituzionale, 20 January 2004, n 24; Corte Costituzionale 7 October 2009, n 262. 204 Corte Costituzionale, 12 January 2011, n 23.


major TV channels and was not bound by any judicial decisions, including the CJEU and ECt.HR as Roberto Mastroianni retold.205 The situation in the country was highly disturbing.206

In 2010 mass deportation of Roma people (mostly Romanian and Bulgarian citizens) took place in France. It started in July 2010 as a result of a crackdown on unauthorised settlements, which resulted in expelling their inhabitants to their home countries. Deportation was organised on a basis of ‘voluntary return procedure,’ in which Roma were given money in exchange for their cooperation in the return process.207 The official narrative of the government (camps as sources of crimes) differed however from leaked memos, which suggested that Roma settlements had been identified as priority targets of the ongoing presidential campaign. It suggested that Roma were targeted for expulsion based on their ethnicity, which was in clear violation of EU anti-discrimination law and directive on freedom of movement, which allows deporting EU citizens on the basis of individual conduct thereof.208 The European Parliament strongly criticised the lack of passiveness of the Commission with respect to the ongoing crisis in France.209 The Parliament invited ‘the Commission to stand firmly behind the values and principles enshrined in the EU Charter of Fundamental Rights and the Treaties and to respond promptly with a full analysis of the situation’.210 The EP underlined also ‘lack of political will’ among Member States with respect to endorsing ‘concrete measures’ against Roma discrimination in Member States.211 After the resolution, the Commission announced issuing a letter of formal notice requesting full transposition of the EU directive of free movement.212 After submission of requirement documents, any further infringement actions were not taken

205 Roberto Mastroianni, ‘Media Pluralism in Centro Europa 7 srl, or When Your Competitor Sets the Rules’ in Fernanda Nicola and Bill Davies (eds), EU Law Stories (CUP 2017) 245. 206 European Parliament, Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Report on the risks of violation, in the EU and especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental Rights) (2003/2237(INI)). 207 ‘EU parliament calls on France to halt Roma deportations’ (DW, 9 September 2010) <www.dw.com/en/eu-parliament-calls-on-france-to-halt-roma-deportations/a-5988401> accessed 15 February 2020; Kristi Severance, ‘France's Expulsion of Roma Migrants: A Test Case for Europe’ (MPI, 21 October 2010) <www.migrationpolicy.org/article/frances-expulsion-roma-migrants-test-case-europe> accessed 15 February 2020. Cf Le respect par la France de la Directive européenne relative à la liberté de circulation et l’éloignement de ressortissants européens appartenant à la communauté Rom, information document submitted by Human Rights Watch to the European Commission in July 20110 (published 28 September 2011). The situation in Italy gave rise to very similar concerns: Isabella Clough Marinaro, ‘Between Surveillance and Exile: Biopolitics and the Roma in Italy’ (2009) 1(2) Bulletin of Italian Politics 265; Nando Sigona, ‘The Governance of Romani People in Italy: Discourse, Policy and Practice’ (2011) 16(5) J Modern Italian Stud 590 208 The European Roma Rights Center (ERRC), a Hungary-based public-interest law organization has argued that its research with Romanian and Bulgarian Roma who were deported from France reveals they received pre-printed official expulsion documents, with only their names and birthdates filled out by hand. 209 European Parliament resolution of 9 September 2010 on the situation of Roma and on freedom of movement in the European Union <www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0312+0+DOC+XML+V0//EN&language=EN> accessed 15 February 2020, paras 11-13. 210 Ibid para 12. 211 Ibid para 15. 212 European Commission press release: European Commission assesses recent developments in France, discusses overall situation of the Roma and EU law on free movement of EU citizens (29 September 2010, Brussels) <https://ec.europa.eu/commission/presscorner/detail/en/IP_10_1207> accessed 15 February 2020.


by the Commission. The later analysis suggested that despite the law was amended in France, practice remained largely unchanged,213 which represents an important rule of law issue.214

Another broadly discussed political rule of law crisis took place in Romania in 2012. In July 2012, the Romanian parliament impeached the Romanian President, which in order to be finalised required confirmation in referendum. Later, the parliament dismissed the ombudsman, limited the powers of the Constitutional Court regarding the constitutionality of parliamentary decisions and removed provisions on referendum participation quorum. So called ‘constitutional Blitzkrieg’215 resulted in firm criticism from the EU institutions. The Commission President demanded to follow an 11-point ‘to-do list’.216 The leader of the European People’s Party described the situation as ‘the galloping authoritarianism of PM Victor Ponta’.217 Under the EU pressure, Romanian government annulled the emergency decrees regarding the referendum threshold and the mandate of the Constitutional Court.218 It was broadly argued that Romanian accession to the Schengen area was one of the factor, which made the EU criticism so direct,219 despite the fact EU institutions did not refer to Article 7 TEU in their statements.220 On one hand, understanding the domestic context of the crisis was seen as a crucial factor in addressing the constitutional crisis by the EU actors, on the other hand however it has been argued that ‘political calculus’ undertaken in the Romanian case, did not really solve the constitutional crisis. As Vlad Perju stated, ‘if compliance with the values that the Treaty of Lisbon at least purports to defend is a matter of cost–benefit analysis on the part of national political elites, then such analysis will be highly contextual in the sense that differently positioned political actors will have different benefits and costs to weigh.221

It might be particularly convincing from the perspective of the next Romanian crisis, which directly dealt with the threat to the rule of law. Drastic amendments to substantial and procedural criminal law limited the legal liability for corruption crimes, also those committed by public officials. Newly created procedures for sanctioning prosecutors and judges, have created a chilling effect in the justice system. Some of the ‘reforms’ were adopted as emergency executive decrees. The Venice Commission found that ‘fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and 213 Sergio Carrera, ‘Shifting Responsibilities for EU Roma Citizens. The 2010 French affair on Roma evictions and expulsions continued’ (2013) 55 CEPS Paper 15. 214 Cf for a broader context of Roma rights protection in the EU: Galina Kostadinova, ‘Minority Rights as a Normative Framework for Addressing the Situation of Roma in Europe’ (2011) 39(2) Oxford Development Studies 163; Peter Vermeersch, ‘The European Union and the Roma: An Analysis of Recent Institutional and Policy Developments’ (2013) 10 Eur YB Minority Issues 341. 215 Vlad Perju, ‘The Romanian double executive and the 2012 constitutional crisis’ (2015) 13 ICON 246, 257 (hereafter Perju, ‘The Romanian double executive and the 2012 constitutional crisis’). 216 ‘Romania’s Basescu attempts counter-attack’ (Euractiv, 12 July 2012) <www.euractiv.com/section/justice-home-affairs/news/romania-s-b-sescu-attempts-counter-attack/> accessed 15 February 2020. 217 ‘Romania: Galloping Authoritarianism by Socialist-Liberal Coalition Will Not Be Tolerated’, EPP Press Release, 7 July 2012. 218 Ingi Iusmen, ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe: the Case of Romania’ (2015) 53(3) JCMS 594-596 (hereafter Iusmen, ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe’). 219 Tom Ginsburg and Bojan Bugarič, ‘The Assault on Postcommunist Courts’ (2016) 27(3) Journal of Democracy 80. 220 Iusmen, ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe’ (n 218) 598. 221 Perju, ‘The Romanian double executive and the 2012 constitutional crisis’ (n 215) 273-274.


of the real motives behind some of those changes.’222 GRECO follow-up report highlighted that the new legislation includes several amendments relating to the appointments and dismissals of senior prosecutors, functional independence of prosecutors, personal liability of judges and prosecutors etc., which, ‘taken together, represent serious threats to the independence of the judiciary in Romania.’223 Vice president of the European Commission informed the Romanian government about the possible activation of the Rule of Law Framework, if Romania authorities do not introduce improvements relevant.224 Already in 2017 mass protests took place in Romania as a reaction to adoption of emergency decries. Together with international criticism, those led to a situation when the government in power lost the European elections and referendum held in May 2019 and de-facto leader of the government majority, Liviu Dragnea, was sent to jail to begin a three-and-a-half-year prison sentence for corruption.225 The crisis shows that it had clear institutional and procedural aspects, but the underlying motives were mainly political. The 2018 CVM report published in October 2019 suggests that the supervision process should be continued.

While those were mainly political crises – resulting from decisions of political actors with respect to adoption of new law and its implementation – they do not offer a coherent, fit-for-all solution. Political practices dealing with the rule of law might be oriented at their internal and external dimensions. There is an interesting set of steps undertaken in recent years by the national governments regarding the rule of law in other Member States, which underlined the need for enhancing supranational reactions. Those political reaction cover also diplomatic involvement – on bilateral226 and supranational level, both judicial227 and political.228 A Particularly interesting development relates to the involvement of the national parliament, i.a. Dutch Parliament held a hearing and a round-table discussion regarding the rule of law situation in Poland and Hungary (14 February 2019).229 Such hearings not only allow us to better

222 Opinion on Emergency Ordinances GEO No. 7 and GEO No. 12 AMENDING THE LAWS OF JUSTICE Adopted by the Venice Commission at its 119th Plenary Session (Venice, 21-22 June 2019) CDL-AD(2019)014. 223 Follow-up Report to the Ad hoc Report on ROMANIA (Rule 34) Adopted by GRECO at its 83rd Plenary Meeting (Strasbourg, 17-21 June 2019) Greco-AdHocRep(2019)1, 15. 224 The letter suggested suspension of CVM mechanism; Laurent Pech, Vlad Perju and Sébastien Platon, ‘How to Address Rule of Law Backsliding in Romania: The case for an infringement action based on Article 325 TFEU’ (Verfassungsblog, 29 May 2019) <https://verfassungsblog.de/how-to-adress-rule-of-law-backsliding-in-romania/> accessed 15 February 2020. 225 Jennifer Jankin, ‘“We are watching you”: the 500-day protest against corruption in Romania’ (The Guardian, 23 July 2019) <www.theguardian.com/world/2019/jul/23/we-are-watching-you-protesters-corruption-romania-sibiu> accessed 15 February 2020. 226 Norwegian Minister for European Affairs Vidar Helgesen discussed the situation in Hungary in a letter to the Financial Times (28 August 2014): ‘While not a member of the EU, Norway is closely integrated with the EU and deeply committed to the values that underpin European integration. These values are now being challenged by the Hungarian government, a Member State and a recipient of massive EU funding. Given this situation, I am puzzled and disappointed that a response from the EU institutions has been largely lacking. For decades, the EU has been the strongest impetus for democratic change and respect for human rights in Europe. As we approach the 25th anniversary of the fall of the Berlin Wall, the EU should demonstrate in no uncertain terms that it will not accept the re-establishment of an illiberal State within its borders’. 227 I.a. joining infringement actions initiated by the European Commission or preliminary proceedings dealing with rule of law issues. 228 Letter of the Foreign Ministers of Denmark, Finland, Germany and the Netherlands to the President of the European Commission (6 March 2013). 229 Report by the Rapporteur on the Rule of Law Developments in the European Union (13 March 2019) Parliamentary Document 21 501-02, No. 1976


understand the situation in other Member States, but also to evaluate and improve the rule of law situation in a given Member State.230

On the theoretical level, actions under Article 259 TFEU should be definitely considered as potential good practices. Article 259 TFEU provides that a Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice. It has, however, not been used in order to enforce rule of law in other Member States, mostly due to its confrontational nature. Despite that, It was correctly argued that direct actions under Article 259 TFEU can play an important role in enforcing compliance with the EU’s values. It does not involve a direct dispute over the limits of the EU powers, as the European Commission may decide not to engage in it.231 The political costs of such proceedings might be even downsized if the case is submitted by a coalition of Member States, without waiting for the result of Article 7 proceedings.232 By securing the rule of law in Europe, Member States protect themselves against rule of law backsliding.

