The Rule of Law Crisis in Europe: What’s Next?

Abstract

The so-called “rule of law crisis” we are facing nowadays in Europe is almost certainly the most complex and profound one the European Union (EU) has faced since the Communities were initially founded. There are several reasons that may justify this statement. I will mention the two that I find the most prominent.

Patrícia Fragoso Martins Professor at Faculty of Law, Researcher at Católica Research Centre for the Future of Law, Universidade Católica Portuguesa.

1 Introductory Remarks: The Rule of Law Crisis in Europe

The so-called “rule of law crisis” we are facing nowadays in Europe is almost certainly the most complex and profound one the European Union (EU) has faced since the Communities were initially founded. There are several reasons that may justify this statement. I will mention the two that I find the most prominent.

In the first place, it is a crisis that goes to the heart of the European project. It compromises the core values on which the EU is built. It shakes the foundations of the EU, and the very raison d’être of the Communities. As every law student learns in the first classes of EU law, the European project worked historically as an instrument of promotion of democracy and the rule of law in Europe. It is precisely the threat to this original vocation of the EU that is at stake nowadays.

Secondly, it is also a crisis that while disclosing the imperfections and shortcomings of the European legal system – in particular the limitations of the arsenal of the juridical and political guarantees available in the EU to ensure respect for the rule of law – makes us question the fundamentals of the European model, in particular (i) the nature and scope of EU federalism, (ii) the balance between Member States competences and those of the Union, (iii) the reach of fundamental rights protection in the EU and the (iv) limits to principle of supremacy of EU law. Thus, this is truly a crisis felt at different levels of the rule of law, understood in all its complexities and specificities at the European level.

Therefore, considering not only the centrality of what is at stake – i.e., the survival of liberal democracy as the system of government common to all Member States of the EU and underlying to the EU political system as well – but also the questions and challenges it brings along, the current crisis is perhaps the most significant the EU has faced since its inception.

Truth be said, not everything in the “rule of law crisis” is bad nor damaging. The crisis is also an important moment for the European project for the positive things it may carry along. On the positive side, it constitutes an unique opportunity for the EU and its Member States to firmly and openly reaffirm their common values and reassert the essence of European foundations. Also, it has equally proven to be a moment to further develop and improve the so-called “rule of law toolbox” created under the current version of the Treaties. Furthermore, it has provided the European institutions with a renewed opportunity to promote integration through law and politics.

This has become visible, for example, in the well known and ground-breaking decision of the Court of Justice of the EU (“CJEU”) in the famous case Associação Sindical dos Juízes Portugueses¹, in 2018, where the Court affirmed that national courts and tribunals, for being entrusted together with the CJEU, with the duty of ensuring that in the interpretation and application of the Treaties the law is observed must, meet the requirements of effective judicial protection. A conclusion strictly drew from the combined reading of Article 2 TEU (which refers to values on which EU is based and common to its Member States), Article 4(3) TEU (which provides for the principle of sincere cooperation) and Article 19(1) TEU (stating the principle of effective judicial protection of individuals’ rights under EU law). This ruling has been praised as the most important judgment since Les Verts,² regarding the principle of the rule of law in the EU legal system, and has been considered to be the EU equivalent of the US Supreme Court case of Gitlow,³ regarding the principle of effective judicial protection (which led to the progressive application of the US federal Bill of Rights to all state norms even when the states act within their own sphere of competence marking the beginning of the incorporation doctrine)⁴.

Also, more recently, the Order of the President of the Court of October 2021 ordering Poland to pay the European Commission a daily penalty payment in an amount of €1.000.000,00 within an interim measures procedure - due to the lack of suspension of the application of the provisions of national legislation relating to the areas of jurisdiction of the Disciplinary Chamber of the Supreme Court - constitutes a good example on how far the CJEU is willing to go in this context. It is possible to say that, perhaps without surprise, the crisis has offered the CJEU a revived occasion to do what it does best: to promote European integration on legal grounds.

