The relevance of judicial institutions in upholding the Rule of Law

Gonçalo Martins de Matos (Master’s student in Judiciary Law at University of Minho) 

Between the 15th and the 16th of February 2022, two landmark decisions were issued by two distinct courts: one regarding EU law, by the Court of Justice of the European Union (CJEU), and the other regarding Portuguese law, by the Portuguese Constitutional Court. We shall look at both of them and analyse what they introduce (or establish) regarding the defence of the Rule of Law.

We shall start with the CJEU’s decision. On 16 February 2022, the CJEU rendered its judgment in Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council. Both Cases emerged from two actions for annulment brought by the Republic of Poland and Hungary concerning Regulation (EU, Euratom) 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[1]. This Regulation adopted several provisions linking access to EU funding and the respect for the Rule of Law, with a view to “protect the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States[2].

In both actions, based on the “the absence of an appropriate legal basis in the TEU and TFEU, the circumvention of the procedure laid down in Article 7 TEU, 3 the European Union having exceeded its powers and on a breach of the principle of legal certainty[3], the applicants sought to annul the cited Regulation, with Hungary even asking alternatively for the annulment of several of its articles. It is well known by now that these two Member States are in a systematic backsliding regarding the Rule of Law, becoming increasingly illiberal States, recently even defying EU law and EU institutions. When the issue of linking EU funding and the respect for the Rule of Law was being discussed by the Council and the European Parliament, these two States always manifested their opposition to its adoption.

The CJEU’s decision strikes a heavy blow in these States’ intentions. The “Court of Justice, sitting as a full Court, dismisses the actions brought by Hungary and Poland against the conditionality mechanism which makes the receipt of financing from the Union budget subject to the respect by the Member States for the principles of the rule of law”, can be read in the title of the CJEU’s press release, adding that that “mechanism was adopted on an appropriate legal basis, is compatible with the procedure laid down in Article 7 TEU and respects in particular the limits of the powers conferred on the European Union and the principle of legal certainty”. By questioning the European Parliament’s and the Council’s “true” intentions, these States sought to link the Regulation under analysis to an interference from the EU in States’ sovereignties, therefore undermining the provisions laid down in the Treaties. The CJEU easily deconstructed such attempt, stating that, beyond the fact that, effectively, deficiencies regarding the Rule of Law affect seriously the mutual trust between Member States that the EU funds will not be misapplied or misused, also the Regulation in question “is intended to protect the Union budget from effects resulting from breaches of the principles of the rule of law and not to penalise those breaches as such”.

This landmark decision constitutes a huge step in the fight for the protection of the Rule of Law within the EU, a fight that many sceptics would say was lost. The CJEU breathes new life into this fight, showing that, not only this battle is far from lost, but also that this fight is possible and effective. At least, for now, it seems that way. We only hope that this is the case.

Now we shall look at the Portuguese Constitutional Court’s decision regarding the votes from Portuguese emigrants living outside Portugal[4]. The Portuguese electoral law attributes two representatives to the Portuguese people living in Europe and two representatives to the Portuguese people living outside of Europe. Usually, the vote count for these cases happens later than the national vote count. The problem is that, initially, representatives of two of the main Portuguese political parties, PS and PSD, had agreed to count every vote, regardless of voting admissibility (to cast a valid vote in the case of emigrants, one must attach a copy of their identification document to the ballot and send it by post to the competent authorities). Following that extremely dubious (if not illegal) decision, the President of PSD later complained about such a decision, which led to the vote counting assembly for the Portuguese migrants in Europe decision to invalidate about 80% of the emigrants’ votes, which had been mixed with the valid ones.

Following an appeal, resulting from PSD’s President’s complaint, by Volt Portugal, the Portuguese Constitutional Court decided to recognize that a lot of votes were invalid and that, consequently, the vote counting assembly’s decision should be revoked. The Constitutional Court also decided to declare the nullity of the electoral process for the Portuguese migrants in Europe, determining the repetition of the electoral act as well, this time within the legality of the electoral law.

Now the curiosity about these two cases, which seem disconnected at first: both are about political undermining of democracy and the Rule of Law (in different intensities, notwithstanding). As a matter of fact, as we clearly gaze upon Hungary’s and Poland’s descent into illiberal regimes, through their Rule of Law backsliding, in the Portuguese case we detect, in the two parties’ actions, a certain level of political arrogance which translates into undermining basic democratic principles, such as voting rights. In both cases, the Courts involved decided to put a brake in that backsliding and undermining. Our trust in the institutions can only be effective if those institutions follow the law, without circumventions or subterfuges. Fortunately, we can count on our judicial institutions to secure and uphold our rights and the principles that shape our democratic societies.

Another curiosity we must point out is that the Courts involved have some level of comparability: many authors compare the CJEU’s role in the EU to that of a Supreme Court or a Constitutional Court for the EU[5]. In this perspective, we find that the different Constitutional Courts’ role in general is far from theoretical or elitist, rather having such positive implications in citizens’ daily lives.

It is our hope that these decisions show political interests and potential threats to the Rule of Law that the judicial institutions are alert and ready to intervene and safeguard the most basic principles of Democracy and the Rule of Law. Particularly in these times when some good news on this subject are more than welcome.


[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32020R2092.

[2] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of Regions – A Modern Budget for a Union that Protects, Empowers and Defends The Multiannual Financial Framework for 2021-2027 (COM(2018) 321 final, Brussels, 2.5.2018, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018DC0321.

[3] CJEU, Press Release No. 28/22, page 1.

[4] Available, only in Portuguese, at: https://www.tribunalconstitucional.pt/tc/acordaos/20220133.html.

[5] See, among others, Alessandra Silveira, “Tribunal de Justiça da União Europeia (TJUE)”, in Enciclopédia da União Europeia, ed. Ana Paula Brandão et al. (Lisboa, Petrony, 2017), 462 (free translation).

Picture credits: AJEL.

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