4. Rule of law practices in the European Union – dual role in times of crisis

Despite the lack of ‘rule of law’ references in the text of the first Community Treaties,233 its significant role in the contemporary EU legal order has been established with abundant clarity.234 EU adherence to the rule of law is required i.a. in order to secure its legitimacy and credibility with respect to the EU external action regarding rule of law and human rights protection abroad.235 It is also required for success of the EU project,236 since there is a direct link between the rule of law, EU citizenship, predictable business environment and area of

<https://ec.europa.eu/info/sites/info/files/stakeholder_contribution_on_rule_of_law_-_netherlands_house_of_representatives.pdf> accessed 15 February 2020. 230 ‘Dutch Parliament Explores Rule of Law Backsliding in Hungary and Poland’ (NHC, 18 February 2019) <www.nhc.nl/rule-of-law-backsliding-hungary-and-poland/> accessed 15 February 2020. 231 Dimitry Kochenov, ‘Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool’ (2015) 7 Hague J Rule Law 170. 232 Opinion of the Meijers Committee on interstate procedures and the rule of law, CM1909 (Meijers Committee, 6 November 2019) <www.commissie-meijers.nl/sites/all/files/cm1909_opinion_of_the_meijers_committee_on_interstate_procedures_and_the_rule_of_law.pdf> accessed 15 February 2020. 233 The concept could have been considered as belonging to the informal resources of the acquis, since compliance with the principle has certainly been required since the very first enlargement of the EU: Dimitry Kochenov, ‘EU Enlargement Law: History and Recent Developments: Treaty – Custom Concubinage?’ (2005) 9(6) European Integration online Papers 1. 234 See, Laurent Pech, Joelle Grogan and others, ‘Meaning and Scope of the EU Rule of Law’ (2020) RECONNECT working paper D7.2 <https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf> accessed 9 May 2020. See also Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47); Janse, De renaissance van de Rechtsstaat (n 46). 235 Laurent Pech, ‘Promoting the Rule of Law Abroad: On the EU’s Limited Contribution to the Shaping of an International Understanding of the Rule of Law’ in Dimity Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the International Legal Order (CUP 2013) 108. 236 A new strategic Agenda 2019-2024 <www.consilium.europa.eu/en/eu-strategic-agenda-2019-2024/> accessed 12 March 2020, 3 – The common values underpinning our democratic and societal models are the foundation of European freedom, security and prosperity. The rule of law, with its crucial role in all our democracies, is a key guarantor that these values are well protected; it must be fully respected by all Member States and the EU.


freedom, security and justice.237 Finally, and most importantly, it is established by the Treaties as a fundamental value238 – common for Member States and the EU itself.239

Assessing the rule of law in the European Union involves its dual role240 – securing rule of law at supranational level (among EU institutions) and in Member States, among others in order to secure cooperation based on common EU standards (such as in criminal matters). Discussion whether the EU is empowered to review the state of rule of law in Member States is closely linked with dilemma if the EU itself meets the rule of law and democracy standards, as Joseph Weiler aptly observed.241 When reviewing rule of law in the Member States, the EU institutions need to follow rule of law standards (such as legality), also, crucially, in order to secure their own legitimacy. The main point of reference regarding the definition of the rule of law in the European context – Venice Commission ‘Rule of law Checklist’ – was mainly designed and addressed to the states–members of the Council of Europe. The Venice Commission recognised, however, a special legal nature of EU legal order.242 The list of the rule of law requirements was approved by the European Commission – as a leading indicator for the EU rule of law and that of EU Member States.243 It confirms the assumption presented in the literature, that ‘all Member States and Union institutions are on an equal footing before the requirements of the rule of law’.244 As a result, also the best rule of law practices at the EU level follow – in principle – the division on institutional, procedural and political practices.

4.1. Rule of law practices and the EU institutional architecture

The institutional arrangement of the European Union to some extent follows the traditional separation of powers model, however it is definitely different from a handbook version thereof applicable to states, which is why the established approach is to speak of the ‘institutional balance’.245 The European Commission, perceived as the executive power of the EU, with exclusive power of legislative initiative, had to define its role towards the rule of law in the EU Member States when the rule of law problems emerged. The Commission’s reaction to mass extradition of Roma people in France in 2010 was rather ambiguous. Despite clear violation of the EU law, the Commission did not decide to initiate infringement action. Reaction to crisis in Romania was mainly based on political discussion, aimed at convincing the Romanian authorities to drop controversial measures. It is however the situation in Hungary which became the major challenge for the Commission, which was directly invited – by the European

237 Finnish Presidency, ‘Enhancing Respect for the Rule of Law in the Union: Presidency Discussion Paper’, Brussels, 10 September 2019 (OR. en) 12044/19, 1. 238 Klamert and Kochenov, ‘Article 2 TEU’ (n 40) 22. 239 Laurent Pech and Kim Lane Scheppele, ‘Illiberalism within: Rule of Law Backsliding in the EU (2017) 19 CYELS 3; Dimitry Kochenov, ‘The Acquis and Its Principles: The Enforcement of “Law” versus the Enforcement of “Values” in the European Union’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (OUP 2017) 8 (hereafter Kochenov, ‘The Acquis and Its Principles’); Melanie Smith, ‘Staring into the abyss: A crisis of the rule of law in the EU’ (2019) 25 ELJ 563. 240 Palombella, ‘Beyond Legality—before Democracy’ (n 54). 241 Weiler, ‘Epilogue: Living in a Glass House’ (n 96). 242 Venice Commission, Rule of Law Checklist, para 42. 243 Communication from the Commission to the European Parliament and the Council – A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final. 244 von Danwitz, ‘Values and the Rule of Law’ (n 2) 10. 245 Jean-Paul Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CMLRev 383; Koen Lenaerts, ‘Some Reflections on the Separations of Powers in the European Community’ (1991) 28 CMLRev 11.


Parliament246 and Member States247 – to take effective steps in order to secure rule of law in the EU Member States. The Commission’s main response was the establishment of the Rule of law Framework,248 commonly perceived as pre-Article 7 procedure. Such a feature of the new tool was also one its main shortcoming – another step to avoid difficult political decision to introduce Article 7 proceedings. First activation of the framework – against Poland in January 2016 – was coordinated by the First Vice President of the Commission – Commissioner for Better Regulation, Interinstitutional Relations, the Rule of Law and the Charter of Fundamental Rights. Position’s portfolio covered coordinating the Commission's work on the rule of law and ensuring that every Commission proposal and initiative complies with the Charter of Fundamental Rights. The only ‘rule of law procedure’ mentioned in the President Juncker’s Mission Letter to Frans Timmermans was Cooperation and Verification Mechanism for Bulgaria and Romania, which coordination was also assigned to Timmermans.249 After January 2016 when the Rule of Law Framework was initiated for the first time, Timmermans strongly insisted on dialogue with Poland, underlying it is the main tool of the framework. He has been also responsible for representing the Commission during Article 7 procedure against Poland in December 2017. Commission’s actions were not however limited only to political procedures, but also involved infringement actions under Article 258 TFEU, which unlike Commission’s reasoned proposal to activate Article 7 TEU, were based on reference to alleged violation of Member States obligations under the Treaties and the Charter of Fundamental Rights.

Particularly interesting institutional rule of law practices in the EU are those dealing with the functioning of independent bodies aimed at securing the rule of law and their main elements, such as access to judicial review.

The CJEU. The establishment of the Court of Justice was perceived for decades as main proof that the Communities follow the basic rule of law principles by ensuring judicial review of the EU law and decisions adopted by the EU institution. Legal protection against abuse of powers by the High Authority was clearly underlined by the Member States.250 It is however the Court, which explained – step by step – the meaning of the rule of law under EU law.251 Furthermore, it did not say the final word on rule of law yet. The Court is free to provide such an ‘autonomous’ understanding of the EU rule of law, often relying on common constitutional traditions of the Member States.252 Judicial protection plays a central role in the CJEU interpretation of the EU

246 Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)) European Parliament, Committee on Civil Liberties, Justice and Home Affairs. 247 Letter from the Foreign Affairs Ministers of Denmark, Finland, Germany and the Netherlands to the Commission President, calling for a new mechanism to safeguard fundamental values in the EU, March 2013. 248 Communication from the Commission to the European Parliament and the Council – A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final. 249 President Juncker's Mission Letter to Frans Timmermans (1 November 2014, Brussels) p. 5, <https://wayback.archive-it.org/12090/20191119120516/https://ec.europa.eu/commission/commissioners/sites/cwt/files/commissioner_mission_letters/timmermans_en.pdf> accessed 29 April 2020. 250 Jean-Victor Louis, ‘The rule of law’ in Martin Westlake (ed), The European Union beyond Amsterdam. New concepts of European Integration (Routledge 1998) 100. 251 The establishment of the Rule of Law and the protection of fundamental rights which are essential elements in any political legitimacy do not arise from democracy, but are the result of judicial activity: Fernández Esteban, The Rule of Law in the European Constitution (n 56) 183. 252 Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (n 47) 47.


rule of law.253 The Court recognized such elements of rule of law as: principles of legality,254 legal certainty,255 the protection of legitimate expectations,256 but also principle of proportionality257 There is however an important feature of the EU legal order which needs to be underlined in context of the institutional practices. As Kochenov found, the EU does not meet rule of law standards (understood as an institutional ideal) based on a divide between jurisdictio and gubernaculum. Rule of law as ‘balance in the duality of two types of law within the constitutional system’, is difficult to apply to the EU legal order.258 Excessive reliance on the procedural aspects of the rule of law could come at the expense of fundamental rights protection,259 as well as the robustness of the stat of dialogue between the CJEU and the national courts.

