President von der Leyen in her State of the Union 2020 address expressed the rule of law as being the “...guarantor of our most basic every days rights and freedoms...”.
The existence of the rule of law in a society is essential to the creation of an environment within which democracies and markets can function and flourish. The genesis of the term “the rule of law” can be traced back to Aristotle and its status as the building block of democracies has been confirmed since the time of the ancient Greeks.2 In today’s world the rule of law is no less important than it was in the classical world and the rule of law is no less relevant in the context of supranational bodies and international law as noted by the Secretary General of the United Nations in 2004.3 In relation the European Union, the rule of law is referenced explicitly as a fundamental value under Article 2 TEU which reinforces the primacy of the rule of law as a common European value uniform across all Member States.4
The strength of the rule of law in the European Union is directly connected to the ability for the Institutions, Member States and private parties to rely upon the recourse of the ECJ. The connection between the operation of a court and the effectiveness of the rule of law was made by the late Lord Chief Justice of England Wales Tom Bingam in his publication The Rule of Law.5 The unfolding of the rule of law crisis in Poland has tested the efficacy of the current EU legal structures which in turn has tested the competency of the Union in its obligation to uphold the Treaty framework and the foundational values that form its foundation. It is the connection between the jurisdiction of a judicial body and the rule of law that I wish to explore in this article in the context of the rule of law crisis in Poland.
The Rule of Law and the Treaties
Article 2 TEU outlines a number of fundamental principles that form the basis of the European Union and wherein the rule of law is explicitly referenced.6 Article 4 TEU places an obligation upon the Member States and the Union to engage with the aims and objectives outlined under the Treaties in the spirit of sincere cooperation.7
To protect the Treaty values found under Article 2 TEU a number of legal mechanisms are available. Article 7 TEU empowers the Council with the competency to suspend membership rights where a Member State is determined to be involved in persistent and serious breaches of the Treaty values and the aims.8 A key article in this protective framework is Article 19 TEU which provides for the competency of the Court of Justice of the European Union to ensure that the Treaty law is observed.9 Article 267 TEU provides a legal tool through which the uniformity of EU law can be ensured and it is Article 267 that acts as the primary tool through which the European legal order is maintained and consequently the rule of law is observed. Preliminary reference proceedings make up the largest percentage of proceedings before the ECJ and have consistently acted as an area of prolific judicial activity.10
The efficacy of Article 267 is essential to the operation of the rule of law in the Union and the democracies of individual Member States yet despite this there is one feature that severely impacts the operation of the preliminary reference procedure and its role in the maintenance of the rule of law within the EU. The decision of the ECJ is none binding and each judgment is relayed back to the referring national court who holds the exclusive competency to issue the final decision. As I will illustrate below approach to the application of the ECJ’s jurisdiction is ineffective as the operative assumption behind this the drafting of Article 267 is the principle of sincere cooperation. Since 2015 we have seen a growing pattern of undemocratic activity within the Union. This undemocratic activity undermines the efficacy of Article 267 TEU.
C824/18: the rule of law and article 267
In Poland the rule of law crisis crystalized in 2015 when there was a series of five judicial appointments to the Constitutional Tribunal in the wake of an election which was contested by the incoming majority party. To resolve this crisis a bill was introduced on 19 November 2015 by the Sejm to reform the composition and term lengths of the Constitutional Court. This bill was contested by the Constitutional Court. On 2 December 2015 the President of Poland swore in five newly selected judges to the Constitutional Tribunal in a closed midnight ceremony. On 3 December 2015 the Constitutional Tribunal ruled that the new bill was unconstitutional and of the initial recommended candidate judges, three were legally valid and the Court ordered that the three judges are immediately sworn in. The Polish executive disregarded the order of the court and more than 30 highly controversial judicial reforms were subsequently implemented and resulted in a high volume of judicial activity between Poland and the ECJ.11
C824/18 was a preliminary reference submitted in relation to a resolution passed by the National Council of the Judiciary in August 2018 regarding a decision not to present a number of candidate judges to the President of Poland for appointment.12 This resolution raised concerns regarding the competency of the national courts to ensure sincere cooperation relating to the protection and upholding of EU law per Article 4(3) TEU. The measure in question also raised doubts as to the national court's ability to ensure adequate legal protection under Article 19(1) TEU. Article 4(3) and Article 19(1) when read in unison creates a positive obligation on Member States to ensure the rule of law is maintained. It was on the basis of these concerns that the referring court submitted a referral under Article 267 raising two questions; firstly, did the resolution undermine the courts' ability to provide an effective remedy and secondly, did the resolution under equal access to the civil service and undermines the principle of institutional balance?
The referring court was subsequently placed under acute political pressure by the executive and legislative. The legislative promptly passed a new law on 26 April 2019 which discontinued all proceedings regarding individual appointment which had not concluded prior to the enactment of this new law in an effort to deny the national court the ability to rely on the provisions of Article 267. The Polish Minister for Justice submitted an application to the referring court to stay the proceedings on the basis that such proceedings did not require adjudication from the ECJ. This political intervention highlights the acuteness of the rule of law crisis in Poland and in response to the escalating series of events the referring court relied on Article 267 once again and referred an additional question to the ECJ; can Article 2, Article 4(3), Article 6(1), Article 19(1) and Article 267(3) be read in conjunction so that where a legislative removes the legal competency of the national courts to hear appeals relating to judicial appointments, legislates to discontinue currently active proceedings relating to said appeals and in doing so seeks to deprive the national court of the ability to rely upon Article 267 then could such acts constitute an infringement of the rule of law and a violation of the state's treaty obligations?