2 The Polish Case

The most visible face of the crisis is undoubtfully the Polish affair. The position of Poland has been problematic for several years now, having the European Commission activated Article 7 TEU against Poland in 2017 – which after an informal dialogue with this state constituted the first activation of said mechanism. Parliament would end up to resort to the same instrument against Hungary, the following year, in 2018. However, the features of Article 7 TEU, notably the strict conditions and procedures on which it rests, have demonstrated the essentially ineffective character of this solution⁵.

The Polish case has recently escalated with the delivery of the already famous judgment of the Polish Constitutional Tribunal of last October where the latter refused to comply with the decision of the CJEU on the inadmissibility of the rules of appointment of judges for the Supreme Court⁶. Indeed, in March 2021, the CJEU considered that the successive amendments to the Polish Law on the National Council of the Judiciary, which have the effect of removing effective judicial review of that Council’s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court were liable to infringe EU law⁷.

Polish resistance to European rules and standards has meanwhile risen to the level of the European Convention of Human Rights (“ECHR”), with the Polish Constitutional Court declaring, on the 24^th November of this year, that Article 6(1), first sentence of the ECHR is inconsistent with the Polish constitution, insofar as the term “tribunal” used in that provision comprises the Constitutional Tribunal of the Republic of Poland and insofar as it grants the European Court of Human Rights (“ECtHR”) the jurisdiction to review the legality of the process of electing judges to the Constitutional Tribunal⁸.

Focusing on the CJEU’s judgment, much has been said already about the dangers of the ruling and the possible implications of the resistance of the Polish Constitutional Court to the unconditional supremacy of EU Law over the national constitution. The European Commission had an immediate and inflamed reaction to the decision, firmly upholding and reaffirming the founding principles of the Union’s legal order, and stating that it would “not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law”⁹. Public opinion – and some academia - immediately started discussing the possibility of a Polexit¹⁰.

Notwithstanding, in my view, the ruling of the Polish court is less important for what it represents then for what it discloses. In fact, it is important to highlight that constitutional courts rulings refusing the full scope of the principle of supremacy of EU law are not new. They are not new to the CJEU; they are not new to the Polish Constitutional Court. There is truly “nothing new under the sun” with regard to the long judicial debate on whether EU law trumps national constitutional guarantees.

It is worth recalling that in 2020, in the peak of the first wave of the pandemic, the German Constitutional Court issued its first ruling where it refused compliance with the CJEU decision on the validity of the European Central Bank programme adopted in 2018, which allowed for the purchase of assets in secondary markets¹¹. As is well known, the German Constitutional Court has maintained, since the 1970s, an intense dialogue with the CJEU with regard to scope of supremacy of EU law, whose absolute and unconditional nature it firmly opposes. It has several times threatened to overrule EU norms on constitutional grounds, and in 2020 it made clear that it will not only “bark”, but it is willing to “bite” whenever the CJEU acts ultra vires¹². However, in 2020, despite the strong reaction by the European Commission¹³ - which later resulted in the sending of a letter of formal notice to Germany in June 2021¹⁴ -, no one discussed the possibility of Germany exiting the Union.

Without prejudice, the German ruling has been severely criticised by several scholars who have called the attention to the “precedent effect” of the decision. By actually refusing the authority of a CJEU’s ruling, the German Constitutional Court was opening the door for other episodes of disobedience by other Member States of the EU, which was particularly problematic with regard to those already involved the “rule of law fight” with the Commission¹⁵.

In any case, many other constitutional courts in Europe have adopted similar approaches – the French, the Italian, the Spanish among many others, and since 2020 also the Portuguese Constitutional Court -, a fact that the Prime Minister of Poland highlighted emblematically in his speech before the European Parliament following the delivery of the recent Polish ruling¹⁶. The Polish Constitutional Court has itself resisted the unconditional supremacy of EU law since the very beginning in its decision on accession by Poland to the EU¹⁷, later on a ruling the European Arrest Warrant¹⁸ and later on the conclusion of the Lisbon Treaty¹⁹. In fact, the Constitutional Tribunal of the Republic of Poland has never recognised absolute primacy of EU law over the Constitution.