The Court’s interpretation of Article 19 adopted in ASJP provided however a chance to overcome this EU ‘error in design’260 by providing a tool to enforce one of the EU fundamental values – the rule of law. It was later applied by the Court in cases dealing directly with measures aimed at undermining judicial independence.261 Unfortunately, tools provided by the Court, while pointing in the right direction, are not always so easy to apply. In LM ruling, the Court underlined that judicial independence is a part of fundamental right to a fair trial and this particular right is essential for safeguarding the rule of law (and other EU values).262 However the tool provided by the Court – two stage test – does not constitute an effective solution to rule of law backsliding affecting the right to fair trial in a Member State.263 The worrisome outcome consists in the possible waning away of mutual trust between the Member States.264

The Fundamental Rights Agency. The main expert institution in the rule of law field – the Fundamental Rights Agency (FRA) – does not fully meet the requirements established under

253 Konstadinides, The Rule of Law in the European Union (n 26) 59. Access to courts was perhaps the first common value that emerged from the CJEU ’ s case law — a key element of a Union based on the rule of law, underpinning the EU legal order. – ibid 66 254 Case C-303/05 Advocaten voor de Wereld (2007) ECLI:EU:C:2007:261, paras 49-50. 255 Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (2010) ECLI:EU-:C:2010:512, para 100. 256 Case C-362/12 Test Claimants in the Franked Investment Income Group Litigation (2013) ECLI:EU:C:2013:834, paras 44-45. 257 Case 11/70 Internationale Handelsgesellschaft (1970) ECLI:EU:C:1970:114, para 12; Cases C-581/10 and C-629/10 Nelson et al., (2010) EU:C:2012:657, para 71. 258 Kochenov, ‘EU Law without the Rule of Law’ (n 52) 74. 259 Piet Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue—Autonomy or Autarky?’ (2015) 38 Fordham International Law Journal 955 (hereafter Eeckhout, ‘Opinion 2/13’); Dimitry Kochenov and Matthijs van Wolferen, ‘Dialogical Rule of Law and the Breakdown of Dialogue in the EU’, EUI Working Paper (LAW) 2019/01 (and the literature cited therein). 260 Dimitry Kochenov, ‘The EU and the Rule of Law – Naïveté or a Grand Design?’ in Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017) 425 (hereafter Kochenov, ‘The EU and the Rule of Law’). 261 Case C-619/18, Commission v. Poland (Supreme Court), (Grand Chamber) 24 June 2019. 262 Case C-216/18 PPU LM (2018) ECLI:EU:C:2018:586, para 48. 263 Petra Bárd and John Morijn, ‘Luxembourg’s Unworkable Test to Protect the Rule of Law in the EU: Decoding the Amsterdam and Karlsruhe Courts’ post-LM Rulings (Part I)’ (Verfassungsblog, 18 April 2020) <https://verfassungsblog.de/luxembourgs-unworkable-test-to-protect-the-rule-of-law-in-the-eu/> accessed 29 April 2020. 264 Cecilia Rizcallah, ‘The Challenges of Trust-Based Governance in the European Union’ (2019) 25 ELJ 37. But see Iris Canor, ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust Among the Peoples of Europe”’ (2013) 50 CMLRev 384.


Paris Principles,265 dealing with standards of national human rights institutions.266 It lacks, for instance, 1) power to comment on the EU legislative proposal on its own decision and 2) autonomy to define areas of activities.267 The outcome of the evaluation published in 2012 showed the strong position of FRA regarding data gathering and providing reliable information. However, it was underlined that ‘the full potential towards providing advice in the field of fundamental rights is not utilised’.268 The rule of law framework established in 2014 by the European Commission provides for FRA involvement,269 which however was not employed in the case of Poland. Instead, expertise from the Venice Commission was a point of reference for the Commission.270 It was seen as strengthening the Commission’s initial findings and reinforcing its legitimacy,271 despite the fact that expert evaluation was also available under the EU institutional framework. This being said, the potential for the effective deployment of FRA’s data and know-how in the context of the rule of law monitoring and enforcement is quite significant.272

4.2. Procedural rule of law practices in the European Union

Infringement proceedings. The twofold nature of the rule of law – legal and political – is fully reflected also in the EU institutional arrangements. The main guardian of the Treaties – the Commission – is also responsible for protection of the values articulated in Article 2 TEU. Its role however is not mainly political, but also includes legal tools such as infringement proceedings, which only confirm that ‘value protection is (…) a political concept with procedural-legal elements.’273 Ursula von der Leyen in her opening statement delivered in the European Parliament in July 2019, stating (quite optimistically) that ‘Lady Justice is blind – she

265 Principles relating to the Status of National Institutions (The Paris Principles) adopted by General Assembly resolution 48/134 of 20 December 1993. 266 Jan Wouters and Michal Ovádek, ‘What political role for the EU’s Fundamental Rights Agency?’ (2019) KU Leuven Working Paper No. 209, 6 (hereafter Wouters and Ovádek, ‘What political role for the EU’s Fundamental Rights Agency?’). 267 Armin von Bogdandy and Jochen von Bernstorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and some Unsettled Issues in a new Field of Administrative Law’ (2009) Common Market Law Review 1059; Wouters and Ovádek, ‘What political role for the EU’s Fundamental Rights Agency?’ (n 266) 7. 268 Ramboll, ‘External evaluation of the European Union Agency for fundamental rights’, November 2012, 96, <http://fra.europa.eu/sites/default/files/fra-external_evaluation-final-report.pdf> accessed 10 March 2020. 269 Communication from the Commission to the European Parliament and the Council: A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final, 7. 270 Venice Commission, Opinion on amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016) CDL-AD(2016)001-e. 271 Laurent Pech and Joelle Grogan, ‘Upholding the rule of law in the EU. What role for FRA?’ in Rosemary Byrne and Han Entzinger (eds), Human Rights Law and Evidence-Based Policy: The Impact of the EU Fundamental Rights Agency (Routledge 2019) 226. 272 Gabriel Toggenburg and Jonas Grimheden, ‘Upholding Shared Values in the EU: What Role for the EU Agency for Fundamental Rights?’ (2016) 54(5) JCMS 1103 (hereafter Toggenburg and Grimheden, ‘Upholding Shared Values in the EU’); Gabriel N. Toggenburg and Jonas Grimheden, ‘The Rule of law and the Role of Fundamental Rights’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 154-155 (hereafter Toggenburg and Grimheden, ‘The Rule of law and the Role of Fundamental Rights’). 273 Olivier Mader, ‘Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value Homogeneity in Times of Persistent Challenges to the Rule of law’ (2019) 11 Hague Journal of the Rule of Law 166.


will defend the Rule of Law wherever it is attacked’.274 While the CJEU has been very active in its attempts to reinforce the rule of law, the Commission has not demonstrate much eagerness at all, regular commotion notwithstanding.275

Among different tools available for the Commission regarding securing the rule of law in the EU, infringement proceedings play crucial role. For the European Commission, they remain the main tool of securing obedience with the EU law. Despite the fact that Article 2 TEU remains largely non-justiciable,276 when taken alone, infringement proceedings constitute an important procedural tool, which remains highly relevant to tackle rule of law violation in Member States and can obviously combine infringements of Article 2 with other provisions.277 It was confirmed already in 2001 in the Commission’s White Paper on Governance, where the Commission stated that it would focus on ‘situations involving the compatibility of national law with fundamental Community principles’.278 Fundamental values of the EU are part of the law and are unquestionably enforceable.279 The recent cases of rule of law backsliding, exemplified with systemic legislative amendments introduced in Hungary and Poland affecting rule of law elements such as separation of powers and independence of courts, show that Article 258 TFEU provides opportunity to handle those systemic shifts. For this purpose however, the main actor deciding whether infringement action should be initiated – the European Commission – needs to define which issues might be considered as ‘rule of law cases’.280 Unfortunately previous attempts to deal with the rule of law backsliding were not always successful due to the very limited scope of the actions, in which main arguments were mostly market-oriented and not dealing directly with the rule of law.281

On substantial level, idea of ‘systemic deficiency’ can be applied in order to strengthen the arguments on systemic violation of EU values, such as rule of law.282 Systemic infringement actions could allow the use of the Charter in order to handle the rule of law backsliding in a

274 Opening Statement in the European Parliament Plenary Session by Ursula von der Leyen, Candidate for President of the European Commission (2019) <https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_19_4230> accessed 10 March 2020. 275 Cf Kochenov, ‘Elephants in the Room’ (n 12) 423. 276 Dimitry Kochenov and Laurent Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU’ (2015) 11 EUConst 520; Laurence Gormley, ‘Infringement Proceedings’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) 78. 277 Christophe Hillion, ‘Overseeing the Rule of Law in the EU: Legal mandate and means’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union (CUP 2016). 278 European Commission, ‘European Governance: A While Paper’, Brussels, 25 July 2001, COM(2001) 428 final, 24. 279 Kochenov, ‘The Acquis and Its Principles’ (n 239). 280 A. Śledzińska-Simon and P. Bárd offered a definition which underlines the systemic nature of introduced changes and possible violation of EU law. Rule of law cases for the purpose of infringement proceedings – rule of law violations could be characterised by their systemic nature – they are caused by systemic changes of law and they cause systemic damage to the legal system of a Member State: Anna Śledzińska-Simon and Petra Bárd, ‘Rule of law infringement procedures: A proposal to extend the EU’s rule of law toolbox’ (2019) 3 CEPS Paper, 3. 281 Case C-286/12 Commission v Hungary (2012) ECLI:EU:C:2012:687; Kim Lane Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) (hereafter Scheppele, ‘Enforcing the Basic Principles of EU Law’). 282 Matthias Schmidt and Piotr Bogdanowicz, ‘The infringement procedure in the rule of law crisis: How to make effective use of Article 258 TFEU’ (2018) 55 CMLRev 1061-1100.


Member States.283 As the Lisbon Treaty improved Charter’s legal status as a source of EU primary law,284 the Court’s case-law slowly develops the possibility of its practical implementation. The fact that it applies not only to the EU institutions but also to Member States ‘when they are implementing Union law, in the exercise of their respective powers’,285 and that this scope is not at all that narrow following Åkerberg Fransson,286 gives unique opportunity to apply the Charter also to case of systemic rule of law backsliding.287 The Charter covers some of the main elements of the rule of law such as the principle of effective judicial protection.288 As a result its application can – directly or indirectly – strengthen the protection of the rule of law in the EU and in Member States.

