Editorial of April 2019

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 by Sophie Perez Fernandes, Editor


First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…

This is crucial in order to grasp the idea and really understand the magnitude of the importance of the concept of a Union based on the Rule of Law. This model has its faults, like any human endeavour; but it has been ensuring peace on the European continent for almost 70 years. The stabilizing role played by the European Union in the pacification of the European continent has earned it, as is well known, the recognition of the Nobel Peace Prize in 2012 – a feat that does not deserve, as I have personally witnessed, to be disdained by a mere shrug or a sigh…

However, even though the Rule of Law is the foundation on which everything else is built in the societies we live in, there is still a profound lack of knowledge and/or of awareness within those societies of the role that the Law plays within them. From time to time, there is still the need to explain to common citizens, who live their daily lives in politically organized societies governed by Law – societies that go by the name of (Member) State and the European Union – what is the role of this Law, what is the role of this instrument without which those political structures not only would cease to function but would simply cease to be – because, without Law, there is no State governed by the Rule of Law; without Law, there is no Union based on the Rule of Law.

And so, there is still the need to explain that the model of the Rule of Law is based on this idea that is both so simple and elementary – and therefore, sometimes, taken for granted … –, and also so crucial and structuring – and therefore so fragile! –  that persons and authorities living and functioning within a political structure governed by the Rule of Law must be bound and must be able to benefit from the protection of publicly created laws enforced in independent courts. And to explain that, with its faults  – because it has some, as any human endeavour –, this normative bonding model aims to protect the individual against arbitrariness, especially in its relations with the authorities exercising public power. To explain that this entails the recognition of a sphere of self-determination that must remain free and protected against any form of interference, public or private – and therein lies the very raison d’être of the recognition and protection of fundamental rights. To also alert to this simple truth – albeit, regrettably, almost fallen into collective oblivion – that fundamental rights are not merely decorative bibelots, but are to be exercised in everyday life and one must be aware of this daily exercise. It is still necessary to emphasize that relations between the authorities responsible for exercising public power and individuals are not conceived as relations of dominion, but that, on the contrary, citizens have an active role in public decision-making procedures and their effective participation is not only encouraged but is essential because, in democracy, people are the true master of public power – democracy does not survive without the active attitude of the citizen, of the people (demos-) in the government (-cracy) of society. Only then can the citizen grasp the (not so glamorous) reality that many of the institutional, political and social problems of our times are the result of a passive attitude of inertia of the citizens themselves…

These simple ideas which shape the values of the Rule of Law, Democracy and Fundamental Rights, values which are common to the Member States and on which the European Union is founded (Article 2 TEU), not only structure the model of life in society which, for better and worse, modern times have gotten us used to, but they are also interdependent values. As Frank Sinatra would utter, you can’t have one without the other! It is also crucial to explain to the citizen this relationship of interdependence, because it implies that a limitation, a regression, or a backsliding of one of these values leaves the others equally, or even more, limping…

Only by laying down these foundations would it be possible, in my view – view essentially acquired from my experience with college non-law students – to undertake an EU literacy campaign towards the citizen.

It is fallacious and misleading to think of European integration disconnected from citizenship. Citizenship is the democratic form of European political integration. It implies the participation of EU citizens in the affairs of the Union. This participation may take many forms but is based on the fundamental democratic premise that the recipients of the rules in a democratic society should be able to identify themselves with the rules governing their daily lives as their authors – and this also applies at EU level.

Putting forward citizenship participation as the democratic form of European political integration implies the active and daily exercise of EU citizenship by EU citizens. For that, explaining to EU citizens what EU citizenship is actually about might still be needed – in other words, starting an EU citizenship campaign for the EU citizens. Understanding EU citizenship is not intuitive because EU citizenship does not replicate, nor does it have to, the national citizenship model…

Far from a closed and crystallizing concept, EU citizenship is in itself dynamic and constructive: as an expression of a specific link between EU citizens and the European Union itself, rather than relying on values of equality, belonging and collective identity, EU citizenship seeks primarily to foster / build these values – EU citizenship seeks to awake within EU citizens a sense of belonging to the emerging European political community and of identification with the European project.