As is well known, supremacy of EU law is involved in legal controversy since Costa/ENEL²⁰ was originally decided. The idea that every piece of EU law trumps every piece of national law has never been widely nor peacefully accepted by national courts throughout Europe. The constitutional dialogue between national and European courts on supremacy has been tense and intense, and every now and then problematic judgements by Member States courts have been delivered.

The problem is thus not resistance to primacy of EU law and it implications; the problem is mostly the context where the Polish ruling has been delivered. It is the first time a head of Government challenges directly the validity of the Treaties before a Constitutional Court. A Court which is in its majority allegedly composed of judges who are sympathizers of the Executive. Judges that have declared in radical terms the unconstitutionality of key provisions of the TEU in so far as they may hinder the sovereignty of the Polish State to decide on the domestic judicial system - which is a matter that according to that court rests on Member States and is not covered by EU competences. Thus, even if framed as a classical “supremacy affair”, the Polish ruling goes well beyond the dynamics of constitutional dialogues in Europe. And the current state of affairs in Poland serves to demonstrate that with regard to the supremacy conundrum not anything goes.

In fact, the threats to the independence of the judiciary in Poland have become widely known. It is a systemic problem along with other threats to the rule of law currently taking place in Poland. As mentioned above, the recent Polish ruling is in itself a reaction to a CJEUs’ decision on the rules applicable to the appointment of judges to the Supreme Court recently adopted by the Executive. And this is not the first European ruling in this regard.

In 2019, Poland was condemned twice for the rules on the retirement of magistrates. The CJEU considered that the reduction of the age of retirement of judges infringed the principle of tenure and thus the independence of the judiciary. Hence, in June 2019, the CJEU considered that Polish legislation concerning the lowering of the retirement age of judges of the Supreme Court was contrary to EU law²¹, concluding, in November 2019, the same on the Polish rules relating to the retirement age of judges and public prosecutors, adopted in July 2017²².

Furthermore, on the 19^th of November 2019, the Grand Chamber of the CJEU held, in an expedited procedure within a preliminary reference by a polish judge²³, that the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and reaffirmed, in a specific field, by Directive 2000/78, precludes cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal. The CJEU considered that that happens where the objective circumstances in which such a court was formed, its characteristics and the means by which its members had been appointed were capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the unreceptiveness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it. It would there be for the referring court to determine, in the light of all the relevant factors established before it, whether that did in fact apply to the Disciplinary Chamber of the Polish Supreme Court²⁴.

More recently, also within a preliminary ruling²⁵, in March of 2021, the CJEU held that the successive amendments to the Polish Law on the National Council of the Judiciary which have the effect of removing effective judicial review of that Council’s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court were liable to infringe EU law.

In April 2021, the Commission brought again an action for failure to fulfil obligations against Poland due to amendments to the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws, which entered into force in February of the year before²⁶. The Commission considered, inter alia, that: (i) the Polish law on the judiciary undermines the independence of Polish judges and is incompatible with the primacy of EU law; (ii) it prevents Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the CJEU; (iii) and that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to take decisions which have a direct impact on judges and the way they exercise their function. In the latter regard, considering that the competence of the disciplinary chamber extends to cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary, the Commission argued that the mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a “chilling effect” and can affect their own independence – which seriously undermines judicial independence and the obligation to ensure effective legal protection, and thus the EU legal order as a whole.