The latest survey shows however that the level of awareness of the Charter among the EU citizens is quite low.289 Also growing awareness among judges and lawyers is still below expectation.290 The aim, which FRA describes as ‘Charter culture’,291 has evidently not been accomplished yet, neither at the domestic,292 nor at the supranational293 level. The Charter’s preamble mentions the rule of law directly in a very general manner as one of the Union’s foundations. Furthermore its provisions express some elements of the rule of law (such as a right to good administration under Article 41 of the Charter and a right to an effective remedy

283 Scheppele, ‘Enforcing the Basic Principles of EU Law’ (n 281). Cf Jesse Stricklan, ‘Prospects for Enhanced Infringement Procedures in the EU’ (n.d.) Michigan Journal of International Law Blog, accessed, 8 May 2020. 284 Article 6(1) TEU. 285 Articles 51(1) and 52 (5) of the Charter. 286 Case C-617/10 Åkerberg Fransson EU:C:2013:105. 287 For a superb analysis early in the rule of law crisis, see Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States’ (n 167). See also András Jakab, ‘Application of the EU Charter in National Courts in Purely Domestic Cases’ in András Jakab and Dimitry Kochenov (eds) The Enforcement of EU Law and Values (OUP 2017) (hereafter Jakab, ‘Application of the EU Charter in National Courts’). 288 Toggenburg and Grimheden, ‘Upholding Shared Values in the EU’ (n 272) 1103; Toggenburg and Grimheden, ‘The Rule of law and the Role of Fundamental Rights’ (n 272) 154-155. 289 Report – Awareness of the Charter of Fundamental Rights of the European Union, Special Eurobarometer 487b, June 2019, 7: ‘Just over four in ten respondents (42%) say they are aware of the Charter of Fundamental Rights of the EU (the Charter). The majority – 57% – have not heard of it. The majority of respondents would like more information about the contents of the Charter, when it applies, and where to turn if their rights are violated.’ 290 Daniel Sarmiento, ‘The Charter of Fundamental Rights Turns Ten – A Brussels Celebration’ (The EU Live Blog, 13 November 2019) <https://eulawlive.com/blog/2019/11/13/the-charter-of-fundamental-rights-turns-ten-a-brussels-celebration/> accessed 22 April 2020. 291 Fundamental Rights Report 2017, FRA Opinions – <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-fundamental-rights-report-2017-opinions_en.pdf> accessed 22 April 2020; Fundamental Rights Agency, Fundamental Rights Report 2017 – <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-fundamental-rights-report-2017_en.pdf> accessed 22 April 2020. 292 FRA opinion 2017 <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-fundamental-rights-report-2017-opinions_en.pdf> accessed 22 April 2020: ‘EU Member States have not yet fully embedded a “Charter culture” in their administrative, legislative and judicial procedures. Neither does the EU fully use the potential of all Charter rights (including socioeconomic rights), nor their guiding function across its activities. The EU does not systematically request independent socio-legal advice when legislating. Moreover, the EU has not yet acceded to the European Convention on Human Rights (ECHR) and is therefore as such not subject to the jurisdiction of the European Court of Human Rights (ECtHR). Furthermore, a gap persists between the EU’s internal fundamental rights policies and its external commitment to human rights.’ 293 Fundamental Rights Agency, Fundamental Rights Report 2017: ‘“Charter culture”, so making good use of the Charter’s potential in legislation and administration, is still done poorly across the EU, especially in regard to socio-economic rights. FRA claims to be rarely asked for opinions in matters relating to fundamental rights and accuses the EU of having serious disparities between internal legislation on the subject and its external policies of promoting human rights.’


and fair trial under Article 47 of the Charter). On a technical level, also FRA sees a great practical role for the Charter-based information regarding protection of fundamental rights used for the purpose of securing Article 2 values,294 as ‘most of the Article 2 values are covered by the Charter’ and ‘taking fundamental rights as the starting point means to directly address elements of the Rule of Law’.295 Such Charter optimism however has its limits, seen recently in the Court’s ruling in LM, where the analysis was based on Article 47 Charter and resulted in need of application individual rights-oriented test and missed a more systemic approach referring to rule of law.296

The Commission's strategy on the Charter297 analyzed rule of law context of the Charter mainly in its external dimension, by referring to Articles 21 and 49 TEU, whereas the operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments does not mention rule of law, nor Article 2 values, even once.298 It seems that the European Commission was not prepared for the use of Charter in context of the rule of law backsliding in Member States. Unfortunately ‘data on use of the Charter in the infringement proceedings are not even mentioned in the annual report of Charter’s application.’299

Limited scope of the Charter, to which the (then) Commission Vice-President Reding referred to in her famous speech in 2013,300 remains one of the main obstacles when Charter is considered as tool suitable to handle rule of law crisis in Member States. Broad scope of interpretation of the Charter limits can be also perceived as a thread which would lead to duplication of Strasbourg system,301 despite the fact that wording of Article 53 of the Charter already relies on Strasbourg standard when interpreting the Charter.302 The Court’s decision regarding accession of the EU to the ECHR could be perceived as a chance to further strengthen the position of the Charter (and the case law of the ECtHR),303 however it made it more difficult to introduce traditional institutional arrangements of rule of law. The situation when the Treaty

294 FRA Opinion 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, <https://fra.europa.eu/en/opinion/2016/fra-opinion-eu-shared-values-tool> accessed 22 April 2020. 295 Toggenburg and Grimheden, ‘The Rule of law and the Role of Fundamental Rights’ (n 272) 154-155. 296 Wouter van Ballegooij and Petra Bárd, ‘The CJEU in the Celmer case: One Step Forward, Two Steps Back for Upholding the Rule of Law Within the EU’ (Verfassungsblog, 29 July 2018) <https://verfassungsblog.de/the-cjeu-in-the-celmer-case-one-step-forward-two-steps-back-for-upholding-the-rule-of-law-within-the-eu/> accessed 24 April 2020. 297 Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM/2010/0573 final. 298 Commission Staff Working Paper – Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments, Brussels, 6 May 2011 SEC(2011) 567 final. 299 Olivier De Schutter, ‘Infringement proceedings as a tool for the enforcement of fundamental rights in the European Union’, Open Society European Policy Institute, October 2017, 65. 300 Cf Jakab, ‘Application of the EU Charter in National Courts’ (n 287); András Jakab, ‘The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law against EU Member States’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 187. 301 Thomas von Danwitz, ‘The Rule of Law in the Recent Jurisprudence of the ECJ’ (2014) 14(5) Fordham International Law Journal 1340. 302 Koen Lenaerts, ‘The Court of Justice as the guarantor of the rule of law within the European Union’ in Geert De Baere and Jan Wouters (eds), The Contribution of International and Supranational Courts to the Rule of Law (Edward Elgar Publishing 2015). 303 Konstadinides, The Rule of Law in the European Union (n 26) 80-81.


requires accession to the ECHR and the Court’s opinion directly reduces such possibility,304 constitutes a true rule of law challenge.

4.3. Political rule of law practices – EU institutions and Member States

Analysis of a political dimension of the rule of law practices at the EU level is closely linked with the actions undertaken by the main political actors: European Commission, European Parliament305 and Member States (Council).306 With respect to rule of law at domestic level, the relation between the EU and Member States is based on discussion as a tool of assessing situation of the rule of law. Dialogue requires however good faith of both sides, which is particularly challenging in case of intentional undermining rule of law standards. Dialogue assumes also that both sides are equal which excludes hierarchical relation. It raises the question whether the rule of law standards (such as legality or judicial independence) can be discussed or negotiated. This section concentrates on three practices: Article 7 procedure, European political parties, Annual Rule of Law Cycle in the Council.

Article 7 TEU procedure. The basic EU tool designed to handle systemic threat to the EU values, such as rule of law, at national level – Article 7 TEU procedure – leaves the main decision to political actors (Member States). Amended after Haider Affair, the procedure was initiated twice – against Poland307 in 2017 and Hungary308 in 2018 – and has not brought any final decision so far regarding state of rule of law in those Member States. Due to non-transparent procedure and lack of political will, the practical role of Article 7 procedure seems to be limited and reminds more of never-ending discussion about quite clear legal issues and non-negotiable rule of law standards.309

Crucial role and responsibility in ensuring success of Article 7 procedure lies with Member States. Their positions on the enforcement of rule of law and article 7 differ in time. Governments have positioned themselves on rule of law issues on several occasions since 2012. The most usual way to air their views is by means of collective statements declaration within specific groupings such as the Friends of the Rule of Law, the Visegrad group and multilateral and bilateral summits and these fora have served for positions both against and in favour of stronger enforcement. Governments have expressed very seldom their views in isolation (with the obvious exception of those offending ones, i.e. Hungary) although this has become more frequently in the last years. Among those who have critically spoken in favour of enforcement

304 Eeckhout, ‘Opinion 2/13’ (n 259) 955. 305 Judith Sargentini and Aleksejs Dimitrovs, ‘The European Parliament’s Role: Towards New Copenhagen Criteria for Existing Member States?’ (2016) 54 JCMS 1085 (hereafter Sargentini and Dimitrovs, ‘The European Parliament’s Role’). 306 Peter Oliver and Justine Stefanelli, ‘Strengthening the Rule of Law in the EU: The Council’s Inaction’ (2016) 54 JCMS 1075; Ernst Hirsch Ballin, ‘Mutual Trust: The Virtue of Reciprocity – Strengthening the Acceptance of the Rule of Law through Peer Review’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 144 (hereafter Hirsch Ballin, ‘Mutual Trust’). 307 Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM/2017/0835 final – 2017/0360. 308 European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)). 309 Dimitry Kochenov, ‘Article 7 TEU: A Commentary on a Much Talked-About “Dead” Provision’ (2018) XXXVIII Polish Yearbook of International Law 165-187; Besselink, ‘The Bite, the Bark and the Howl’ (n 200).


of rule of law (with more or less intensity) are Germany, Finland, Luxembourg, the Netherlands and Sweden. Several other governments have positioned themselves explicitly against enforcement or have expressed reserves: UK, Bulgaria. A preliminary conclusion could be that government are prepared to position themselves jointly with others but less favourable to state their views on the topic in isolation.

