WEBINAR 9: REMEDIES & RENEWAL - Shilly-Shallying and the EU’s Dichotomous Response to the Rule of Law Crisis
Teodora MILJOJKOVIC
25 November 2020
The complete saga of the European Union (EU)’s response to the rule of law backsliding among Member States – in its complexity and far-reaching consequences for all Member States, but also the EU itself – surpasses the scope of this short analysis. The elegant techniques and tools of illiberal regimes employed to dismantle the constitutional constrains on one hand, but also the inherent problems of EU values enforcement on the other, have been already well identified within the literature (detailed analysis is provided e.g. here, here and here).
The concerns which I will address may be analyzed through one broad dimension: this is the discrepancy between the robust approach of the European Court of Justice in its efforts to interpret the Article 19(1) of the Treaty on European Union (TEU) as “giving the concrete expression to the rule of law” on one hand and the vague and still dialogue-driven response of the European Commission on the other. The mixed signals of the EU’s response to rule of law backsliding sends the message to the self-declared illiberal regimes that their behavior will receive a scowl, but not yet an effective sanction.
The mentioned controversial dimension of the EU’s response to the rule of law crisis has already been systematically broken down within the legal community (for one of the most recent accounts, see here). In that regard, the scope of my analysis will be limited to emphasizing the dichotomy between the robust (in the given circumstances) legal protection of the rule of law as an EU founding value, deriving from the CJEU jurisprudence, and the Commission’s Rule of Law framework, which keeps falling short of its initial purpose.
The case I will be focusing on is Poland, as it presumably shows all the flaws of the EU’s approach to the rule of law protection among Member States. If the EU continues relying on the CJEU to grapple with the illiberal practices, the detrimental consequences of the Polish so-called reforms may become almost impossible to remediate.
From Article 7(1) TEU to Requests for Interim Measures
The obvious stillness of the Article 7(1) TEU procedure against Poland (2017) and Hungary (2018) was noted even by the European Parliament in its January 2020 Resolution and the concerns were reiterated again in September 2020 Resolution. All eyes were on the Commission to react swiftly to the ever-deteriorating situation in Hungary and Poland, primarily through infringement procedures. Infringement procedures have been recognized by the scholarship as having the great potential to tackle the rule of law problems, but in order for them to be effective, as Śledzińska-Simon and Bárd argue, they ought to be expedient and preferably followed by the request for an interim measure.
Despite the noted potential benefits of the infringement procedures, the fourth one initiated against Poland in August 2020, specifically in regard to the Muzzle Law, arguably came too late to make the Polish government halt its persecution of the politically “disobedient” judges. The Muzzle Law adopted in December 2019 was introduced under the PiS government’s already well-known pretext of fighting corruption within the judiciary as one the relics of the Communist past. However, the law’s radical disciplinary measures cast a serious doubt on the government’s assertion of “acting in good faith”.
This law, as it will be described below, serves to punish judges for their verdicts and it is a direct response to the CJEU’s assessment of the Polish reforms. The law enabled the Polish government to impose further pressure on national judges who attempted to implement CJEU rulings, upon the threat of proceedings before the very same Disciplinary Chamber of the Supreme Court whose independence was brought into question in the CJEU’s A.K. and Others decision (November 2019).
The Muzzle Law was, only days prior to adoption, assessed in an urgent opinion of the Council of Europe’s Venice Commission as unacceptable, since the amendments that it entails “diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the ECHR, the law of the European Union, and other international instruments.”
Despite the Venice Commission’s opinion, the EC request for interim measures from the CJEU in regard to the disciplinary regime for judges (belated though), and widespread criticism coming from both scholarship and relevant international bodies, the law went into force. On April 8th, the CJEU granted the interim measures and urged Poland to halt the work of its Disciplinary Chamber. Nevertheless, the Polish government kept its retaliating practice against the judges, which began with the suspension of judge Jyszczyszyn, who was the first one to try applying the criteria of A.K. and Others in the national realm.
