Strengthening the Rule of Law in Europe

From a Common Concept to Mechanisms of Implementation

Werner Schroeder

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN:
  9781509928873
• Edition: 1
• eBook ISBN:
  9781849469500
• Topic: Law
• Subtopic: International Law
• Index: Law

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

Part I

Introduction

1

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

WERNER SCHROEDER

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

ACCORDING TO THE first sentence of Article 2 of the Treaty on European Union (TEU), the European Union is founded on values among which figure the respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights, including the rights of persons belonging to minorities. The second sentence of this provision assumes that the Member States respect and observe these values. In the last years, however, the political situation in some Member States has made manifest that these values are partly jeopardised to a considerable degree; this notably holds true for the principle of the rule of law. The most notorious example is Hungary, where the Government is formed by a coalition which abuses its constitution-changing majority in order to eliminate forms of extra-parliamentary control through the court system as well as the media.¹ Similar tendencies can also be observed in some other Member States, as is the case in Poland since autumn of 2015, where the governing coalition has undermined the independence and functioning of the Constitutional Court² and seeks to restrict the freedom of the media. Meanwhile, such methods, which are geared to the Hungarian model of an illiberal democracy and to the idea that an electoral victory endows a government that can rely on a majority in Parliament with a comprehensive entitlement to recast the State according to its visions, are called ‘Orbanization’.³ They collide, however, with the principle of rule of law which, as a common principle of the EU Member States, restricts the majority rule in the State through institutions such as separation of powers, independence of the courts, submission of the legislation to the Constitution and fundamental rights and which guarantees the liberty of the individuals.

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

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

It is a truism that the rule of law represents a central element of the Union’s constitution.

A.‘Community Based on Law’ Means Respect for the Law

Already at the beginning of the 1960s, Walter Hallstein coined, in regard to the then European Economic Community (EEC), the concept of a ‘community based on law’.⁶ This term has made a remarkable career since then. It was later taken up by the European Court of Justice (ECJ) and represents an essential element of Union law doctrine. Hallstein’s remark did however not refer to the Member States of the then Community as all being States governed by the rule of law. He did not primarily seek to illustrate that the Community has institutions such as fundamental rights, separation of powers, legal protection and so on, and is therefore endowed with all insignia of a State based on the rule of law. He rather aimed at emphasising that the Community ‘solely’ disposed of legal power and not of means of coercion. Hence, the Union’s power is exclusively based on the respect for the law.⁷

As a matter of fact, the law of the Union does not contain any instruments for the emergence of a ‘state of emergency’⁸ between the Union and its Member States. It only governs the ‘normal condition’.⁹ The Union law’s legal concept for the handling of borderline situations where the rule of law is threatened in and by the Member States does not provide for the use of force, but, as it is common in other modern federal systems, for cooperation¹⁰ and consideration. The sanctioning procedure for the massive violation of rule of law principles, which is enshrined in Article 7 TEU and which was created by the Amsterdam Treaty, does not change much in this regard since it does not provide for the use of force against a Member State.

B.Rule of Law and Legal Protection as Maxims in the ECJ’s Jurisprudence

As is commonly known, the ECJ took up the concept of a Community based on law and linked it to the constitutional character of the Treaties. According to the Court, the then EEC is ‘a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’.¹¹ The terminology applied by the Court of Justice implies that in Union law there exist certain principles and structures related to the rule of law which are familiar to the national constitutional law.¹² The case-law, however, reduces the substance of this community of law more or less to the requirement of effective legal protection.¹³

In addition, in its understanding of the community of law, the Court of Justice is focused on its own role in the European court system.¹⁴ Against this background, the ECJ derives from the principle of the community of law claims for the autonomy of the Union and, above all, for its own position as the Union’s constitutional court. Accordingly, the Court of Justice uses the statement that the treaties constitute ‘the constitutional charter of a Community based on the rule of law’, when compared with other international treaties, for the purpose of repelling supposed attacks on the autonomy of the Union legal order due to the participation of the Union in international dispute settlement systems.¹⁵

This jurisprudence of the Court of Justice provides two important insights for this examination of the role of the rule of law in the Union: on the one hand, the concept is primarily focused on the rule of law within the Union itself, but not in the Member States, and on the other hand, it restricts the content of the rule of law on the Union level to questions of legal protection.

C.Rule of Law as Part of the Constitutionalisation Strategy

Already Walter Hallstein used the concept of the rule of law in order to manifest the constitutional character of the Treaties.¹⁶ This idea was endorsed by the case-law of the ECJ only in the middle of the 1980s.¹⁷ At this time, it had already become clear that the jurisprudence on the primacy of EU law, its direct effect and on fundamental rights had effected a ‘constitutionalisation’ of Community law.¹⁸

The topos of the rule of law immediately became part and parcel of this constitutionalisation strategy.¹⁹ It perfectly lends itself to distinguish the law of the Union from international law and to support the proposition that the Union is not an intergovernmental organisation as the others, but a public authority sui generis endowed with a supranational constitution.²⁰ The Court of Justice also applies such constitutional and rule of law terminology to the effect of securing the substantial legitimacy of the law of the Union, particularly by underscoring that the rule of law constitutes an element of the Union’s particular identity on the international plane.²¹

Methodologically, this jurisprudence draws on the fact that the rule of law can be conceived of as an element of the common constitutional traditions of the Member States and therefore a general principle of the law of the Union. In some Member States, albeit certainly not in all of them, the rule of law is indeed intimately linked to the existence of a constitution which represents the normative foundation for the exercise of public authority.²² The rule of law was, however, only recognised as a genuine element of the law of the Union with the Amsterdam Treaty, namely in Article 6 TEU (old version). Since then, it explicitly pertains to the constitutional law profile of the Union which is not only applicable for the Union itself, but also for the Member States (Article 2, second sentence and Article 7 TEU).

It has therefore taken several decades for the rule of law to acquire the status of, and to establish itself as, a principle of the Union’s law. This is understandable given the fact that the objectives and means of operation that were originally agreed upon by the Member States of the Community were primarily of an economic and social policy character and that the ‘Common Market’ and the ‘market freedoms’ were at the heart of this economic order.²³ Therefore, the Treaties of Rome did not contain, with the exception of legal protection, any elements testifying an explicit rule of law terminology. Nonetheless, already when establishing the Communities, the participating States fundamentally agreed on certain rule of law principles without which the common integration project would...

Table of contents

• Cover
• Title Page
• Contents
• List of Contributors
• Part I: Introduction
• Part II: Core Elements of the Rule of Law
• Part III: Council of Europe and European Union—Different Concepts of the Rule of Law?
• Part IV: Mechanisms of Implementing the Rule of Law in Europe
• Part V: Institutional Implications of Implementing the Rule of Law in Europe
• Index
• Copyright Page