by Alessandra Silveira and Joana Covelo de Abreu (Editors)

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On 28 May 2021 a webinar was held at the School of Law of the University of Minho under the theme “Rule of law protection in the European Union”, organized by the initiative of the Portuguese Association of European Law (APDE). The event had the moderation of Carlos Botelho Moniz (APDE’s President) and the interventions of Alessandra Silveira (Editor), Joana Covelo de Abreu (Editor) and José Manuel Fernandes (Member of the European Parliament, EPP’s Coordinator of the Committee on Budgets and Recovery and Resilience Facility Mechanism’s negotiator). In order to keep a record for future memory, some ideas presented by the participants will be reproduced in this review.

Speakers reflected on how the European Union has been playing a relevant role on the rule of law protection and has been proclaiming itself as a “Union of law”. They started by analysing the concept of rule of law and its implications from the Treaties, the CFREU and the Court of Justice jurisprudence – mainly from Les Verts^[1] and Associação Sindical dos Juízes Portugueses^[2] judgments (the later also known as “Portuguese Judges”)^[3]. They also focused legal procedures that act against violations of the rule of law enshrined on Article 7 TEU, and the infringement procedure steaming from Article 258 TFEU, envisaging the possibility of Member States to explore the procedural way opened by Article 259 TFEU, namely because the political tension escalade within the European Union. But the preliminary ruling procedure of Article 267 TFEU was also mentioned as continuing to play an important role to national judicial authorities when they are facing the need to comply with EU law. Lastly, speakers also devoted their attention on the Rule of Law Conditionality (Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget) and on the debate around its approval and implementation.

Why acknowledging and emphasizing this theme now? Because there is no idea of legitimate power without the idea of law, since law legitimizes the exercise of power, insofar as it controls and moderates it. Currently, decisions in the field of civil and commercial law of any national court must be automatically recognized and enforced in another Member State; and, in the same sense, a European arrest warrant issued in one Member State must be executed in another Member State. This clearly illustrates why all European citizens are affected if the rule of law is not fully respected in a given Member State – which threatens the functioning of the European Union as a realm of freedom, security, and justice without internal borders. That is why the European Union’s capacity to defend the rule of law is essential, because it is a question of fundamental values, a question of “who we are”, as the European Commission’s Vice-President, Frans Timmermans, has already stated.

A “Union of law” such as the European Union presupposes the exercise of a jurisdictional function – separate and distinct from the governmental function. Based on the criteria of judicial independence, the jurisprudence of the Court of Justice has broadened the scope of protection of the principle of the “Union based on the rule of law” (what does it protect? what does it prohibit?), imposed since the Le Verts judgment as a norm that i) imposes limits to the European institutions and Member States action in areas covered by EU law, and ii) provides guarantees to the rights of individuals affected by European provisions.

In the “Portuguese Judges” judgment, the Court of Justice was asked to determine whether there is a general principle of EU law, according to which the authorities of the Member States are obliged to respect the independence of national judges, as well as to maintain their remuneration at a constant and sufficient level so that they can exercise their functions freely. In its response, the Court of Justice underlined that Article 19 TEU obliges Member States to ensure effective judicial protection in areas covered by EU law. This embodies the value of the rule of law stated in Article 2 TEU and recognizes the integrated nature of the EU’s judicial system, as national courts play a role which is jointly assigned to them with the Court of Justice in order to ensure respect for the law in the interpretation and application of the Treaties. Thus, a problem related to the judicial independence in Portugal is necessarily a European problem since the national courts ensure the application of the EU law in each Member State.

To this extent, in the “Portuguese Judges” judgment, the Court of Justice defined judicial independence within the meaning of EU law, establishing criteria and guarantees for its proper exercise. In later judgments, the understanding of the concept is developed, according to which national courts and the Court of Justice share the responsibility for ensuring the full application of EU law in all Member States, as well as the judicial protection of the rights conferred on individuals by the European Union. On this basis, measures that make it impossible for national courts to perform their functions as courts of the European Union ultimately prevent the Court of Justice itself from complying with its jurisdiction under Article 19 TEU, in order to ensure respect for the law in application and interpretation of Treaties.