In 2012 ‘Future of Europe Group’ consisting of the Foreign Ministers of Austria, Belgium, Denmark, France, Italy, Germany, Luxembourg, the Netherlands, Poland, Portugal and Spain published a report in which the Group requested the Commission to ‘introduce a light mechanism to report in case of concrete violations of values under art. 2 and make recommendations.’310 In January 2018, Visegrad Group (Czech Republic, Hungary, Poland and Slovakia) published a V4 Statement on the Future of Europe, in which referred to the EU values and stated that ‘The right of Member States to carry out domestic reforms within their competences should be respected.’311 The Vendôme Group, made up of the Justice Ministers of Belgium, France, Germany, Italy, Luxembourg, Spain and the Netherlands upon a French initiative, aims at having a dynamic yet informal ministerial forum to debate cross-border cooperation in the fight against terrorism and the most serious crimes from a justice perspective. Reports show that it dealt with rule of law on at least one occasion.312 Finally, the Member States positions are presented at international level313 and during the Council’s hearings,314 where Member States decide whether to hold a formal Article 7 hearing315 and, further, when Member States are entitled to ask questions.316 Also the involvement of the European Parliament in the hearings – even the ones concerning the instances when the Parliament itself was the initiator of the procedure – saw strong counter-reactions from the other institutions using a diverse array of legal pretexts, which are not necessarily convincing.317

310 Final Report of the Future of Europe Group of the Foreign Ministers of Austria, Belgium, Denmark, France, Italy, Germany, Luxembourg, the Netherlands, Poland, Portugal and Spain, 17 September 2012, 7-8 <www.statewatch.org/news/2012/sep/eu-future-of-europe-report.pdf> accessed 10 March 2020. 311 V4 Statement on the Future of Europe <www.visegradgroup.eu/calendar/2018/v4-statement-on-the> accessed 10 March 2020. 312 ‘Minister Delgado receives in Madrid the justice ministers of the Vendôme Group’ (4 June 2019) The Spain Journal <https://thespainjournal.com/minister-delgado-receives-in-madrid-the-justice-ministers-of-the-vendome-group/>; Statement Vendome 30 September 2019 <www.rijksoverheid.nl/binaries/rijksoverheid/documenten/publicaties/2019/09/30/statement-vendome-30-september-2019/Statement+Vendome+30+september+2019.pdf> accessed 10 March 2020. 313 Baltic Summit (18 March 2018) (Estonia, Latvia, Lithuania). It expressed strong opposition on any kind of sanctions against Poland; Belgium/Germany/the Netherlands (march 2019). They proposed a new proposed Periodic Peer Review Mechanism on the Rule of Law. 314 Martin Michelot, ‘The “Article 7” Proceedings against Poland and Hungary: What concrete effects? (Europeum, 6 May 2019) <https://institutdelors.eu/en/publications/__trashed/> accessed 10 March 2020. 315 In June 2018, EU ambassadors informally voted whether to escalate the proceedings against Poland under Article 7 to a formal hearing. 14 voted in favour (Belgium, France, Germany, Luxembourg and the Netherlands (+; Spain, Portugal, Ireland, Finland, Sweden, Denmark, Greece, Cyprus), 4 against (Hungary, the Czech Republic, Slovakia and Croatia) and 9 abstained (Austria, Romania, Italy, Lithuania, Malta, Estonia, Slovenia, the UK and Bulgaria – rotating presidency). 316 Laurent Pech, ‘From “Nuclear Option” to Damp Squib?: A Critical Assessment of the Four Article 7(1) TEU Hearings to Date’ (Verfassungsblog, 13 November 2019) <https://verfassungsblog.de/from-nuclear-option-to-damp-squib/> accessed 10 March 2020. 317 Laurent Pech, Dimitry Kochenov and Sébastien Platon, ‘The European Parliament Sidelined’ (Verfassungsblog, 8 December 2019) <https://verfassungsblog.de/the-european-parliament-sidelined/> accessed 8 May 2020.


Using the evidence for each national government position318, five categories of member states can be elaborated. These are not definitive one and a state may change between categories in different moments because of different reasons.

• Committed enforcers – This category comprises governments that openly and loudly have expressed their support for a stronger role for the EU in enforcing rule of law and/or have advanced specific proposals and/or have openly criticised errand governments.

• Soft enforcers – This category comprises governments that whilst being committed to enforcement of rule of law compliance have adopted a less proactive position: no salient initiatives or criticism. As the previous group, all these voted in favour of hearings and questioned the errand governments (being Austria an exception in both cases)

• Oscillators – This group comprises governments that have changed positions regarding the enforcement of rule of law. This may be due mainly to change in the ideological profile of the government or to internal disagreements on the issue.

• Reluctant anti-enforcers – This category comprises national governments that show reluctance to express criticism of offending states or to endorse strong rule of law enforcement. They show in general a non-belligerent attitude and some of them may be troubled by rule of law issues themselves.

• Strong anti-enforcers – This is the category for member governments that are under article 7 procedures but also governments that have taken a very harsh critical attitude towards enforcement (without being in this situation).

Limited practical role of Article 7 procedure led other political actors at the EU level to undertake actions aimed at strengthening rule of law protection among Member States (such as Rule of law Framework,319 Annual Rule of Law Dialogue in the Council,320 draft of Pact on Democracy, Rule of Law and Fundamental Rights321). Their effectiveness is also limited since any sanction mechanism would require introduction of amendments to the Treaties.

The European political parties. Not only Member States but also political parties are important political actors responsible for handling the rule of law, especially with restricting autocratic politicians belonging to European political ‘families’. European People’s Party (EPP) has been criticized for securing Fidesz in the European Parliament against any political decisions aimed at limiting the government in Hungary. In the case of Poland, Law and Justice does not belong to the main political force and was not provided such protection.322 Social Democrats decided to freeze their relations with the Romanian social democratic member party in April 2019.323 318 Detailed analysis of Member States’ positions regarding Article 7 is presented in Annex 1 to the paper. 319 European Commission, Communication from the Commission to the European Parliament and the Council A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final. 320 Conclusions of the Council of the EU and the Member States meeting within the Council on ensuring respect for the rule of law, Brussels, 16 December 2014, 17014/14. 321 European Parliament, Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)) P8_TA-PROV (2016) 0409. 322 Mauritius J. Meijers and Harmen van der Veer, ‘MEP Responses to Democratic Backsliding in Hungary and Poland. An Analysis of Agenda-Setting and Voting Behaviour’ (2019) JCMS 1; Sargentini and Dimitrovs, ‘The European Parliament’s Role’ (n 305). 323 Ana Maria Luca, ‘European Socialists Freeze Relations with Romania Ruling Party’ (Balkan Insight, 11 April 2019) <https://balkaninsight.com/2019/04/11/european-socialists-freeze-relations-with-romania-ruling-party/>


Additionally, a special procedure was established in order to secure that European political parties meet certain democratic standards. According to Regulation 1141/2014 (amended by Regulation2018/673324) on the statute and funding of European political parties and European political foundations325, European political parties can only receive EU funding if, and as long as, they respect Article 2 TEU. In February 2019 a Spanish NGO, submitted two requests to Parliament to ask the Authority to verify whether two European political parties continued to comply with the core values of the EU. Parliament informed the complainant that the requests were inadmissible, since it did not provide signature of 50 citizens required Parliament’s Rules of Procedure. The European Ombudsman upheld Parliament's decision (Decision in case 1501/2019/MIG on the European Parliament’s decision to declare inadmissible requests to verify that two ‘European political parties’ comply with core EU values). The current state of affairs allows agreeing with R. Daniel Kelemen’s excellent analysis concerning a common feature of many federated entities, where the democratic federal level supports and upholds the autocratic practices at the lower political level.326 EPP’s behavior vis-à-vis Hungary is thus not atypical in the light of the US experience, for instance, which makes it even more problematic, as such tendencies are well known and thus should potentially be combatted with double effectiveness. This has not happened in the EU.

Annual Rule of law Dialogue in the Council. In January 2014 Dutch Advisory Council on International Affairs (AIV) published a report on rule of law in the EU327 and offered proposal of peer review mechanism. In April 2014 the report was sent to the Parliament by Dutch government, who argued that the proposal supplements the Commission initiative on Rule of Law Framework.328 In November 2014, when a discussion about the Commission new Rule of Law Framework was ongoing, Italian Presidency announced that 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’. It was proposed that the aim of encouraging ‘the culture of ‘respect for rule of law’’ will be achieved through a ‘constructive dialogue among the Member States.’329

On 16 December 2014, the Council made a commitment to establish a dialogue among all Member States (within the General Affairs Council) to promote and safeguard the rule of law in the framework of the Treaties. It was arranged as a dialogue ‘based on the principles of

accessed 10 March 2020; Press release: Negotiation is the only route through Brexit impasse (10 April 2019) <www.pes.eu/en/news-events/news/detail/Negotiation-is-the-only-route-through-Brexit-impasse/> accessed 10 March 2020. 324 Regulation (EU, Euratom) 2018/673 of the European Parliament and of the Council of 3 May 2018 amending Regulation (EU, Euratom) No 1141/2014 on the statute and funding of European political parties and European political foundations, OJ L 114I, 4 May 2018, 1-6. 325 OJ L 317, 4 November 2014, 1–27. 326 R. Danien Kelemen, ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union’ (2017) 52 Government and Opposition 211. 327 Advisory Council on International Affairs, The Rule of Law Safeguard for European Citizens and Foundation for European Cooperation, Advisory Report No. 87, January 2014, <www.advisorycouncilinternationalaffairs.nl/binaries/advisorycouncilinternationalaffairs/documents/publications/2014/01/24/the-rule-of-law/The_Rule_of_Law_AIV-Advisory-report-87_ENG_201401.pdf> accessed 22 April 2020. 328 Hirsch Ballin, ‘Mutual Trust’ (n 306) 144. 329 Italian Presidency – Council of the EU, Presidency, Ensuring respect for the rule of law in the European Union, Brussels, 14 November 2014, 16206/14, p. 5.


objectivity, non discrimination and equal treatment of all Member States’, conducted on a ‘non partisan and evidence-based approach’, without prejudice to the ‘principle of conferred competences, as well as the respect of national identities of Member States’ and complementary with other EU Institutions.330 In September 2019, the Finnish Presidency in its discussion paper stated that ‘the Council, as an institution that gathers the ministers of all Member States around the same table, offers a unique arena for exchanging ideas and information about the rule of law.’331

In 2019 the evaluation was conducted by the Finnish Presidency on a basis of questionnaires from the Member States. The Presidency found that the dialogue’s ‘practical implementation (…) could be further developed’ and the dialogue itself should become ‘more result-oriented and better structured’. However, the evaluation stated that ‘annual rule of law dialogue (...) has proved to be a useful mechanism.’ Presidency suggested organizing ‘a yearly stocktaking exercise’ and seminar with relevant stakeholders. Also a desirability to use the Commission’s annual rule of law reports was underlined. The Council also encouraged ‘other Council configurations to organise further and more in-depth discussions on rule of law-related issues falling within their competence’.332

Rule of law dialogue Presidency Topic 2015 Luxembourg Ensuring the respect for the rule of law

The rule of law in the age of digitalisation 2016 Netherlands Migrants' integration and EU fundamental

values 2017 Estonia Media pluralism and the rule of law in the

digital age 2018 Austria Trust in public institutions and the rule of

law333 2019 Finland Evaluation

330 Conclusions of the Council of the EU and the Member States meeting within the Council on ensuring respect for the rule of law, Brussels, 16 December 2014, 17014/14, p. 2. 331 Finnish President, Enhancing Respect for the Rule of Law in the Union: Presidency Discussion Paper, Brussels, 10 September 2019 (OR. en) 12044/19, p. 2, point 9. 332 Conclusions of the Council of the European Union and the Member States meeting within the Council on the evaluation of the annual rule of law dialogue – Draft conclusions of the Council of the European Union and the Member States meeting within the Council on the evaluation of the annual rule of law dialogue, Brussels, 31 October 2019, 13622/19. 333 Presidency conclusions following the annual rule of law dialogue 2018 on the topic ‘Trust in public institutions and the rule of law’, Brussels, 23 November 2018, <https://data.consilium.europa.eu/doc/document/ST-14678-2018-INIT/en/pdf>.