Pending the judgment of the CJEU in this case, the Commission asked the Court, to order Poland to adopt a series of interim measures. On 14 July 2021, the Vice-President of the Court granted all the Commission’s requests. On 27 October 2021, the Vice-President of the Court ordered Poland to pay a periodic penalty payment of €1.000.000 euros per day, from the date on which that order was notified to Poland and until such time as that Member State complied with the obligations arising from the order of 14 July 2021 or, if it failed to do so, until the date of delivery of the final judgment²⁷.

More recently, in July 2021, the Court held that the disciplinary regime for judges in Poland was not compatible with EU law²⁸ - a regime it had ordered Poland to immediately suspend in April 2020²⁹. The Court declared therein in that:

• (i) by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which is responsible for reviewing decisions issued in disciplinary proceedings against judges;

• (ii) by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts;

• (iii) by conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal “established by law”; and

• (iv) by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time, and by providing that actions relating to the appointment of defence counsel and the taking up of the defence by that counsel do not have a suspensory effect on the course of the disciplinary proceedings and that the disciplinary tribunal is to conduct the proceedings despite the justified absence of the notified accused judge or his or her defence counsel and, therefore, by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts…

… Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. Also, and more significantly perhaps, the CJEU held that “by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice of the European Union to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU”.

Finally, last month, in November 2021, within a preliminary reference, the CJEU ruled that EU law precludes the regime in force in Poland which permits the Minister for Justice to second judges to higher criminal courts; secondments which that minister – who is also the Public Prosecutor General – may terminate at any time without stating reasons³⁰.

The list of judicial proceedings before the CJEU on the issue of the independence of the judiciary speaks for itself. In parallel, the systematic violation of judicial independence in Poland has also been voiced by several other institutions in different fora, and has been the object of both academic and political debate and popular reaction³¹.

3 Other Examples: Hungary

We know that in this process Poland does not stand alone. Notably, the issue has been also the object of proceedings against to Hungary. Already in 2012, the CJEU deemed that the radical lowering of the age of retirement of judges was “unjustified discrimination founded on age”³².

More recently, in November 2021, the CJEU decided, within a preliminary reference by an ordinary judge, that EU law precludes a national supreme court, following an appeal in the interests of the law brought by the Prosecutor General, from declaring a request for a preliminary ruling submitted by a lower court unlawful on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings. In this case, disciplinary proceedings (which were in the meantime discontinued) had been brought against the referring judge. Since he was uncertain as to whether such proceedings and the decision of the Supreme Court were compatible with EU law and as to the impact of that decision on the action to be taken upon the criminal proceedings before him, the judge made a supplementary request for a preliminary ruling in that regard³³.

Hungary has also been brought to the CJEU on the grounds of the violation of other rule of law principles. Hence, it was condemned twice in 2020 for having restricted the funding of NGO's from abroad³⁴ and regarding the bill on universities targeting George Soros’ University of Central Europe³⁵. In June 2020, the CJEU considered that the restrictions imposed by Hungary on the financing of civil organisations by persons established outside that Member State did not comply with EU law; and, in October 2020, that the conditions introduced by Hungary to enable foreign higher education institutions to carry out their activities in its territory were incompatible with EU law.

Also in 2020, Hungary was condemned for its refusal to apply the relocation mechanism for asylum seekers, for illegally detaining asylum seekers in transit zones, and for failing to fulfil its international protection and return obligations. In April of said year, the CJEU decided that by refusing to comply with the temporary mechanism for the relocation of applicants for international protection, Poland, Hungary and the Czech Republic failed to fulfil their obligations under European Union law; and that those Member States could rely neither on their responsibilities concerning the maintenance of law and order and the safeguarding of internal security, nor on the alleged malfunctioning of the relocation mechanism to avoid implementing that mechanism³⁶. Later that year, in December, the Court held that Hungary failed to fulfil its obligations under EU law in the area of procedures for granting international protection and returning illegally staying third-country nationals. In particular, by restricting access to the international protection procedure, unlawfully detaining applicants for that protection in transit zones and by moving illegally staying third-country nationals to a border area, without observing the guarantees surrounding a return procedure, Hungary had breached EU law³⁷.