Still pending in the Court of Justice is the infringement procedure Commission v Poland (case C-791/19) concerning disciplinary legal framework applicable to Polish judges.  The national legislation i) allows judicial decisions to be qualified as disciplinary infraction; ii) does not guarantee the independence and impartiality  of the Disciplinary Section of the Supreme Court in its composition, while it acts as the competent authority to control decisions against judges in disciplinary procedures; iii) gives discretionary power to that Section’s President to determine which first instance court will be dealing with disciplinary procedures, setting aside the principle of natural justice; and iv) does not guarantee a decision in a reasonable time or defense rights to the accused judges.  Thus, as the national legislation seems to allow disciplinary procedures to be initiated against judges that made a preliminary reference to the Court of Justice, the effective judicial protection both as general principle and fundamental right could be affected (Articles 19 TEU, 47 and 48 CFREU).^[4]

In fact, since national judges are acting as European functioning judges, they are given, through the preliminary ruling, an unlimited power to initiate and maintain a jurisdictional dialogue with the Court of Justice, that cannot be limited by any action or omission of the Member State. Furthermore, the preliminary ruling procedure is at the service of an effective judicial protection withing the EU legal order as the national judge, in order to apply EU law, has to be sure of the interpretation to give a disposition of EU law or of its validity.

However, it is also important to consider that the rule of law is not only pursued through the courts, as all public bodies must live up to their responsibilities. Indeed, in the toolbox for the rule of law, within the framework of the European Union, there are also instruments of an essential political character – for example, the European Commission’s annual report on the rule of law, discussed and considered in other Union institutions since 2020, in order to identify weaknesses regarding judicial independence, the fight against corruption, media pluralism, checks and balances – that is, regarding the institutional framework for surveillance and scrutiny by public authorities.

Besides that, the procedure enshrined under Article 7 TEU is actionable when a sudden deterioration of the rule of law in a Member State requires a stronger and more structured reaction on the part of the European Union. To date, this procedure has only been triggered in two specific cases: in December 2017 against Poland (at the initiative of the European Commission) and in September 2018 against Hungary (at the initiative of the European Parliament).^[5] However, the procedure never went beyond the first phase (verifying the existence of a manifest risk of a serious violation of the values of the Union), the deliberation of which does not require the unanimity of the Member States but the qualified majority of 4/5 of the members of the Council. The unanimity of the European Council is only required in a second stage in order to verify the existence of a serious and persistent violation of the values of the Union. The Portuguese Presidency of the Council of the EU has finally announced its intention to hold the hearing of Hungary and Poland at the end of June 2021 – a procedure triggered under the application of Article 7 TEU. However, in Hungary’s case, this process is only being carried out more than ten years after the first alarms were rang by the European Parliament, which would have made it possible to act on time and to avoid the worst.

As for the Rule of law Conditionality (Regulation 2020/2092) – aimed at protecting the Union’s financial interests, which are at risk due to the general weakness of the rule of law in a Member State^[6] –, its application depends on the decision of the Court of Justice regarding two actions for annulment, namely case C-156/21 (whose applicant is Hungary) and case C-157/21 (whose applicant is Poland) both of 11 March 2021. Regarding the Rule of law Conditionality Regulation, it is important to highlight the European Parliament Resolution of 17 December 2020, in which the Parliament demarcated itself from the Conclusions of the European Council of 10 and 11 December 2020, according to which i) the guidelines to be adopted by the European Commission regarding the application of the Rule of Law Conditionality Regulation will be developed in close consultation with the Member States, and ii) until these guidelines have been completed, the European Commission will not propose measures under the Rule of law Conditionality Regulation.^[7]

The European Parliament reacted strongly to the European Council’s conclusions by stressing the fact that it does not exercise legislative functions and that a political statement by the European Council does not represent an authentic interpretation of the legislation. Thus, the European Commission´s Vice-President, Vera Jourová, admitted publicly at the “High Level Conference – Rule of law in Europe” (Lisbon, on 21 May 2021) that, as soon as the Court of Justice decides on the Rule of law Conditionality Regulation, it will be applied retroactively from 1 January 2021, with the European Commission vigilant of any breach of the rule of law after that date.

After the conclusion of the webinar, new developments arose which should be duly noted. Through its Resolution of 10 June 2021 on the rule of law situation in the European Union and the application of the Conditionality Regulation, and considering that the efforts by the European Commission to enforce the Rule of law Conditionality were not meeting its legal obligations, the European Parliament gave a 2-week deadline to the Commission before taking legal action under Article 265 TFEU. The European Parliament highlighted that the Rule of Law Conditionality Regulation entered into force on 1 January 2021 and is directly applicable in its entirety in the European Union and all its Member States for all funds of the EU budget, including resources allocated through the EU Recovery Instrument since then. Thus, the European Parliament urged the Commission to react swiftly to the ongoing severe violations of the principles of the rule of law in some Member States, which are causing a serious danger in relation to the fair, legal and impartial distribution of EU funds, especially under shared management, and to conduct a thorough analysis of the need to trigger, without any undue delay, the procedure envisaged in the Rule of Law Conditionality Regulation.