Conclusions

Debate about the scope of the rule of law has not been completed, and its final outcome in the EU context faces additional challenges. An indispensable element of academic discussion on rule of law in such an environment should be a reference to practical aspects of the rule of law in the EU. Furthermore, discussion about the rule of law in the European Union has been conducted mostly from the perspective of Member States worst case studies. The situation when the law is obeyed does not bring much attention, thus assessing rule of law practices as the best ones requires providing detailed context, while a given rule of law standard or its practical application might be considered as the best ones. The research confirmed that both – positive and negative practice – are often interconnected.It proved however, with all power, that rule of law is a practical concept. It also showed major EU shortcomings (mainly political ones) regarding tackling the rule of law backsliding effectively. The way how the rule of law is being implemented affects not only the quality of law, but also political life and economic development – core of the EU integration project. Despite it is closely related with democracy and human rights protection, as those three values (and aims) depend on each other, the rule of law represents a separate value, recognized by the EU law, indispensable for effective application of the EU law, both at the EU and domestic level.

‘It seems obvious that the more the constitutional and rule of law debates are informed by (political) reality, the more practical they are.’334 It’s one of the reasons why practical evaluation of the concept might be however problematic,335 since rule of law cannot be limited to a collection of normative ideals or sum of policies and practices.336 Furthermore, the debate concentrates mostly on shortcomings in the Member State, without dealing with the rule of law at the EU level.337 One of the problems with ‘measuring’ rule of law is that values are more difficult to enforce than the ‘law’.338 In the case of the EU, additional difficulty lies with the fact that democracy and rule of law were not the EU’s founding ideas for a long time.339 Verification of vague (or even contested) rule of law notion with its practical aspects, especially political practices, may cause tensions.340 The ongoing debate conducted at the EU level shows them precisely.

The paper offers analysis of the best and worst rule of law practices on national and supranational level. It relies on three types of practices: institutional, procedural and political.

334 Adams, Hirschballin and Meuwese, ‘The Ideal and the Real’ (n 28) 17. 335 Sajó, ‘The Rule of Law as Legal Despotism’ (n 87) 374. Sajó argues that ‘while RoL may be a good ground of criticism on the political and theoretical level, it remains problematic when it comes to the evaluation of a legal system for practical purposes (investment, foreign aid, international sanctions) and as a legal concept in the application of the law’. 336 Kristina Simion and Veronica L. Taylor, ‘Professionalizing Rule of Law: Issues and Directions’ (2015) Folke Bernadotte Academy 15: ‘We suggest that ‘rule of law’ is simultaneously a range of normative ideals; a rallying cry for political and policy reforms; and a well-established and expanding domain of transitional policy and practice. (…) We do not take the position that rule of law is simply the sum of those policies and practices. We suggest, rather, that rule of law practice and its practitioners are influenced by the theoretical and ideological concepts of rule of law, while also helping to shape them through practical application’. 337 Gianluigi Palombella, ‘Illiberal, Democratic and Non-Arbitrary? Epicentre and Circumstances of a Rule of Law Crisis’ (2018) 10(5) Hague J Rule Law 8. 338 Kochenov, ‘The EU and the Rule of Law’ (n 260). 339Ibid 427. 340 May, The Rule of Law (n 1) 161.


From the national perspective, it provides examples of how best practices, despite technical and legislative differences, might lead to achieving rule of law targets – limiting the public power. Furthermore, the paper shows that each type of the rule of law practices are interrelated and to a great extent its practical role might be determined by local context – constitutional culture, political tradition – and not only the text of legal provisions. That is why, as underlined by the Venice Commission, that in every State a ‘robust political and legal culture supports particular Rule of Law mechanisms and procedures, which should be constantly checked, adapted and improved.’341 Finally, practices (and particular legal amendments) taken in isolation will not provide a broader picture unless the combined effect of overall elements is considered.342 Different rule of law elements (i.a. regarding judicial independence) are often interconnected. For instance, institutional arrangements only when supplemented with political (unwritten) rules and the final outcome is able to achieve the aim – limit the public power.

The analysis of the supranational practices regarding rule of law protection highlights attempts of the EU institutions to tackle the ongoing rule of law crisis. The institutional aspect provides that judicial review of the EU acts is secured, however the role and the powers of the main expert body (Fundamental Rights Agency) in the rule of law field is limited. Procedural practices regarding infringement actions despite crucial successes achieved recently,343 still need to reconsider improvements regarding systemic approach to rule of law infringements. Finally, analysis of the political practices presents a broad scope of possible actions, where the main tool is still – and shall remain – a political debate among Member States.

341 Venice Commission, Rule of law Checklist, para 42. 342 Toggenburg and Grimheden, ‘The Rule of law and the Role of Fundamental Rights’ (n 272) 153. 343 Case C-619/18, Commission v Poland (Supreme Court), (Grand Chamber) 24 June 2019.


Annex. Article 7 – mapping Member States’ positions

By Carlos Closa*

Governments have positioned themselves on rule of law issues in several occasions since 2012. The most common way to air their views is by means of collective statements declaration within specific groupings such as the Friends of the Rule of Law, the Visegrad group and multilateral and bilateral summits. These fora have served for positions both against and in favour of stronger enforcement. The table below is an attempt to map out the positions that the 28 member states of the EU have adopted on the rule of law, its violations and possible enforcement of Article 7 TEU and other rule of law associated instruments since 2012. It does not pretend to be a complete and accurate account of the situation (even though it conveys an adjusted picture) and it serves to the preliminary purpose of typifying positions as an initial step to explaining them.

Member State Position

Austria The Austrian government subscribed to the Friends of Europe Report and it took part in the Friends of the Rule of Law meeting in Rome. The Austrian government abstained in the June 2018 vote on holding a formal hearing on Poland. However, Austria held the presidency during the second half of 2018 when the three hearings on Poland were held. It did not raise any question during these meetings, nor it did in the 2019 one (16th September hearing on Hungary).

Belgium The Belgian government had participated in the Future of Europe Group (in 2012). In February 2016, FA Minister advanced his proposal of a periodic assessment of the situation of the rule of law and fundamental rights in the EU countries. This evaluation and dialogue were proposed to take place at the political level of the General Affairs Council of EU Ministers of Foreign Affairs. The countries in the Council could engage in dialogue, ask questions and make recommendations, with equal treatment for each Member State. The aim was to avoid prejudice to the principles of the rule of law in the EU countries. The FA Minister took part in the Friends of Rule of Law meeting where FA Minister Reynders reiterated his call. The Belgian government voted in favour of a hearing on Poland and it questioned both Hungary and Poland in their respective hearings.

In March 2019, Belgium, together with Germany and the Netherlands, proposed a Periodic Peer Review Mechanism on the Rule of Law: a regular dialogue among Member States on the functioning of the Rule of Law is in our respective societies; a new mechanism which allows us to have inclusive and open discussions amongst peers. (...) such a mechanism should allow a substantive exchange of views on the way the rule of law is implemented, monitored, guaranteed and enhanced within the respective legal and political systems of each of us Member States. This is not about another corrective instrument or even the possibility of sanctions. We aim for a lean and effective mechanism without duplication of existing instruments. Such a mechanism would allow for a dialogue on the protection and promotion of Rule of Law in all our countries, on an equal footing and on a regular basis – it would thus fill an important gap in our EU tool box and give us the opportunity to share best practices. Our legal systems may vary and our national identities may differ, but the Rule of Law is a core value we all share.

* Additional input provided by Francisco Duarte (Portugal) and Bob Roth (The Netherlands), researchers at the EUI, Carlos Closa (IPP-CSIC/STG-EUI).


Bulgaria Bulgarian government assumed the EU rotating presidency in January 2018 and in that month, Bulgarian Presidency Boyko Borísov expressed his worries about a vote on Poland’s breach of Article 7. He declared: we are Friends of Poland, we share the same past. There will be a solution before applying article 7 because it unleashing the suspension of voting rights would create a dangerous precedent (El País 11 January 2018). Such a vote should be avoided: If we have to go voting, we will have sleepless nights to vote. I hope we do not have to face this. The message is: Poland should be listened to (Foreign Minister Ekaterina Zaharieva).

The June 2018 Council vote on whether to hold a hearing on Poland happened under its presidency and the Bulgarian government abstained. The government has not raised any questions in the four hearings held so far. In September 2018, after the hearing, the Defence Minister Krasimir Karakachanov declared: Today it is Hungary, tomorrow it could be Poland, and one day it could be Bulgaria in the dock. Central and Eastern European countries should act in solidarity and help each other.

Croatia The Croatian EU ambassador voted against holding a formal hearing on Poland (June 2018). The government did not ask any questions to neither Polish nor Hungarian governments in the respective hearings.

Cyprus The Cypriot government voted in June 2018 in favour of holding a hearing on Poland and intervened with questions in two of the hearings on Poland.

Czech Republic The government of the Czech Republic adhered to the V4 Statement (31 January 2018): EU Institutions should treat all Member States equally and act strictly within the remits of their respective Treaty-based competences. The EU should respect the right of Member States to carry out domestic reforms within their competences. The government also voted against holding a hearing on Poland (June 2018) and it did not raise questions during the hearings.

Denmark The Danish government is a part of the Future of Europe Group and in March 2018 subscribed to a Joint Letter signed by four governments which called for a new mechanism to safeguard the fundamental values of the EU, secure the compliance with them, and for the Commission to take an increased role in it. Denmark also took part in the Friends of the Rule of Law meeting in Rome on 3 October 2016, voted in favour of holding a hearing on Poland (June 2018) and asked questions at the Article 7 hearings.

Estonia The Estonian PM Jurim Ratas declared (in the context of a Joint press conference with his Polish, Lithuanian and Latvian counterparts in March 2018) that All channels of dialogue should be used, dialogue maintained, and cooperation maintained. Any problems related to voting and taking away the right to vote – I do not think that it should happen at all, it would be a step too far. The Estonian government abstained in the vote on holding a hearing (June 2018). However, Estonia has been the only CE member state that asked questions (even though only once) to Polish government in the Article 7 hearings. In September 2019, the government also expressed a cautious view on linking structural funds to the rule of law compliance.

Finland The Finnish government signed the March 2013 Four Governments Joint Letter that called for a new mechanism to safeguard the fundamental values of the EU, secure compliance, and for the Commission to take an increased role in it. It also took part in the Friends of the Rule of Law meeting (October 2016) and it voted in favour of holding a hearing on Poland (June 2018). It raised questions in the hearings under Article 7 on Poland (but not on Hungary, since the Finish government held the rotating presidency).


The Finnish government became visibly active under its rotating Presidency of the Council. PM declared that the rule of law is in the front and centre in the Finnish Presidency. We are committed to develop the rule of law instruments: rule of law dialogue and the mechanism within Multiannual Financial Framework (MFF). The Presidency programme (July-December 2019) singled out ‘Strengthening the rule of law’ as one of the key themes. It argued that Finland promoted a comprehensive approach, meaning to consider EU’s rule of law instruments as mutually complementary. Facing attacks from PM Orbán, Minister of European Affairs Tytti Tuppurainen declared (27 July 2019): This is not a process that was set in motion by Finland against Hungary, but rather an initiative of the European Parliament. The Parliament made a decision a year ago that obliged the Council to discuss Hungarian matters and hear Hungary out. Finland is now doing what we are required to do as the country serving as European Council President. We lead the conversations; we are by no means prosecutors. In November 2019, the Presidency called for a second hearing on Hungary to be held on December 10.