Furthermore, in November 2021, the CJEU held that by criminalising organising activities in relation to the initiation of a procedure for international protection by persons not fulfilling the national criteria for granting that protection, Hungary infringed EU law – as criminalising such activities impinges on the exercise of the rights safeguarded by the EU legislature in respect of the assistance of applicants for international protection³⁸.

And finally, it is worth mentioning that, in June 2021, the CJEU dismissed Hungary’s action against Parliament’s resolution triggering Article 7 TEU – i.e. the procedure for determining the existence of a clear risk of a serious breach by a Member State of the values on which the European Union is founded³⁹.

4 What’s Next?

Despite the latter ruling, actions for infringement initiated by the Commission (together with some brave preliminary references put by national courts to the CJEU) have served as a substitute for Article 7 TEU. Facing the shortcomings of the latter procedure⁴⁰, the Commission has resorted to the classical instrument of the actions for infringement against Members States who are deemed to be in breach of their EU law obligations, bringing those states to court.

It is furthermore clear that despite the legal and political difficulties associated with the current crisis, the Union cannot tolerate the existence of political regimes that bluntly breach the core values of the Union. The European Union is not based on a mere community of interests; it is grounded on a true community of values.

The question at this moment is thus: what now? What must be done next? Or what more can be done to manage the crisis and control the flourishment of illiberal regimes within the Member States of the Union? Although it can be difficult to anticipate the precise future conduct of all the relevant the actors, some alternatives can be pointed out.

4.1 Withdrawal from the Union (Article 50 TEU)

Starting with the avenues that seem less likely to produce relevant outcomes, the radical solution of withdrawal from the Union seems to be “off the table”. Although it has been argued that the Polish Constitutional Court ruling could be read as a full-blown implied decision to withdraw from the EU⁴¹, the argument is unconvincing. Plus, Poland has clearly affirmed its intention to continue to be part of the EU (although it is willing to contest some of the “rules of the game”). The words of the Polish Prime Minister before the European Parliament leave no scope for doubt: “For us, European integration is a civilisational and strategic choice. We are here, we belong here and we are not going anywhere”⁴².

4.2 Rule of Law Framework

Secondly, hopes do not seem to lie in the so-called “Rule of Law Framework”⁴³ and the more flexible and informal dialogue with Member States it enshrines. Although the mechanism was designed to 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”⁴⁴, the Commission has used this framework only once to try to stop developments in Poland. It has not used it against countries where it has expressed concerns, such as Malta (where the murder of journalist Daphne Caruana Galizia highlighted systemic failings in the judiciary), or Romania (where the then ruling Social Democratic Party legislated to try to protect its leader from corruption proceedings and increase its control over judges). More significantly, the Commission has contributed to weaken the tool when it failed to engage with Hungary.

In any case, in September 2020, Parliament called for the creation of a new mechanism to cover democracy, the rule of law and fundamental rights, which would consolidate and supersede existing instruments to avoid duplication - in particular, the annual Rule of Law Report, the Commission’s Rule of Law Framework, the Commission’s annual reporting on the application of the Charter, the Council’s Rule of Law Dialogue and the Cooperation and Verification Mechanism – and would be supported by “country-specific clear recommendations, with timelines and targets for implementation”⁴⁵. Non-compliance under the mechanism could lead to action under Article 7 TEU, infringement procedures or the implementation of budgetary conditionality. It would be expected that the current rule of law mechanism would be strengthened if it included such provisions, linking the monitoring of national situations to concrete means of action⁴⁶.

4.3 Article 7 TEU

Independently, it is important that the Council concludes Article 7 TEU procedure. Very few hearings with Member States have been organised so far. Several countries have held the Council presidency without organising any hearings.

