Editorial of November 2018


 by Alessandra Silveira, Editor

In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].

As we have commented in this blog, in those two rulings the ECJ has affirmed[iv] that the judicial independence is of cardinal importance as it ensures both the protection of those rights that emerge from EU law and the preservation of Member States’ common values under Article 2 TEU – namely, the rule of law. The existence of an effective judicial review destined to ensure compliance of EU law is inherent to the value of the rule of law. From this conception derives the idea that 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 EU law meet and satisfy the demands of an effective judicial protection. Therefore, in order to guarantee such protection, it is crucial that those courts and tribunals’ independence is preserved – as stated in Article 47 (2) CFREU, which mentions the access to an independent tribunal among the demands linked to the fundamental right to an effective remedy.

Therefore, the ECJ’s jurisprudence does not disregard the dual nature of judicial independence in the EU legal order – it seeks to take proper advantage from it in terms of systemic complementarity[v]. The competing conceptualization of judicial independence as a general principle and a fundamental right only in appearance induces a normative duality of a dissociative nature. In fact, such competing conceptualization emerges from ECJ’s jurisprudence with a sense of unity in the relations between Member States and individuals in the areas covered by EU law. The ECJ’s jurisprudence also reinforces its structural importance to the very own European integration process: as an implementing dimension of the rule of law, judicial independence is inscribed in the manifesto of those fundamental values that define the very identity of the Union itself (Article 2 TEU).

There are those who fear this jurisprudence, perceiving it as a sign that the ECJ was preparing itself to widen the scope of application of EU law to those “purely internal” situations, those situations without any connection with EU law. We disagree. When effectiveness of EU law is at stake, the ECJ has been setting its footprint in situations “apparently” with no connection with EU law and, for sure, it did not need ASJP, LM and now Commission v Poland to follow this settled case-law. As explained by Advocate General Eleanor Sharpston, the question whether one situation is internal is conceptually distinct from the question whether there is a link with EU law. It is important to ascertain which situations, internal or not, have some relevant connection with EU law. But the answer cannot be that those so-called internal situations are automatically deprived of any link to EU law.[vi]

Particularly in the aftermath of the Brexit referendum, the ECJ’s case-law has reflected a very sensitive interpretation of the political and institutional balances on which the survival of the EU as a project of legal integration depends[vii]. And it is true that European integration faces today a populist pressure which adds to the nationalist drive. Despite such movements behold a short-sighted and materially anti-democratic cosmovision, the fact is that they have gained force and are increasingly coming to power precisely through the instruments of formal democracy. They are phenomena potentially threatening to democracy, nevertheless generated in democracy, based on the fundamental rights that define it – such as freedom of association and of speech[viii]. As the former MEP Rui Tavares argued following the Brazilian election, it is a wave of authoritarian right-wing, intentionally cohesive and highly coordinated, that is taking over control of global politics.[ix] Nacionalist populism is a form of political communication that attempts to reach its goals by breaking the dialetic connection between democracy and rule of law – as our colleague Stephan Kirste (University of Salzburg) finely explained recently in Brazil. Having the European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars, it is important to question which the causes are for this state of play and how to envisage the future of the European Union.

The Portuguese philosopher Viriato Soromenho-Marques usually says that what keeps us united in the EU is the physics of reality. It is the sensation of the people that the EU still functions as a life insurance. Perhaps that explains the numbers the Spring 2018 Standard Eurobarometer revealed: trust in the Union and optimism regarding its future are on the rise (58%).[x] All in all, trust in the EU remains higher than that in national governments or parliaments: 42% of the Europeans trust in the EU whilst 34% trust in the respective national parliaments and governments. Most Europeans consider that the economic situation is good and support to Economic and Monetary Union has reached its highest level: three quarters of the people surveyed (74%) in the Eurozone are in favour of the single currency. Moreover, 70% of the Europeans feel they are citizens of the EU – for the first time, since the Spring of 2010, this opinion is shared by a majority in all Member States.