France The French government subscribed to the Future of Europe Group Report (2012). In 2016, it also stated jointly with the governments of Germany and Sweden (July Tegel Summit), that we need to strengthen these [instruments to deal with rule-of-law-related issues] and use them as a framework for a constructive and proactive dialogue. We reaffirm our commitment to contribute further to the mechanism established in the framework of the General Affairs Council.

The then-hopeful President Macron anticipated his policy in an interview in April 2017: le cas de la Pologne soit examiné dans son intégralité. Je veux que sur le non-respect des droits et des valeurs de l’Union européenne, des sanctions soient prises. Les traités le prévoient. On ne peut pas avoir une Europe qui débat de la décimale après la virgule et qui, lorsque vous avez un pays membre qui se comporte comme la Pologne ou la Hongrie, sur des sujets liés à l’université, aux réfugiés, à nos valeurs fondamentales, on décide de ne rien faire. By the end of 2017, the French government declared its readiness to back further Commission action together with Germany after their 2017 bilateral summit: If the Commission thinks it has to trigger the [sanctions] procedure, we have a very clear and consistent position – we'll support the Commission. Macron explicitly committed to support the initiatives taken by the European Commission every time it defends the rule of law. And on this, there will be no complacency. Commenting on the EP Resolution on Hungary that triggered Article 7, French Minister De Montchalin (speaking on behalf of France and Germany) described the general picture in the parliament’s report as worrying and said it was Hungary’s responsibility to demonstrate that the issues raised had been closed. She further added that the threats to the rule of law and fundamental rights in Hungary concern us all.

The National Assembly adopted a Resolution in October 2018 on the Respect of the Rule of Law in the EU targeting Hungary. The Resolution called for a European network of legal experts and non-governmental actors to be established in order to warn of any state abuses. French MPs from the right-wing ‘Les Républicains’ party refused to take their seats during the adoption of the resolution. The text implicitly criticised Poland, Hungary and Romania for their infringements of the rule of law and supported the efforts of Brussels to bring them into line, while underlining its limitations.

In a Joint Statement with the German government on 10. April 2019, they expressed concerns that the effects of legislative changes introduced in Poland could undermine the independence of the judiciary, which the EU believes undermines the separation of powers. We hope that the infringement procedure launched by the European Commission last week regarding the new disciplinary regime for judges will allow some improvements, in particular regarding the right to an effective remedy


before an independent and impartial court. In relation to Hungary, the Statement declared that the fact that non-governmental organizations and universities are forced to leave the country due to restrictive measures introduced by the government is a cause for concern for all of us. It is therefore to have a discussion about fundamental values and the rule of law with the Hungarian government here in the Council.

Both governments declared after the Council hearing on Hungary (on 16. September 2019): The threats to the rule of law and fundamental rights in Hungary concern us all. The French government, together with Germany, proposed to hold the first meeting on Poland and they obviously voted in favour and posed questions both governments (Poland and Hungary) at the hearings held.

Germany The German government subscribed to the Future of Europe Group Report (2012) and, in March 2013, it joined three other governments in a Joint Letter to President Barroso calling for a new EU mechanism to safeguard the fundamental values of the EU, secure compliance, and for the Commission to take an increased role in it. In a Joint Statement with the Ministers for European Affairs of France and Sweden (July 2016 Tegel Summit), the German government argued that we need to strengthen these [instruments to deal with rule-of-law-related issues] and use them as a framework for constructive and proactive dialogue. We reaffirm our commitment to contribute further to the mechanism established in the framework of the General Affairs Council. The German government has issued strong warnings: on April 2017, it warned the Hungarian government on the shutting down of the CEU. Then, in December 2017, together with the French government, it stated that it was prepared to support the Commission if it triggered Article 7 against Poland despite Merkel taking a slightly softer approach in hope that the dialogue between the Commission and Poland would render the procedure ‘unnecessary’.

The German government has actively acted in the declarative side pressuring both Polish and Hungarian authorities. In a Joint Statement with the French government on 10 April 2019, they expressed concerns that the effect of legislative changes introduced in Poland could undermine the independence of the judiciary that the EU believes would undermine the separation of powers. We hope that the infringement procedure launched by the European Commission last week regarding the new disciplinary regime for judges will allow some improvements, in particular regarding the right to an effective remedy before an independent and impartial court. With regards to Hungary, the Joint Statement said: the fact that non-governmental organizations and universities are forced to leave the country due to restrictive measures introduced by the government is a cause for concern for all of us. It is therefore to have a discussion about fundamental values and the rule of law with the Hungarian government here in the Council. Both governments declared after the Council hearing on Hungary (on 16. September 2019): The threats to the rule of law and fundamental rights in Hungary concern us all. Both governments considered the general picture in the parliament’s report as worrying and said it was Hungary’s responsibility to demonstrate that the issues raised had been closed.

In July 2017, the German government drafted a document, A chance for the rule of law that constitutes the most solid governmental basis for specific policy on enforcement of compliance with EU values. The Federal Minister of Justice Heiko Maas declared that the independence of Poland’s judiciary was in danger. The EU cannot stand by and watch. The law is the very foundation of the EU. It is only right that the European Commission is considering specific sanctions. A state that shows such scant respect for the rule of law must be prepared to accept political isolation. The federal government spokesperson Steffen Seibert added that the Federal Government considers it right and necessary that the European Commission should discuss these questions with the Polish government as it has done in the past months


with other issues having a potential impact on the rule of law. Finally, Maria Adebahr, deputy spokesperson of the Federal Foreign Office, declared that the separation of powers is an especially precious asset in a state based on the rule of law. This is why the Federal Government supports the European Commission in its dialogue with the Polish government within the framework of the so-called ‘rule-of-law procedure’. We hope that the Polish side will work constructively with the Commission and implement the recommendations, she said.

On 20. June 2017, the German government and the German Länder issued a Joint statement on the EU Cohesion Policy where they declared that beyond 2020 it would be worth exploring the possibility of making EU cohesion funding subject to compliance with the basic principles underpinning the rule of law (point 34). This was followed in March 2019 by the Proposal for a Periodic Peer Review Mechanism on the Rule of Law launched together with Belgium and the Netherlands. This Mechanism would be a regular dialogue among Member States on the functioning of the rule of law. The new mechanism will allow to have inclusive and open discussions amongst peers on the way the rule of law is implemented, monitored, guaranteed and enhanced within the respective legal and political systems of each Member State. Such a mechanism would allow for a dialogue on the protection and promotion of Rule of Law in all our countries, on an equal footing and on a regular basis giving the opportunity to share best practices. The statement argued that whilst our legal systems may vary and our national identities may differ, but the Rule of Law is a core value we all share.

The German government, together with France, proposed to hold the first meeting on Poland and they, rather unsurprisingly, voted in favour and asked questions to both governments (Poland and Hungary) at the hearings held.

Greece The Greek government did take part in the Friends of the Rule of Law meeting (October 2016) and it voted in favour of holding an Article 7 hearing on Poland in June 2018. However, the Greek government has not asked any questions to either of the two governments during these hearings.

Hungary The EP voted in favour of activating the preventive stage of Article 7 procedure on 12. September 2018. The Hungarian government subscribed to the Visegrad Statement (31. January 2018) that declared: EU Institutions should treat all Member States equally and act strictly within the remits of their respective Treaty-based competences. The right of Member States to carry out domestic reforms within their competences should be respected.

Ireland The Irish government voted in favour of holding an Article 7 hearing on Poland (June 2018) and it raised questions in the hearings on Poland (but not on Hungary). The Irish government also welcomed the Commission’s July 2019 proposals for increased supervision and enforcement of rule of law standards. Ireland’s Minister of State for European Affairs Helen McEntee also welcomed the Finnish prioritisation of the issue in its presidency, and said it was crucial the EU was perceived to treat all member states equally.

Italy The Italian government participated in the Future of Europe Group under Mario Monti Premiership. Italy held the rotating Presidency in the second half of 2014 and it handled the creation of the Council Dialogue. In November 2014, the Italian Presidency sent a letter to the Council entitled Ensuring respect for the rule of law in the EU that proposes a constructive dialogue (on the rule of law). The Italian government (under Matteo Renzi) also hosted the October 2016 meeting on the Friends of the Rule of Law meeting.


Under the Conte government (supported by La Lega and M5S), evidence shows a different profile. It abstained on the 2018 vote on holding a hearing on Poland (In September 2018), the two coalition parties split in EP´s vote on activation of Article 7 against Hungary: Lega votes against; the M5S votes in favor. They also split on the EP vote regarding the Resolution that approved cuts in funds for states that violate rule of law. During 2019, Salvini sought to create a eurosceptic alliance for EP elections (in January, he met the Polish government and, on 2. May he travelled to Hungary to meet Viktor Orbán). He sought the creation of a nationalist, conservative and anti-immigration alliance that, following Orbán’s view, could move the EPP towards the right.

The pattern of questioning in hearings also shows these changes. The Italian representatives raised questions in only one of the hearings on Poland but they were much more active in the one on Hungary (on September 2019 with the Conte II government and with Salvini out of government).

Latvia Latvia held the rotating presidency of the Council in the first half of 2015. Asked to take part on an EP debate on the human rights situation in Hungary (May 2015), the Presidency initially declined participation and stated that the Council had no position on the issue. After the Trilateral Baltic summit (19 March 2018), the Latvian PM declared that we would be against any punishments imposed on Poland. The Latvian government abstained in the vote about holding a hearing on Poland (June 2018) and it did not raise any question in any of the hearings held.

Lithuania The Lithuanian government positioned itself on rule of law issues and application of Article 7 to Poland after the Summit with Poland, Latvia and Estonia (9 March 2018). PM Saulius Skvernelis declared that one must encourage dialogue and seek a compromise solution; he also said that we understand Poland, we understand its goals related to the reform of the justice system and, more decisively, if there were any restrictive measures imposed on Poland, Lithuania would support Poland. Consistently with these statements, the Lithuanian government abstained in the Council vote on whether to activate Article 7 on Poland and it did not raise any questions in any of the hearings.

Luxembourg The Luxembourgish government subscribed to the 2012 Future of Europe Group Report and participated also in the October 2016 meeting of Friends of the Rule of Law Group. After this meeting, the FA Minister Jean Asselborn explained: it is a crucially important element of the European Union to respect the primacy of law. He also recalled the fact that Luxembourg remains committed to any initiative which contributes to the protection and further development of the primacy of law at the heart of the Union. In September that year, the Luxemburgish Foreign Affairs minister declared that Hungary should be excluded from the EU. The Luxembourg government voted in favour of holding an Article 7 hearing and raises questions in all hearings.