In this sense, EU citizenship challenges the understanding of the notion of community. The idea of belonging to a particular community shaped by the model of national citizenship contradicts the dynamics of the European integration process itself. As Francis Jacobs explained (here), the right to move and reside freely within the territory of the Member States «is not based on the hypothesis of a single move from one Member State to another, to be followed by integration into the latter»; the intention is rather to allow «free, and possibly repeated or even continuous, movement» within the territory of the Member States conceived as the territory of the European Union as a whole.

A genuine European political community would therefore be composed of citizens who felt integrated, in the meaning of belonging, both to the Member State(s) of which they are nationals and to the European Union itself, without the feeling of belonging to one excluding the feeling of belonging to the other. As it is (Article 9 TEU and Article 20(1) TFEU), as a rule (of law), you can’t have one without the other – better be to embrace them both! Identifying oneself as EU citizen does not make the EU citizen less Portuguese, less Spanish, less French…[ii] and so forth. But it is because he or she is an EU citizen that the EU citizen has the opportunity to be Portuguese, Spanish, French, and so forth, in any Member State. In this sense, belonging to the emerging European political community allows EU citizens to project their own nationality beyond their own Member State, allows EU citizens to project their nationality on a European scale.

This is why action taken by a single person, a single EU citizen, before the competent national authorities, when projected on a European scale, can potentially affect the lives of all EU citizens. Take, for example, the case of the Italian workers who, unprotected after the insolvency of their employers, triggered the emblematic Francovich case, in which the ECJ laid the foundations for the liability of (all) Member States for breaches of EU law. Or, more recently, the case of Mr Schrems who, concerned about the protection of his personal data, challenged the transfer of his data – and the data of EU citizens’ generally – to the United States by Facebook. The same goes of the diligence of a single company, such as the initiative of Van Gend & Loos, or a professional association, such as the Associação Sindical dos Juízes Portugueses. This, just to mention a few examples that reached only one EU institution.

A European political community therefore depends on the active and daily exercise of EU citizenship by the EU citizens themselves which, as we can see, can take on a variety of forms other than simple voting – without prejudice to the fundamental importance of any electoral act, such as the upcoming elections to the European Parliament.

EU citizenship has thus the potential to enable EU citizens to face the problems of the French, Spaniards, Poles, Hungarians, Britons, Latvians, Greeks, and so forth, not as problems which only concern the foreign French, Spaniards, Poles, Hungarians, Britons, Latvians, Greeks – but as problems of our fellow citizens nearby in France, Spain, Poland, Hungary, the United Kingdom and Greece. And the inverse is reciprocally true: French, Spaniards, Poles, Hungarians, Britons, Latvians, Greeks must face the problems of the Portuguese as the problems of their fellow citizens nearby in Portugal.

And that is why the so-called rule of law backsliding in Poland is so worrying – it is not only worrying in itself, but it is also worrying that it is not perceived or felt by EU citizens as a common problem. This is because the citizen who does not understand that judicial independence is at the core of any State governed by the rule of law and therefore of the EU based on the rule of law cannot perceive the problem of the Poles as a problem of their fellow citizens in Poland and thus cannot feel this problem as a problem that also concerns them. He or she also cannot understand that the various steps already taken by EU institutions, in particular the Commission, and more recently the ECJ, are the weapons which a model of integration through Law makes available to deal with the problem as a matter of protection of all fellow EU citizens.

* The author is référendaire at the Court of Justice of the European Union. This contribution only reflects the views of its Author and not the institution to which she belongs.

[i] This post corresponds, in substance, to the speech delivered at the Conferências de São Domingos «A União Europeia e Portugal. Comunidade política europeia: revelando a Europa quotidiana aos cidadãos europeus», 15 November 2018, Fundação Calouste Gulbenkian, Lisbon, Portugal (here). The Author thanks the Ordem dos Advogados for the kindness of the invitation.

[ii] Anyone paying attention to the Author’s name understands that the choice of nationalities is not innocuous but is strictly personal.

Pictures credits: Voting… by mohamed hassan.

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