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Davor Jancic – The Rule of Law Conundrum: Bolstering or Eroding the EU?

  1. Introduction

As a cornerstone idea of liberal democracy, the rule of law seeks to guarantee that government and governance operate in accordance with the law and not outside the boundaries of the law, so that the exercise of sovereign authority within a polity is not arbitrary but subject to the requirements of justice, fairness, efficiency and accountability. The rule of law in the EU is a value of foundational importance (Art. 2 TEU) and its practical operation reflects the diversity of political thought, legal doctrine and constitutional design that have inspired the EU’s own creation.

A postnational multilevel construct sui generis, the EU has been erected on the assumption that the rule of law is a constitutional tradition common to all of its 28 Member States (Art. 2 TEU) and respect for it is an explicit condition for EU membership (Art. 49 TEU). By virtue of the principle of sincere cooperation, the Member States are under a duty to refrain from any measure that could jeopardize the attainment of EU objectives (Art. 4(3) TEU), one of which is to promote its values (Art. 3 TEU), including notably the rule of law. They must also ensure to adopt all necessary measures to implement EU law effectively, because that is a common EU interest (Arts. 197(1) and 291(1) TFEU). Conversely, the EU is obliged to respect the Member States’ national identity, inherent in their fundamental structures, especially those in the political and constitutional spheres (Art. 4(2) TEU). This polycentric, symbiotic nature of the EU conditions the definition and functioning of the rule of law within its midst.

Contemporary legal research in the EU context is invited to address the implications of this dual structure of the rule of law concept and the following analysis identifies which essential elements condition its operation. To this end, I discuss the substantive and, to a lesser extent, the procedural and external dimensions of this concept in order to make the argument that the EU concept of the rule of law presents legal research with the challenge of tackling the fundamental problem of the locus of the authority to enforce the rule of law.

 

  1. Substantive Elements of the Rule of Law

Emphasizing the governmental accountability element of the rule of law concept, Von Bogdandy and Ioannidis have argued that the rule of law in the EU is threatened by systemic deficiencies, not only because the administrative and judicial institutions of some of the Member States might be acting contrary to the law, but, pertinently, because they lack the will or resources to ensure the observance of the law by private actors.[1] This in turn thwarts the effet utile of EU law, frustrates legal certainty, and withdraws the citizens’ and Member States’ trust in and reliance on the institutions of public power for the fulfillment of social expectations in the situations regulated by law. Examples thereof include Greece’s non-enforcement of tax and accounting laws that caused its financial debacle, Italy’s non-execution of judgments, Bulgaria’s and Romania’s inability to stem corruption and organised crime and guarantee independent judiciary,[2] France’s questionable expulsions of Roma, and Hungary’s illiberal constitutional changes and media freedom restrictions.[3]

All of these instances run afoul of the rule of law and raise the question of the EU’s capacity to defend its values once a country has already acceded to the EU. The sanctioning mechanism laid down in Article 7 TEU, which may lead to the suspension of the infringing Member State’s voting rights, has never been triggered and is held by many observers to be too onerous, intrusive, inhibitive and otherwise counterproductive given its punitive rather than constructive character. Equally ill-suited for eliminating systemic breaches of the rule of law are infringement proceedings (Art. 258 TFEU), for they relate to individual violations of a concrete provision of EU law, whereas the rule of law in the EU context could also be jeopardized by any other domestic legal or political action that bears no immediate link with EU law. Using the EU Charter of Fundamental Rights to enforce compliance with the rule of law proves insufficient as this document can only be employed against violations that occur when Member States implement EU law but not when they act outside this framework in a purely internal matter (Art. 51(1) thereof). Construing EU citizenship as giving standing to individuals seeking EU fundamental rights protection against the Member States through judicial redress before both national and EU courts is one possible way of circumventing this limitation.[4] Establishing a Copenhagen Commission to review the Member States’ adherence to the rule of law, as advocated by Müller, is another.[5]

Yet, a vital prerequisite for a further crafting of any legal vehicle aimed at enabling the EU to enforce the rule of law is the fact that the very existence of an authoritative EU mechanism to safeguard the rule of law has received domestic endorsement. The Czech Constitutional Court’s ruling in its first Lisbon Treaty judgment, namely that the aforesaid sanctioning mechanism is compliant with the Constitution because it upholds the values deeply embedded in the material core of the Czech legal order,[6] shows precisely the interdependence and harmony between the two levels of governance in ensuring the observance of the rule of law.