The protective framework contained within the Treaties had been invoked by the referring court and the efficacy of Article 267 as a protective tool used to maintain the rule of law was tested. In its judgment, the ECJ stressed the importance of judicial independence as a protective mechanism for the guaranteeing of the values common to the Member States. The ECJ accepted that Article 3 of the 26 April 2019 law infringed Article 19(1) and where amendments are made to a national legal system that deprives the a national court of its competency to rule on appeals relating to judicial appointments, declares such appeals to be discontinue by operation of law and further denies a national court the possibility to rely upon the provision of Article 267 such amendments give rise to an infringement of Article 19(1) and consequently prejudices the rule of law in a democratic society.
Article 267 and sincere cooperation
The ECJ was limited in its ability to fully address the rule of law issue in C828/18 which highlights the short comings of Article 267 as a protective mechanism as the preliminary referral procedure is designed with the assumption of sincere cooperation with the overarching treaty aims and objectives. It is the link between the requirement for sincere cooperation and the effective operation of the preliminary reference procedure that I am suggesting is a weak point within the legal order of the EU and a weakness that frustrates the rule of law in both the EU and the individual Member States. Where a Member State acts in a manner that is in opposition to the requirement of sincere cooperation and the judicial institutional lacks legal tools to address this issue the rule of law suffers and the ability of the Union to reach its Treaty objectives is hindered.
In C824/18 the link between court competency and the rule of law was illustrated in said proceedings as the operation of the preliminary reference procedure was actively frustrated by undemocratic activity on the part of the Polish government instances, namely the undermining of judicial independence by way of judicial appointments and acute political pressure exerted by the Polish executive upon the referring court.
Where independence of the judicial is undermined, this undermines the efficacy of Article 267 and highlights a weakness within the protective framework. In C828/14, the ECJ carefully addressed the political crisis in so far as the ECJ has the competency to do so. Ultimately, the ECJ settled that the outcome of the rule of law crisis in Poland rested with the referring court. The articles in question violated EU law and per the doctrine of primacy such articles and amendments should be disapplied as unconstitutional by the referring court however it is for the referring court to conclude the final outcome of the proceedings.
The ECJ can only go so far in its ability to address legal issues and where acute political issues arise that are undemocratic in nature the ECJ is limited in its ability to apply its jurisdiction. This is not a short coming of the legal order within the Treaties but rather highlights the issue of a lack political unity within the Union. Uniform interpretation of EU law across the Union is essential to the maintaining of the legal order within the Union and further acts as a key mechanism through which democratic and common values are maintained. Article 267 is not a tool designed to address political issues but rather serves as a key mechanism through which Treaty values are observed in all Member States in a legal context. Where good faith is no longer present the efficacy of the preliminary referral procedure is explicitly limited.
The European Union and you or why should you care?
The mechanism provided under Article 267 is not a suitable remedy when discussing protective mechanism in place to ensure the integrity of the Treaty framework. The Union is not just a community of economics but a political union. The weakness I have highlighted with reliance on relevant case law illustrates the limitations on the ECJ’s ability to address fundamental issues inherent to a democratic crisis. Article 267 requires Member States to act in sincere cooperation and in accordance with their Treaty obligations, commitments and objectives. Where a Member State willing chooses to disavow this provision, abscond the rule of law and actively undermine the democratic order of its national courts this places Article 267 in a precarious position wherein it is no longer fully effective. Article 267 is an exceptional mechanism through which uniform EU law is maintained and the provisions therein work insofar as the since cooperation of the Member State continues. The connection between Article 267 and the requirement to act in the spirit of sincere cooperation must be revisited on a political level. The rule of law crisis in Poland is not exclusively a legal issue but one that is political and thus one that can only be meaningfully addressed on a more formal Political level. The weak link between sincere cooperation and the operation of the ECJ highlights the need for further political integration.
The rule of law is a foundational value provided under Article 2 and it is integral that the rule of law is observed and vindicated to ensure the wider democratic function of the Union and to protect and promote the Internal Market. If the Union lacks the ability to adequately defend the Treaty order, then this is an issue that requires a solution. Political unity amongst the Member States is essential to addressing the limitations of the Union as expressed under the Treaty framework. The Union has limited competency to address actions of the Member States by design and this principle should continue to be observed. Article 267 is not designed to address a rule of law crisis in a Member State where sincere cooperation has receded. Any judgment of the ECJ can simply be ignored by a Member State if they so wish. This is precisely what Poland has done in relation to prior infringement proceedings and it is likely also going to be the ultimate outcome of the C828/14 judgment. The current legal order lacks “teeth”. Stronger action is required to ensure the Article 2 values, including the rule of law, are observed and maintained by all; both Institutions and Member States. Closer political unity and Institutional guidance is required to address the current crisis of the liberal democratic order currently unfolding in Europe.
In Poland we have witnessed the erosion of civic society, political legitimacy, democracy and judicial independence. The European Union is an ecosystem of political uniformity based upon shared ideals of democracy, freedom and equality as enshrined in the Treaties. The health of this ecosystem, the Union and the Member States, is based upon the protection of these common values as Europeans. Where democracy is threatened in one Member State this raises the risk of democracy coming under threat in another unless the weakness I have highlighted above are addressed. We have seen controversial elections and referendums in recent times and it is important that Member States are equipped with the correct tools to protect their democratic identifies. Article 267 represents an opportunity for the ECJ to protect and vindicate the fundamental values that exist at the heart of the European continent and the values essential to the unique national identities of each individual Member State. Without the robust legal means of protections this question is one of uncertainty and the unknown. We should all consider the implications of the rule of law crisis that is unfolding in Poland and use this as an opportunity to revisit current methodology relating to the preliminary reference procedure. Similar trends are emerging in other Member States and without the correct tools' the rule of law and democracy in Europe might be eroded by the rising tides of the “illiberal democracy”.