It has been widely said that the Council will not be able to conclude the proceedings because the two currently targeted countries will support each other and prevent any decision to sanction them. However, the unanimity vote and the decision to apply sanctions fall under Article 7(2) procedure, not Article 7(1) which is open in both cases. The aim of the latter is to simply establish the existence of a “clear risk of a serious breach” of the rule of law, without the possibility of imposing sanctions. The Council, “where 25 states voted in favour of the conditionality regime in December 2020, should be able, if it has the political will, to muster the four-fifths majority required for this decision”⁴⁷.

Concluding Article 7(1) procedure would be the first time that the rule of law would be formally asserted by peers as being under threat. Although the opening of Article 7(2) is unlikely, as long as Budapest and Warsaw support each other, it would increase political pressure, especially if combined with other instruments such as the infringement procedures and the conditionality regime.

4.4 Actions for Infringement

Resorting to classical mechanisms, the European Commission could initiate further action for infringements under Article 258 TFEU. For instance, an action against Poland on the grounds of the illegality of the Constitutional Court ruling. After Commission/France⁴⁸, it is clear that the Commission could act on the basis of a breach committed by the judiciary. In the past, the Commission has refrained from doing so in similar cases, which could mean that this course of action could be seen as controversial and would have to be duly justified. In any case, this year the Commission has sent a letter of formal notice to Germany, concerning the German Constitutional Court’s Weiss judgment⁴⁹, arguing therein that through that judgment, Germany violated several fundamental principles of EU law, in particular the principles of autonomy, primacy, effectiveness and uniform application of EU law, as well as the jurisdiction of the CJEU under Article 267 TFEU.

Moreover, the Commission could initiate more judicial actions against Member States on rule of law issues. Several suggestions have been made and include at least three other judicial reforms in Poland regarding (i) the composition of the Constitutional Court and its non-compliance with the rulings of the CJEU; (ii) the competences of the Extraordinary Chamber of the Supreme Court, (which is responsible for, among other things, electoral disputes); (iii) and the composition of the National Council for the Judiciary, a body which has been suspended from the European Network of Councils for the Judiciary because of its political character⁵⁰.

Furthermore, pursuant to Article 260 TFEU the Commission maintains the possibility to ask the CJEU for the enforcement of its judgments through the imposition of a lump sum or penalty payment until the decisions of the CJEU are fully complied with.

4.5 Action for Systemic Violations of Rule of Law Principles

It has also been suggested that, based on precedent, the Commission could bring a new kind of action for failure to fulfil EU law obligations on the grounds of the existence of systemic and reiterated violations to the rule of law principles, which could allow for a more effective and wide-reaching judgement by the CJEU.

This would be a kind of “bundle judicial proceeding” that could respond not just to new laws/measures in isolation, but to actions that rely on non-independent bodies to dismantle or weaken checks and balances and would work along the lines of Article 7 TEU.

4.6 Facing Time Constraints

Additionally, as time is of the essence, the Commission could consider (i) reducing deadlines for action, (ii) open proceedings immediately after the adoption of the contested measures, (iii) reduce the time for the issuance of a reasoned opinion after an unsatisfactory response and refer the country to the CJEU if the Member State does not comply.

In addition, Accounting for the importance of time in complex judicial proceedings that may be prolonged beyond reasonable, the Commission should continue asking the CJEU to impose all necessary interim measures.

And it is wroth recalling that the CJEU may always decide to deal with certain cases under an accelerated procedure under the procedural rules in force, “where the nature of the case requires that it be dealt with within a short time”⁵¹.

4.7 The Conditionality Regulation

Notwithstanding all these possibilities, hopes lie mostly in the so-called “Conditionality Regulation”⁵² – the EU Regulation that provides for a general regime of conditionality for the protection of the Union budget. It has been said that this would allow to “hit where it hurts the most” by cutting off EU funding to Member States found to be in breach of the rule of law⁵³.