Then, how to capitalise this positive image of the EU? European citizenship based on the protection of rights (“citizenship of rights”) presents itself as a powerful instrument for the construction of a vertical relation between European citizens and European institutions, but that also implies the acknowledgment of the political dimension of citizenship as an authentic republican citizenship. One that relies upon in the recognition of fundamental rights but also on the active involvement of the citizens.

Then, how to seize such an environment of confidence to create a political space that reconciles the Europeans and promotes compromises amongst divergent visions for Europe? When we refer to republican citizenship or European democracy it immediately comes to mind proposals of institutional reforms. However, it might be time to approach the issue from the perspective of the individuals – of life experiences, of day-to-day, of the buzz of horizontal integration. As Ulrich Beck explained, only when individuals realise the EU as a project of their own, only when they are in position to take the perspective of the citizens of other Member States, will make sense discussing properly about European democracy.

Then, how to open privileged communication channels amongst the individuals and which channels shall be opened? And who would be the translators – i.e., the intermediation actors, the agents who communicate the interests and realities of each? Translation here is seen in a broad sense, that one of “drive towards us” – translating mentalities, world views –, as we only get interested in what we know.

It is urgent to reflect and dialogue around multiple questions associated with the development of a European political community (polity). It is important to look into how national and European authorities may develop an affective communication with the European citizens – that pairs with people’s concerns, that creates empathy and stimulates the European identity –, as well as reveal in what extent civil society can pursue such purpose.

In a particularly hard time of European integration, permanently provoked by nationalist and xenophobic populism and its manifestations of collective bestiality, this is perhaps the great challenge the EU faces nowadays (and, in a broader view, the very legal-political Western culture) in defence of its most acclaimed and precious heritage: rule of law, democracy, human rights.


[i] On this theme, see “Poland v Fundamental rights?”, available on: https://officialblogofunio.com/2018/10/03/editorial-of-october-2018/.

[ii] See Order Commission v Poland, 19 October 2018, case C-619/18 R.


[iii] See Judgment ASJP, 23 February 2018, case C-64/16 and LM, 25 July 2018, case C-216/18 PPU.

[iv] See “A Union based on the rule of law beyond the scope of EU law – the guarantees essential to judicial independence in Associação Sindical dos Juízes Portugueses”, available on: https://officialblogofunio.com/2018/04/03/a-union-based-on-the-rule-of-law-beyond-the-scope-of-eu-law-the-guarantees-essential-to-judicial-independence-in-associacao-sindical-dos-juizes-portugueses/ . Also see “LM judgment – effective judicial protection as general principle and fundamental right”, available on: https://officialblogofunio.com/2018/11/03/lm-judgment-effective-judicial-protection-as-general-principle-and-fundamental-right/.

[v] See also Matteo Bonelli/Monica Claes,  “Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary”, European Constitutional Law Review, 14: 622–643, 2018.

[vi] See Opinion of Advocate General Eleanor Sharpston, 28 June 2007, case C-212/06, paragraph 136.

[vii] On this theme, see Maria Luísa Duarte, Direito do Contencioso da União Europeia, AAFDL Editora, Lisboa, 2017, p. 32.

[viii] On this theme, see Alessandra Silveira/Pedro Froufe, “Integração europeia em crise de identidade: Causas e perspetivas jurídico-constitucionais entre o populismo, a política e o poder”, in DILEMAS: Revista de Estudos de Conflito e Controle Social, Federal University of Rio de Janeiro, Brazil, available on: https://revistas.ufrj.br/index.php/dilemas/article/download/11225/11286.

[ix] See “Abram os olhos: sobra a Europa”, available on: https://www.publico.pt/2018/10/31/politica/opiniao/abram-olhos-sobra-europa-1849445.

[x] http://europa.eu/rapid/press-release_IP-18-4148_en.htm

Pictures credits: Populism by Dr Case.

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