Malta The Maltese government abstained in the council Vote on Article 7 proceedings in the hearing on Poland in June 2018. It has not asked questions to any of the two governments during the respective Article 7 hearings.

The Netherlands The Dutch government has been one of the leading actors pushing for more assertive EU actions. In 2012, the government subscribed to the Future of Europe Group Report and a year later (March 2013) it joined three other governments in a Joint Letter to President Barroso calling for a new EU mechanism to safeguard the fundamental values of the EU, secure compliance, and for the Commission to take an increased role in it. The Dutch government also took part in the Friends of the Rule of Law meeting (October 2016).


During 2018, the Dutch Parliament discussed Rule of Law Backsliding in Hungary and Poland. PM Rutte declared in a speech on 3 March 2018 that those who say that the rule of law is a national matter only, and that the EU should focus solely on the single market have it all wrong: the single market can flourish only if the rule of law applies in all member states, and if all businesses know their investments are safe and any disputes will be resolved by judges who are independent of the government in office. Erode the rule of law and you erode the single market. Erode the single market and you erode the Union. That’s why it’s vital for countries to do what they’ve agreed to. A deal is a deal. Later in June, he declared during an EP debate that he would support the Article 7 proceedings against Poland ‘fairly and squarely’. There can be no democratic legitimacy without the rule of law, Rutte said. Membership of the EU is not a statement of intent. It means opting unconditionally for freedom of the press, an independent judiciary, legal certainty and all those democratic achievements that bind us together as a community.

The Dutch parliament presented its Report on Rule of Law Developments in the European Union (13 March 2019) (after the Hungarian government denied audience to a Dutch parliamentary delegation to investigate the rule of law situation in Hungary). The Report recommended that the Dutch government (1) involves NGO activity, (2) adopts an active role in proceedings ECJ and infringement actions, (3) intensifies efforts to develop a fully-fledged peer review mechanism, (4) on the new EU budget, attention should continue to be emphatically directed at the relationship between receiving EU funds and rule of law values, (5) the safeguarding of the rule of law must emphatically remain on the European agenda for the coming years, (6) a rule of law programme, as part of Dutch human rights policy that is aimed at countries in the Council of Europe where the rule of law is in the danger zone, can help in the exchange of knowledge between judges and lawyers, public authorities like the ombudsman, representatives of non-governmental organisations, and the media.

The same month (March 2019), the Netherlands joined Belgium and Germany in a proposal on a Periodic Peer Review Mechanism on the Rule of Law: a regular dialogue among Member States on the functioning of the Rule of Law is in our respective societies; a new mechanism which allows us to have inclusive and open discussions amongst peers. (...) such a mechanism should allow a substantive exchange of views on the way the rule of law is implemented, monitored, guaranteed and enhanced within the respective legal and political systems of each of us Member States. This is not about another corrective instrument or even the possibility of sanctions. We aim for a lean and effective mechanism without duplication of existing instruments. Such a mechanism would allow for a dialogue on the protection and promotion of Rule of Law in all our countries, on an equal footing and on a regular basis – it would thus fill an important gap in our EU tool box and give us the opportunity to share best practices. Our legal systems may vary and our national identities may differ, but the Rule of Law is a core value we all share.

Following Commission’s 2019 proposals, the Dutch government outlined its position in a letter to the Dutch Parliament (29 May 2019). The government committed to the promotion of ‘rule of law culture (of the awareness of its meaning and importance)’; the prevention of RoL backsliding, and the enforcement of RoL principles in case of backsliding. In relation to the second item, the Dutch government saw potential for extending the Justice Scoreboard to administrative and criminal law, and its linking with the European Semester, and emphasises that the Commission/JHA Council could assist by providing reform plans (RoL is still mostly a national responsibility). And in relation to enforcement, the Dutch government committed to push in the Council for the Article 7 procedure. Secondly, it emphasised the importance of the use of infringement procedures (especially in terms of judicial independence) and supports the Commission in this respect. Thirdly,


the Dutch government supported protecting the EU Budget in relation to structural deficiencies in relation to the MAF, and advocates for a conditionality requirement.

In an ulterior hearing at the Parliament, FA Minister Blok declared that the Dutch government supports a move in the Council to discuss specific MSs (rather than merely discussing the RoL in general terms). Second, the Dutch government confirms its support for conditionality requirements in the context of MAF. Third, the Dutch government supports BE/DE proposal concerning peer review mechanism. Finally, the Dutch government also supports the involvement of NGO activity (especially concerning media freedom and democratic expression).

The Dutch government takes part in the Vendôme group, within which it raised a discussion in 2019 on the way in which EU justice ministers can contribute and take part in this matter. The Dutch government has voted in favour of holding an Article 7 hearing on Poland (June 2018) and it has posed questions to both Polish and Hungarian governments during these hearings.

Poland The Commission opened the preventive stage of Article 7 procedure against Polish authorities on 20. December 2017. The Polish government subscribed to the Visegrad Statement (31 January 2018) that declared EU Institutions should treat all Member States equally and act strictly within the remits of their respective Treaty-based competences, according to which the right of Member States to carry out domestic reforms within their competences should be respected.

Portugal The Portuguese government subscribed to the Final Report of the Future of Europe Group (2012) and took part in the Friends of the Rule of Law meeting (October 2016). It voted in favour of holding a hearing on Poland under Article 7 and raised questions during the hearings. The PM Costa declared in March 2018 that Europe is first and foremost a community of values. Being European means belonging to a shared system of values: Peace; unconditional defence of democracy, the primacy of the rule of law. However, the Portuguese PM stresses very much the idea of national identity and freedom to choose a domestic course of action: Sharing the same values does not mean forsaking our identity, or ditching our freedom to make our own choices. The future of Europe is not compatible with a single one-track way of thinking. Democracy of Europe cannot be forced into the straightjacket of the belief that there is no alternative. Costa was referring to Portuguese alternative financial and macroeconomic policy, as well as to the idea that there was another way to austerity and not essentially to the rule of law. And on 2. December 2019 FA Minister Santos Silva declared that Article 7 is one of the few instruments we possess to assess the democratic nature of the Rule of Law in some Member States and to act when that assessment turns out negative and that It is not possible, after the Treaty of Lisbon, for someone to sustain the theory of the so-called illiberal democracies.

Romania The Romanian government held the Council rotating presidency in the first half of 2019. Rule of law did not appear in the agenda of the first Council meeting (8 January 2019) and a spokesperson declared: We as a presidency have to act according to the rules of procedure, our objective is to favour the dialogue between the countries in question and the EU institutions. Romanian government presented its presidency as an honest broker. Consequently, no hearings were held under Romanian Presidency (interrupting the series initiated by the Austrian Presidency). The Romanian government abstained in the Council vote regarding the call for an Article 7 hearing on Poland. It has not raised any questions in any of the hearings.

Slovenia The Slovenian government abstained in the vote on holding a hearing on Poland (June 2018) and it has not asked questions at any of the hearings held.


Slovakia The Slovakian government participated in the Friends of the Rule of Law meeting (October 2016), being the only CE member state at this meeting. But two years later (January 2018), the Slovakian government also adhered to the Visegrad Group Statement on the Future of Europe: EU Institutions should treat all Member States equally and act strictly within the remits of their respective Treaty-based competences. The EU should respect the right of Member States to carry out domestic reforms within their competences. The Slovakian government also opposed to hold a hearing on Poland (June 2018) and it did not raise questions at any of the hearings. In July 2019, the new Slovakian President changed the tack: he called on the Visegrad 4 countries to respect the rule of law and to avoid being regarded as weakening or dissolving the European Union; the Visegrad cooperation must represent common values like the rule of law, freedom and cooperation.

Spain The Spanish government subscribed to the Future of Europe Group Report (2012) but it has kept a low profile on the issue. PM Rajoy avoided any criticism of Poland during the Bilateral summit between the countries (30 June 2017). However, in June 2018 with the new Socialist government in power, it voted in favor of holding the hearing on Poland. In September 2018, FA Borrell criticized both Orbán and Salvini, depicting them as democracies that do not respect rule of law nor rights of minority nor parliamentarian good functioning rules. In the following bilateral summit (March 2019), Borrell argued, in relation to the Belgian-German Permanent Peer Review Proposal, that Spain supports all European initiatives that reinforce compliance with the rule of law in a context of growing challenges to the EU's democratic rules. But at the same time, the Spanish Government asks for prudence in the creation of new evaluation mechanisms that can collide with existing ones. We always support greater control of the rule of law, but we must be clear about the added value of a new scheme. The Socialist government stressed continuity in their position with previous ones declaring that Spanish governments have always sided with the Commission and the Franco-German axis. The Spanish representatives have questioned both Polish and Hungarian governments at the hearings.

Sweden The Swedish government took part in the October 2016 Friends of the Rule of Law meeting. In a Joint Statement with the Ministers for European Affairs of France and Germany (July 2016 Tegel Summit), the Swedish government argued that we need to strengthen these [instruments to deal with rule-of-law-related issues] and use them as a framework for constructive and proactive dialogue. We reaffirm our commitment to contribute further to the mechanism established in the framework of the General Affairs Council.

In April 2017, Swedish PM warned Hungary that countries that do not take their responsibility when it comes to migration policy should not be able to have access to support from the EU in the same way as it is currently the case. In 2018, the Swedish government voted in favour of holding an Article 7 hearing on Poland and it put forward many questions to both governments at the respective hearings.

UK The UK has adopted a distanced attitude on the issue. Already in 2014, the UK government criticised the Commission Framework arguing that a constructive, consensus-seeking dialogue between Member States is the most appropriate and effective means of addressing any obvious deterioration in the rule of law in a Member State. We therefore have concerns about the purely Commission-led nature of the framework, and consider that recommendations on action to address rule of law concerns would carry greater weight if endorsed by the Member States. Further, in the opinion of the British government, the Treaties confer clear roles on the Council and the European Council in relation to the rule of law; the Government does not want to see these undermined by the proposed framework. (...) So while the Commission has a legitimate role in assessing whether a referral needs to be made


under Article 7 TEU and formulating a process that guides this work, this should not supersede the Council's role.

Beyond that, the UK government expressed sympathy for Poland in EU judiciary dispute. Theresa May declared on 21 December 2017 that these constitutional issues are normally, and should be primarily, a matter for the individual country concerned. The British government abstained in the vote on whether to hold an Article 7 hearing on Poland (June 2018) and did not raise any questions during the hearing. Furthermore, no British minister attended the hearing on Hungary (September 2019), in line with Boris Johnson’s policy of skipping most EU meetings unless the UK is deemed to have ‘a significant national interest in the outcome.’


RECONNECT, led by the Leuven Centre for Global Governance Studies, brings together 18 academic partners from 14 countries.

Find out more about the RECONNECT project at www.reconnect-europe.eu

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