As mentioned above, the Commission eventually did react to it by initiating an infringement procedure, stressing the key detriments of the Muzzle Law, already highlighted by the Venice Commission. Essentially, the controversial amendments broadened the scope of the notion of offense and made the content of judicial decisions subject to possible disciplinary sanctions, which opened the door to total political control of the judiciary.
ECJ jurisprudence – Necessary, but Far from Enough
According to the EU law scholar Laurent Pech’s insightful illustration, the legal war against Polish so-called reforms has been led in front of both CJEU and the European Court of Human Rights (ECtHR) through a number of cases.
The work of the European Court of Justice in carving the path towards the effective enforcement of the EU values and its efforts and of Advocate General Tanchev should be lauded, despite the inherent dilemma of double standards which may appear when the wide jurisdiction set under the Article 19(1) TEU gets applied outside the context of Poland and Hungary. The scope and implications of the CJEU case-law which addresses the principle of judicial independence of the Member States’ judges has been already thoroughly analyzed (for example, see here, here, here). In the well-known case Associação Sindical dos Juízes Portugueses v Tribunal de Contas (Case C-64-16 of 27 February 2018) the European Court of Justice sent a clear message not only to Portugal or Poland, but to all Member States, that the independence of national judges is an EU matter and that the CJEU will treat it as such. The specific question before the CJEU in this case was whether the temporary salary reduction of Portuguese public officials (including judges) violates the principle of judicial independence expressed through the right to an effective legal protection, as provided in Article 19(1) of TEU and Article 47 of the EU Charter of Fundamental Rights. The temporary reduction of judges’ salary essentially does not raise the same concerns as the pressure on the judiciary in Poland. However, the Trade Union of Portuguese Judges’ reliance on the principle of judicial independence gave the CJEU an opportunity to finally tackle the meaning of the rule of law as a founding value of TEU.
Relying on Article 19(1) TEU as the “concrete expression to the value of the rule of law stated in Article 2 TEU’, the CJEU reserved for itself a wide jurisdiction in all the future cases in which the principle of judicial independence as the necessary condition for the effective legal protection may emerge. As Pech and Platon already noted, the principle of judicial independence was already present in EU law, notably in Article 47 of the Charter of Fundamental Rights, but in the CJEU’s jurisprudence it emerged in the 2006 Wilson judgement.
However, unlike Article 47, which is limited in scope by the Article 51(1) of the Charter, Article 19(1) TEU gave the CJEU the opportunity to delve into the necessary but burdensome work of addressing the Polish judicial reforms. Within the first line of judgements in relation to the Polish judicial reforms (Commission v. Poland (C-619/18), Independence of the Ordinary Courts judgement (C-192/18) and most clearly in A.K. and Others ( Independence of the Disciplinary Chamber of the Supreme Court (C‑585/18, C‑624/18 and C‑625/18)), the CJEU set out the elements of judicial independence which should be taken into consideration by national courts when assessing whether to disapply the norm which grants jurisdiction to another court that doesn’t meet the requirements of judicial independence or impartiality under the EU law. In the A.K. and Others the CJEU asserted that it is not only a right, but also a duty of referring courts to assess the independence of judges.
Despite the CJEU’s necessary reliance on national courts to assess the independence and impartiality of the (fellow) judges, in accordance with the logic behind preliminary ruling, the whole set of pervasive and incremental ‘Frankenstate’ measures (i.e. combining deficient practices that normally exist as aberrations within a single legal system) that the Polish government introduced throughout this year precluded an efficient implementation of such a mechanism.
While we spent the last months concerned about the legal harassment of Polish judges (e.g. see the recent cases of judge Beata Morawiec or judge Irena Majcher) and waiting for the CJEU’s final ruling in Commission v. Poland (Case C-791/19), the question that emerges is – What else can be done?
Scholars suggest initiating a systematic infringement procedure which would in a comprehensive manner address the questions of the dubiously composed Constitutional Tribunal, the work of the National Council of Judges (NCJ) and the Chamber of Extraordinary Review within Supreme Court (further explanation provided below). That way, the CJEU would be able to provide a more structural remedy. Despite that being a viable option, swamping the courts cannot be the only response to the rule of law crisis. Legal protection of the rule of law might fix the consequences of the rule of law crisis (even that is questionable), but it cannot deal with the causes.