The European Commission, as the guardian of the Treaties, has indeed been vigilant and warned already in 2003 that the application of Article 7 TEU is not confined to areas covered by EU law but extends to areas where Member States act autonomously.[7] In March 2014, the Commission proposed a new framework for strengthening the rule of law in the EU, which it sees as encompassing the following essential elements: legality as a means of securing a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law.[8] The new framework foresees a preventive process that is aimed at obviating the activation of Article 7 sanctions on the basis of a “structured exchange” with the non-compliant Member State.[9] The exchange relies on dialogue with domestic authorities, issuance of a substantiated opinion and recommendation on rule of law compliance, and, finally, of anticipated follow-up action by the Member State concerned. This initiative has sparked various reactions, such as by the Meijers Committee,[10] the Human Rights Watch,[11] and the Hungarian Academy of Sciences,[12] which expose the weaknesses of the Commission’s approach. The protection of the rule of law within the EU therefore remains a critical challenge of unprecedented currency.

 

  1. Procedural Elements of the Rule of Law

Turning to the procedural elements of the rule of law, the idiosyncrasies of the EU legal order raise the question of the source of legal authority that would entitle the EU to demand action by the Member States towards strengthening the rule of law when its own decision-making processes through which this would be done are, depending on the standards applied,[13] themselves democratically scant. Arguing that legitimacy repositories at the EU level have been depleted, Weiler indeed underlines the centrality of domestic legal systems, decision-making processes and political structures – in particular national legislative, executive, judicial and media institutions – in engendering a solution to the constitutional, financial and economic crises in the EU.[14] This view reflects the fragility of the EU in imposing solutions that cut deeply into the internal affairs of the Member States, among which the rule of law features very highly.

The transparency element of the rule of law at the EU level (Art. 15 TFEU), requiring openness and publicity in the dealings of EU institutions and providing for citizen access to their documents is another procedural element that has so far been unable to generate greater popular trust in the EU legal and institutional machinery.

Attempts at promoting the 2014 European Parliament elections as a competition among Spitzenkandidaten for the Presidency of the European Commission as a ‘Government of the EU’ of sorts constitute yet another procedural avenue for buttressing the accountability and participatory elements of the rule of law in the EU’s political system.[15]

However, as highlighted by Mendes, the rule of law in the EU is not only prejudiced by internal factors; it may also be harmed by the reception of international and transnational decisions derived from sources of legal authority that do not guarantee equivalent procedural standards of participation in decision-making processes.[16]

 

  1. External Elements of the Rule of Law

A crucial facet of the EU concept of the rule of law lies in the fact that the EU endeavours to promote this concept beyond its own borders.[17] Concretely, the EU’s external action is guided by and seeks to support and consolidate inter alia the rule of law (Art. 21 TEU). In the spirit of good neighbourliness, the EU aims to develop a special relationship with neighbouring countries founded on EU values, among which the rule of law (Art. 8(1) TEU).

Nonetheless, be it the EULEX (EU Rule of Law Mission) in Kosovo or the rule of law promotion in Ukraine, the internal fallacies of the EU rule of law concept are likely to undermine its legitimacy and successful implementation abroad. The Ukrainian example has been dubbed “an ambitious failure”.[18] This external element of the rule of law is thus contingent on the soundness of its application internally. The EU cannot promote what it itself cannot secure. The rule of law within the EU is hence both a yardstick and a barrier for its advancement beyond the EU.

 

  1. Conclusion: The Dichotomy That Binds?

The foregoing survey of the key elements of the EU concept of the rule of law demonstrates that respect for the rule of law is a central prerequisite for the observance of the foundational values, rights and obligations that flow from the Treaties, because it represents the pillar that shields mutual trust and confidence, and thus cooperation and prosperity, within the EU. Yet since the rule of law in the context of the EU creates repercussions that extend well beyond its territory, resolving the conundrum of its untrammeled operation proves fundamental.

The key question facing EU legal research is hence that of the corollaries of the dualist structure of the rule of law, much rather than the incessant quest for a unified list of its component parts, which is bound to remain open-ended. The overarching, compound character of the rule of law in the EU and the interlacement between the domestic and EU arrangements for its protection are the central puzzles of EU law and policy.

Therefore, the dimension of the rule of law concept that proves to be essential in the EU context refers to the boundaries of the legal authority to enforce the rule of law. Whether these boundaries are porous and thus amenable to exogenous influence or, contrarily, watertight and impermeable, is as yet an uncharted terrain of legal inquiry. Striking the right balance between national identity and autonomy and EU intervention in the policing of the rule of law poses a prime task for juridico-constitutional engineering by both academics and policy makers.

