by Alessandra Silveira (Editor) and Maria Inês Costa (Master´s student in Human Rights at the University of Minho)

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The expression rule of law means that the exercise of public power is subject to legal norms and procedures – legislative, executive, judicial procedures –, which allow citizens to monitor and eventually challenge the legitimacy of decisions taken by the public power. The basic idea of the value of the rule of law is to submit power to law, restraining the natural tendency of power to expand and operate in an arbitrary manner – be it the traditional power of the State, or the power of novel political structures such as the European Union, be it the power of private organizational complexes – such as market forces, internet forces, sports forces, etc.

The procedure provided by Article 7 TEU is the most emblematic political instrument to defend the rule of law in the European Union. Article 7(1) TEU constitutes the initial phase in the procedure in the event of a clear risk of a serious breach by a Member State of the common values enshrined in Article 2 TEU. Article 7(2) TEU governs the next stage in which a serious and persistent breach by a Member State of the values laid down in Article 2 TEU can be established. Article 7(3) TEU ultimately provides for the issuing of sanctions against the Member State concerned.

Article 7(1) TEU provides that on a reasoned proposal by the European Parliament, the Council acting by a majority of 4/5 of its members may determine that there is a clear risk of a serious breach by a Member State of the common values of the Union referred to in Article 2 TEU. Moreover, Article 7(5) TUE provides that the voting arrangements applicable to the European Parliament are laid down in Article 354 TFEU – which provides that the European Parliament shall act by a 2/3 majority of the votes cast, representing the majority of its component Members.

On 12 September 2018, the European Parliament adopted a resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded.  There were 448 votes cast in favour of the resolution, 197 cast against, and 48 abstentions. Hungary asked the Court of Justice of the European Union for the annulment of that resolution under Article 263 TFEU in the case C-650/18 Hungary v European Parliament.

As explained by the Advocate General Michael Bobek in his Opinion delivered on 3 December 2020, that action for annulment raises two key legal issues: i) first, would the reasoned proposals adopted under Article 7(1) TEU be amenable to judicial review under Article 263 TFEU, in particular, in view of Article 269 TFEU? (by virtue of Article 269 TFEU, the Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the Council pursuant to Article 7 TEU solely at the request of the Member State concerned by a determination of the Council and in respect solely of the procedural stipulations contained in that Article); ii) second, should that indeed be the case, how would the abstentions be counted in the European Parliament for the purpose of determining whether the 2/3 majority of the votes cast, as required by Article 354 TFEU, has been reached? (Hungary argued that the contested resolution would not have been adopted if abstentions had been considered properly).

On 3 June 2021, the Court of Justice dismissed the action, closely following the Advocate General´s Opinion. The Court decided that resolutions of the Parliament, adopted under Article 7(1) TEU, do not fall under Article 269. Thus, the authors of the Treaties did not intend to exclude an act such as the contested resolution from the general jurisdiction conferred on the Court of Justice by Article 263 TFEU. Furthermore, when calculating the votes cast when that resolution was adopted, the Parliament was right not take into account abstentions. Thus, the rule laid down in the fourth paragraph of Article 354 TFEU, which requires a majority of votes cast, must be interpreted as precluding the taking into account of abstentions.

In this text, we will focus on the first key legal issue raised by the action for annulment, because the Court´s interpretation contributes to the observance of the principle that the European Union is a “Union based on the rule of law”, which has established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the EU institutions. In this regard, one should recall the Le Verts judgment (of 23 April 1986, 294/83, EU:C:1986:166), according to which the European Union is a “Union 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.

According to the European Parliament, the action for annulment against the contested resolution was inadmissible. It argued that Article 269 TFEU – which is a lex specialis with regard to Article 263 TFEU, the lex generalis – was applicable in that case. Article 269 TFEU would be one of a number of other provisions limiting the Court’s jurisdiction in special domains. It would preclude judicial review by the Court of the contested resolution.  According to the European Parliament, the authors of the Treaties did not intend to have a broad scope of judicial review for acts pertaining to the Article 7 TEU procedure. The procedure under Article 7 TEU would constitute an extraordinary political safeguard which is largely insulated from the Court’s jurisdiction. Among the different acts that may be adopted under Article 7 TEU, only the determination made by the European Council or the Council could be subject to judicial review under Article 269 TFEU.

In particular, the European Parliament argued that it would be illogical to have full judicial review of preparatory acts under Article 263 TFEU while determinations are subject to a limited review under Article 269 TFEU. What this means is that the political debate which ought to take place within the Council would then take place in the courtroom. The Court could examine alleged procedural irregularities committed during the adoption of an act, such as the contested resolution, but at a later stage during the judicial review of the determination made by the Council or the European Council.

Should the Court embrace a different approach, the European Parliament remained of the view that the contested resolution was not challengeable due to its lack of legal effects. The resolution did not entail any change in the applicant’s legal situation. The Council would be entirely free to follow the Parliament’s proposal or to choose not to do so. The contested resolution would be an intermediary measure immune from judicial challenge. It would not contain the final position of the Parliament, since the latter is to approve the determination made by the Council pursuant to Article 7 TEU at a later stage of the procedure.

However, the Court of Justice considered that it is established case-law that the European Union is a “Union based on the rule of law”, in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of EU law and fundamental rights. As explained by the Advocate General in his Opinion, since the entry into force of the Treaty of Lisbon, the Court enjoys jurisdiction by default with regard to all acts adopted by EU institutions, at least those which are intended to have legal effects. However, even in those scenarios, the Court has insisted on the fact that Article 19 TEU has conferred general jurisdiction on the Court to ensure that, with regard to the interpretation and application of the Treaties, the law is observed. Accordingly, any derogation from that rule of general jurisdiction must be interpreted narrowly.  In short, under the Treaty of Lisbon, the default rule is uncompromisingly simple: unless the Treaty clearly and expressly excludes it, the Court has jurisdiction over all EU acts. Moreover, any such express exclusion is to be interpreted narrowly.