Are such mechanisms of political control concerning the respect for the rule of law in the European Union enough? Apparently not, since the governments of the Member States play both sides – the national and the European one – and tend to protect each other when they integrate the European institutions of intergovernmental character – namely, the Council of the European Union and the European Council. Perhaps, it may be necessary to come up with solutions that have been proposed by the European Parliament for years, such as the establishment of an independent Copenhagen Commission, which does the recurrent verification of the rule of law and fundamental rights in all Member States – an idea developed in the European Parliament Report of 30 January 2019 on the application of CFREU. Given that there are criteria for the accession of a European State to the European Union under Article 49 TEU – criteria adopted at the Copenhagen European Council in 1993 –, these cannot only serve as pre-conditions for accession, but also as references on the basis of which Member States are periodically evaluated.

Furthermore, the Strategy of 2 December 2020, aimed at strengthening the application of the CFREU [COM(2020) 711 final], provides that from 2021 onwards the European Commission will present a new annual report on the application of the Charter in the European Union. Unlike the Commission’s previous reports on the CFREU, this one will look more closely at the application of the Charter in the Member States and will provide the Commission with new elements for assessing the compliance of national legislation with Union law. A Eurobarometer survey showed that only 42% of respondents had heard about the Charter and that only 12% actually know what it is and what it stands for. However, six out of ten respondents want to know more about their rights and what bodies and institutions they should turn to, and whether their rights under the Charter have been violated.^[8] Perhaps the “Conference on the Future of Europe” could become a forum for reflexion and dialogue around multiple issues associated with the development of a “Union based on the rule of law”.^[9]

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[1] Judgment Parti écologiste Les Verts v European Parliament, of 23 April 1986, 294/83, EU:C:1986:166.

[2] Judgment Associação Sindical dos Juízes Portugueses (“Portuguese Judges”), of 27 February 2018, C-64/16, EU:C:2018:117.

[3] On the theme, see Alessandra Silveira and Sophie Perez Fernandes , “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”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 3 April 2018, 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/ Alessandra Silveira, “Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 8 July 2019, https://officialblogofunio.com/2019/07/08/building-the-ecj-puzzle-on-judicial-independence-in-a-union-based-on-the-rule-of-law-commission-v-poland-in-the-light-of-asjp/

[4] On the theme, see Joana Covelo de Abreu, “LM judgment – effective judicial protection as general principle and fundamental right”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 3 November 2018, https://officialblogofunio.com/2018/11/03/lm-judgment-effective-judicial-protection-as-general-principle-and-fundamental-right//

[5] On the theme, see Alessandra Silveira and Maria Inês Costa, “The rule of law and the defense of citizens against any power: on the case C-650/18 Hungary v European Parliament”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 4 June 2021, https://officialblogofunio.com/2021/06/04/the-rule-of-law-and-the-defense-of-citizens-against-any-power-on-the-case-c%e2%80%91650-18-hungary-v-european-parliament/

[6] On the theme, see José Manuel Fernandes, “The EU budget: a legal constellation for the recovery”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 1 March 2021, https://officialblogofunio.com/2021/03/01/editorial-of-march-2021/

[7] On the theme, see Pedro Froufe and Tiago Cabral, “Heresy, realpolitik, and the European Budget”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 4 January 2021, https://officialblogofunio.com/2021/01/04/editorial-of-december-2021/

[8] Special Eurobarometer No. 487b, Awareness of the Charter of Fundamental Rights of the European Union, March 2019, https://op.europa.eu/en/publication-detail/-/publication/096795a7-8d89-11e9-9369-01aa75ed71a1

[9] On the theme, see Alessandra Silveira/Joana Covelo Abreu/Pedro Froufe/Tiago Cabral, “Conference on the future of Europe and the defence of European values”, Thinking & Debating Europe – the official blog of UNIO – EU Law Journal, 6 May 2021, https://officialblogofunio.com/2021/05/06/editorial-of-may-2021/