Any attempt at single-handed action in shaping the rule of law in a given polity, be it a Member State or the EU as a whole, creates colossal externalities capable of adversely affecting not only the ‘health’ but also the ‘life expectancy’ of the EU project. The resilience and ubiquity of the authority question is not novel, however, and is a contemporary exponent of the burgeoning heritage of the Kompetenz-Kompetenz and legitimacy dilemmas, which are woven in the very fabric of European integration.

Whether the rule of law’s dichotomy between its domestic and EU apparatuses will bind them even firmer together and bolster European integration, or erode it, is the focal point of EU law scholarship and there are sound reasons why it ought to be. Key among them is that this inquiry brings sovereignty of the nation state back to fore of legal research and contributes to understanding the level of maturity of the EU construct through an investigation of the extent to which the EU’s nation states have truly transformed into Member States.[19]

Dr Davor Jancic

British Academy  Newton Fellow,  LSE Law Department

[1] Bogdandy, Armin von and Ioannidis, Michael. “Systemic deficiency in the rule of law: what it is, what has been done, what can be done,” Common Market Law Review, Vol. 51, No. 1, 2014: 63-64.

[2] Carp, Radu. “The struggle for the rule of law in Romania as an EU Member State: the role of the Cooperation and Verification Mechanism,” Utrecht Law Review, Vol. 10, No. 1, 2014: 1-16.

[3] Bugarič, Bojan. “Protecting democracy and the rule of law in the European Union: the Hungarian challenge,” LSE Europe in Question Discussion Paper no. 79, July 2014; Kovács, Kriszta and Tóth, Gábor Attila, “Hungary’s constitutional transformation,” European Constitutional Law Review, Vol. 7, No. 2, 2011: 183-203.

[4] Bogdandy, Armin von et al. “Reverse Solange – protecting the essence of fundamental rights against EU member states,” Common Market Law Review, Vol. 49, No. 2, 2012: 489–519.

[5] Müller, Jan-Werner. “What, if anything, is wrong with a Copenhagen Commission? The idea of democracy protection in the EU revisited,” Transatlantic Academy – Analysis, July 2013. See various other reactions at the Verfassungsblog: http://www.verfassungsblog.de/en/category/focus/hungary-taking-action/, accessed on 12 August 2014.

[6] Komárek, Jan. “Waiting for the existential revolution in Europe,” International Journal of Constitutional Law, Vol. 12 No. 1, 2014: 196.

[7] European Commission, “Communication on Article 7 of the Treaty on European Union: respect for and promotion of the values on which the Union is based,” COM(2003) 606, p. 5.

[8] European Commission, “Communication on a new EU framework to strengthen the rule of law,” COM(2014) 158, p. 4.

[9] Ibid, p. 7.

[10] See its Letter ref. no. CM1406 of 15 June 2014: http://www.commissie-meijers.nl/assets/commissiemeijers/CM1406%20Letter%20to%20Vice-President%20Reding%20on%20the%20Proposed%20Framework%20to%20Strengthen%20the%20Rule%20of%20Law.pdf, accessed on 10 August 2014.

[11] See the reflection by Veronica Szente Goldston at: http://www.hrw.org/news/2014/03/19/rule-law-eu-mechanism-needs-upgrade, accessed on 10 August 2014.

[12] See the reflection by Balazs Fekete at: http://hpops.tk.mta.hu/en/blog/2014/05/new-european-commission-framework-rule-of-law, accessed on 10 August 2014.

[13] Majone, Giandomenico. “Europe’s ‘democratic deficit’: the question of standards,” European Law Journal, Vol. 4, No. 1, 1998: 5–28.

[14] Weiler, Joseph H.H. “In the face of crisis: input legitimacy, output legitimacy and the political messianism of European integration,” Journal of European Integration, Vol. 34, No. 7, 2012: 837.

[15] Hobolt, Sara B. “A vote for the President? The role of Spitzenkandidaten in the 2014 European Parliament elections,” Journal of European Public Policy, 2014, forthcoming.

[16] Mendes, Joana. “Rule of law and participation: a normative analysis of internationalized rulemaking as composite procedures,” International Journal of Constitutional Law, Vol. 12 No. 2, 2014: 372.

[17] Pech, Laurent. “Rule of law as a guiding principle of the European Union’s external action,” CLEER Working Papers 2012/3.

[18] Burlyuk, Olga. “An ambitious failure: conceptualising the EU approach to rule of law promotion (in Ukraine),” Hague Journal on the Rule of Law, Vol. 6, No. 1, 2014: 26-46.

[19] Bickerton, Christopher. European integration: from nation-states to member states (Oxford: Oxford University Press, 2012).

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