So, how did Article 269 TFEU – which is, along with Article 263 TFEU, at the core of that action for annulment – fit within the Union’s complete system of legal remedies with regard to the specific procedure under Article 7 TEU? Was it, as argued by the European Parliament, a lex specialis which applies across the entire Article 7 TEU procedure and excludes judicial review of any act adopted within that procedure, except for the acts expressly set out in Article 269 TFEU?

The Court of Justice concluded that Article 269 TFEU is not in fact a jurisdiction exclusion clause. As referred by the Advocate General in his Opinion, within the system and the reasoning for standing under Article 263 TFEU, especially in view of the exclusion of preparatory acts from judicial review, the effect of Article 269 TFEU is to expressly confirm and thus to attribute (albeit indeed limited) jurisdiction to the Court with regard to specific types of act (determinations made by the European Council or the Council) that could be, if normal rules were applicable, excluded. Thus, Article 269 TFEU does not govern – nor, as a consequence, preclude – the initiation of actions for annulment against other acts under Article 7 TEU, that is to say those not referred to in Article 269 TFEU, including the reasoned proposal of the Parliament under Article 7(1) TEU.  

The Court of Justice decided that, in the light of Article 269 TFEU, an action for annulment under Article 263 TFEU against a reasoned proposal adopted by the Parliament under Article 7 TEU may be brought only by the Member State which is the subject of that proposal within two months of its adoption. However, the grounds for annulment relied on in support of such an action can only be based on infringement of the procedural rules referred to in Article 7 TEU.

And why is that? Because to accept that, on the basis of Article 263 TFEU, an action for annulment against a reasoned proposal of the Parliament, adopted under Article 7(1) TEU, may be brought by an applicant other than the Member State which is the subject of that proposal, and that, in support of that action, any ground referred to in the second paragraph of Article 263 TFEU may be relied on, would, to a large extent, deprive of their practical effect the specific conditions, laid down in Article 269 TFEU, relating to the bringing of an action for annulment against the determination of the Council referred to in Article 7(1) TEU, which could be adopted as a result of that proposal.

Therefore, as referred by the Advocate General in his Opinion, Article 269 TFEU is indeed a type of lex specialis, but a very different one from that suggested by the European Parliament. It is not, and logically cannot be, a straightforward, across the board exclusion from judicial review of any acts not expressly mentioned therein but adopted nonetheless under Article 7 TEU. It is a special confirmation or attribution of jurisdiction vis-à-vis specific types of acts mentioned therein that were likely to be excluded.

Article 7 TEU has set up a procedure that is specifically dedicated to ensuring compliance with the rule of law by the Member States – and judicial protection is one of the most important principles of the rule of law. See, for example, judgment Associação Sindical dos Juízes Portugueses (of 27 February 2018, C-64/16, EU:C:2018:117), which underlined that Article 19 TEU obliges Member States to ensure effective judicial protection in areas covered by EU law, recognizing the integrated nature of the Union’s judicial system. As recently recalled by the Court on the basis of Article 2 TEU, the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law. See, for example, judgments H v Council and Others (of 19 July 2016, C‑455/14 P, EU:C:2016:569, paragraph 41), and Rosneft (of 28 March 2017, C‑72/15, EU:C:2017:236, paragraphs 72 and 73), which upheld the Court’s jurisdiction despite the first paragraph of Article 275 TFEU.

Therefore, the Court decided that effective judicial protection requires that reasoned proposals may be subject to review pursuant to Article 263 TFEU, provided they produce binding legal effects. The contested resolution did not constitute an intermediate measure the legality of which can be challenged only in the event of a dispute concerning the definitive act for which it represents a preparatory step. As referred by the Advocate General in his Opinion, it would be positively Kafkaesque to make access to judicial review conditional on there being, one day, potentially, a final decision of unknown nature, while, in the meantime, the reasoned proposal remains effective for an indefinite period of time. Such a scenario would hardly fit the description of a Union of law where the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law.

Although there is no definition of the rule of law in the constitutive treaties, from the jurisprudence of the Court of Justice it follows that this is a fundamental norm, which guides and conditions the exercise of public powers. The rule of law is the source of the principles in force in the Union’s legal system, such as the principle of legality, the principle of legal certainty, the principle of the protection of legitimate expectations, prohibition of arbitrariness by the public authorities, the principle of the balance of power, the principle of equality before the law, the principle of effective judicial protection, etc. It is a core norm that requires all citizens to be treated by all decision-makers in a dignified, equitable manner, in accordance with the law, giving citizens the opportunity to challenge such decisions before independent and impartial courts.

The rule of law has been under increasing pressure in Europe. Indeed, the rule of law is not immune to the recent crises that the European Union has gone through and still goes through, from the European debt crisis, the migrant crisis, then the constitutional crisis with Brexit and the populist drift, and now, the health emergency due to the Covid-19 pandemic. The rule of law is threatened when a significant number of actors, in different sectors and different Member States, fail to guarantee normative expectations to the point of creating a deficit in confidence in the law and in public institutions. However, public confidence in the legal systems of all Member States is crucial for the functioning of the European Union as a whole. For this reason, proclaiming the value of the rule of law must be interpreted as an attempt to recover, by the western legal-political culture, its most recognized and precious heritage.

Picture credits: AJEL