Dialogues, Recommendations and Naming and Shaming Toolkits
Besides the Sisyphean work of the CJEU, the European Commission’s second “battle front” against the practices diminishing the rule of law has been formed through its Rule of Law Framework which was introduced in 2014. According to the 2014 Communication on the “New” EU Framework to Strengthen the Rule of Law,
The Framework will be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law.
As Kochenov and Pech argued even before the framework was introduced, the dialogue-approach may function only as a warning mechanism for the Member States which display potential dangers as regards undermining of the rule of law, but not as any meaningful constraint in countries where rule-of-law violations are already apparent.
Nevertheless, the Commission insisted on this approach and has proceeded in a dialogue-driven manner. The Rule of Law Dialogue with Poland, which began in 2016, consisted of four recommendations to Poland issued during 2016/17. The Recommendations repeated that the Polish government should urgently remedy the effects of the 2017 legislative reforms which aimed at deep restructuring (capturing) all instances of the judicial branch – the Constitutional Tribunal, Supreme Court, ordinary courts and National Council of the Judiciary.
While the Commission continued to make recommendations and express serious concerns, the Polish government captured the whole judicial system under the pretext of departing from the Communist past. The most recent attempt of the Commission to make a difference through dialogue-driven soft law was expansion of its rule of law toolkit by issuing the long-awaited Annual Rule of Law Report, as a follow-up to the 2019 April Communication and the July 2019 Blueprint for Action. The 2020 report, consisted of the general assessment of the rule of law compliance within the Union, but also chapters on particular Member States, entails essentially preventive measures and relies on the promotion of the rule of law mainly through dialogue and promotion of a “robust political and legal culture of the rule of law” (for an incisive analysis of the report, see here and here).
However, the methodology followed in both the general summary and particular reports hardly goes to the roots of the problem. Other than being a useful reference within the EU rule of law discourse, the mentioned documents do point out to another important perspective - namely, they highlight the EU’s self-restraint to only a subsidiary and supportive role in rule of law protection among the Member States. As the 2019 Communication states: “the primary responsibility to ensure the rule of law rests with each Member State, and the first recourse should always be to national redress mechanisms”. One does not need to be a lawyer to see we’re at this moment far from the first-recourse-optimism.
As various scholars have suggested (see e.g. here, here, here), there are plenty of possibilities for the EU to reinvent its response to rule of law backsliding – other than stepping up on its infringement procedures, interim measures or making better use of Article 7(1) procedure, it could introduce rule of law conditionality in distributing funds.
Whatever path the EU chooses (and it could choose all of them), expediency is the key element. In that regard, positive developments can be noted as only one round of the “trilogue” (inter-institutional negotiations between the European Parliament, Council, and Commission) on the rule of law conditionality mechanism took place last month was enough for EU institutions to reach an agreement that from now on, EU Member States which disrespect the rule of law will risk losing their funds.
The procedure behind this mechanism will require the Commission to establish the existence of a rule of law breach and propose measures against an EU Government, which the Council would subsequently need to adopt with a two-thirds majority vote. Although the high threshold for the Council’s decision may raise considerable doubts about the effectiveness of the funding-conditionality, this agreement is one of the rare serious steps that the EU has so far taken to prove its proclaimed commitment to the protection of the rule of law principle.
Teodora Miljojkovic is a PhD researcher in Comparative Constitutional Law stream at Central European University in Vienna. Under the supervision of Professor András Sajó, Teodora’s PhD project examines whether and to what extent rule of law principle affects and limits the appointment and dismissal procedures of the judiciary in a comparative outlook. The goal of her dissertation is to offer a typological framework based on a comprehensive analysis of more than 15 jurisdictions. Her main fields of interest are rule of law theory, judicial reforms and legal philosophy. Teodora is an active member of the Serbian Association for Legal and Social Philosophy (IVRSerbia) and Belgrade Legal Theory Group. Currently she is a teaching assistant at Central European University on Rule of Law and Illiberal Democracy course, taught by Professor András Sajó.