However, the European Council’s conclusions of December 2020 have casted doubts on the avenues opened under said regulation. In fact, not only Member States have qualified the possible recourse to said mechanism in numerous ways - affirming that the regulation will be applied in full respect of article 4(2) TEU, notably the national identities of Member States inherent in their fundamental political and constitutional structures, of the principle of conferral, as well as of the principles of objectivity, non-discrimination and equal treatment of Member States - but more importantly the Commission announced its intention to develop and adopt guidelines on the way it will apply the Regulation, including a methodology for carrying out its assessment. In this regard, the Council stated that, should an action for annulment be introduced regarding the Regulation, the guidelines will be finalised after the judgment of the CJEU so as to incorporate any relevant elements stemming from such judgment. Until such guidelines are finalised, the Commission committed not to propose measures under the Regulation.

That said, Poland and Hungary have brought actions for annulment against the regulation on March 2021. Both Member States contested the act on several grounds: arguing that (i) it rests on an incorrect legal basis, it breaches (ii) Article 7 TEU, (iii) the principles of conferral, (iv) institutional balance, (v) legal certainty, (vi) proportionality, (vii) equality of Member States, (viii) it impinges on the jurisdiction of the CJEU, and (ix) it violates EU financial norms. At this moment, both actions are still pending before the CJEU and it is not difficult to anticipate that these will be complex cases that may take the CJEU some time to decide⁵⁴, although the recent delivery of the Advocate-General’s Opinion - considering that both actions should be dismissed – is good news in this respect.

4.8 Political Process

These legal remedies should not in any case make obliviate the centrality of the political process. Despite of the avenues opened by the several juridical solutions and the possibility of combining all of them to maximize effectiveness, the threats to the rule of law in Europe need mostly to be politically contained. Courts can only do what they are meant to do. In Poland (and probably in Hungary) it seems that they will not be capable of doing much (although more references to the CJEU by national courts on rule of law issues may help to implement and complement the existing case-law). In any case, an answer must be found in the political dynamics of the European Union.

At this level, there is still something that can be done. As stated above, Council should resume Article 7 TEU, and Member States could be more involved in supporting the actions undertaken therein. Parliament could decide to systematically organise debates on the countries whose annual reports on the rule of law are the most problematic. The Commission could do more to explain its work, its intentions but also its constraints. As someone has put it: “the strength of the law and the range of existing instruments also lies in the confidence that the institutions inspire in citizens and governments”⁵⁵.

In reality, any solution to the crisis will much depend on some degree of goodwill and cooperation by Member States and the EU institutions. The crisis has put in evidence that the balance between Member States competences and those of the EU is a delicate one, with systemic implications, and cannot be solved exclusively through the classical judicial dialogue between European and constitutional courts. As the EU cannot resort to the force of arms to enforce EU law nor the CJEU’s decisions – as happened for instance in the USA with the episodes surrounding the enforcement of the Supreme Court’s decision in Brown vs. Board of Education, in September 1957, in Little Rock, Arkansas⁵⁶-, the role of politics is imperative.

5 Final Remarks

I end with two final notes.

A first one, to highlight that whatever the solutions to be implemented, the immediate demands of today should not make us forget the need to find a political solution that ensures the integrity of the Union and its nature as a Union of law in the long run.

A second one, to re-affirm that the current crisis should not be confused with previous episodes of constitutional crisis in the EU. The rule of law crisis runs much deeper. To be clear: constitutional dialogues and divergences play an important role in the EU if courts operate against the backdrop of constitutionalism (i.e., acknowledging separation of powers and protection of fundamental rights as the backbone of the EU constitutional legal order). Once agreement on the foundations of EU constitutionalism is at stake, no honest or loyal constitutional dialogue can take place. After all, it is not supremacy that constitutes an existential condition of EU law. At the end of the day, it is the primacy of the rule of law that truly constitutes the backbone of the European project. It is in the affirmation of the rule of law that the EU finds its original vocation and where its legitimacy is built every day.