3.1 The Toolbox
Many instruments might be used to defend European values. They are of diverse legal nature (political, administrative and judicial, binding and non-binding), they pertain to different legal orders and they are applied by different, sometimes even competing institutions, such as a constitutional court and the CJEU. That calls for a coordinating legal doctrine comprehending several legal orders.
Such a doctrine should not force the different instruments into a Procrustean bed. Instead, it should elaborate their diversity while indicating how to connect them as part of a functional tool box. Coordinated actions are more promising, whereas uncoordinated ones might be counterproductive. In more general terms: a clear and univocal reaction of the many European voices is essential for the protection of the Union’s values.
Instruments of Union law are at the centre of attention.Footnote 47 This is justified insofar as action by the Union reduces the pressure on Member States to take steps on an individual level: the latter, e.g., a reprisal, can be even more explosive than pressure by the Union.Footnote 48 Among the instruments of the political institutions, measures taken under Article 7 TEU, the Commission’s Rule of Law Framework and the rule of law dialogue of the Council are at the forefront.Footnote 49 The Commission’s Justice Scoreboard 2018 has become a supervisory instrument, too,Footnote 50 as has the Commission’s Country Report on Poland within the framework of the European Semester.Footnote 51 Regarding some Member States, the Union disposes of additional instruments. The Cooperation and Verification Mechanism in the Treaties of Accession with Bulgaria and Romania is meant to ‘see the two countries develop the effective administrative and judicial systems needed’.Footnote 52 The Treaty of Accession with Croatia contains a similar instrument.Footnote 53 Further instruments are being planned: the Commission wants to make funding subject to respecting EU valuesFootnote 54 and to launch an ‘EU Justice, Rights and Values Fund’ with an overall budget allocation of 947 million EUR.Footnote 55
In the framework of the European Parliament, there are the plenary debate, the law on sanctioning radical political parties,Footnote 56 as well as disciplining instruments within Europe’s political alliances.Footnote 57
Then there are the courts.Footnote 58 Unlike political bodies, they cannot avoid making decisions. The CJEU can be called upon to decide via the infringement and the preliminary ruling procedures; both can lead to severe financial sanctions. Furthermore, the CJEU can support actions of political institutions: an important example for this is the role it attributes to the qualifications made in the Commission’s proposal to institute a procedure under Article 7 TEU.Footnote 59 Accordingly, such a proposal is sensible even when the Council and the European Council are unlikely to act.
The Union’s institutions apart, those of the Member States can also defend European values. In this context, the tool box of international law is to be considered, from retaliatory measures to the mechanisms of the Vienna Convention on the Law of TreatiesFootnote 60 to the extreme and contested option of an eventual humanitarian intervention in case a state turns to state terrorism.Footnote 61 The governments of the Member States can coordinate such international instruments, as was the case against Austria in 2000.Footnote 62 They could also consider, and threaten, to advance integration among themselves, excluding the countries that do not conform with the values.Footnote 63
Member State courts, too, dispose of relevant instruments. They can defend European values against their own state in the light of a ‘reverse Solange’ doctrineFootnote 64 or against another Member State in the light of a ‘horizontal Solange’ doctrine.Footnote 65 The CJEU can support them in this via preliminary rulings. An important question is to what extent national courts can proceed independently from Union law on such matters.Footnote 66
Other pertinent measures are those of the Council of Europe, especially recommendations issued by its political institutions or by the Commission for Democracy through Law (Venice Commission), as well as decisions of the ECtHR.Footnote 67 While the Council of Europe far exceeds the EU-centred European legal space, its relevance inside the European legal space flows from Article 6 (3) TEU, Article 52 (3) and Article 53 of the CFR. On an operative level, there is a close institutional connection.Footnote 68
Given that this legal framework comprises instruments of Union law, international law and the law of the Member States, it pertains to European law and not simply to Union law, international or domestic law alone.Footnote 69 In the tradition of public law thinking, such a doctrinal framework is to contribute to legal instruments promoting their legitimacy as well as their efficacy. Its most important building blocks are legal basis (Sect. 3.2), procedure (Sect. 3.3), the material standards (Sect. 3.4), and control (Sect. 3.5).
3.2 Questions of Competence
Any action to protect European values is prone to escalation. Therefore, it should be in the hands of institutions that can shoulder such a responsibility and manage conflicts. The first aspect responding to this concern is the requirement of a legal basis, in many cases even the need of a specific competence.Footnote 70 Thus, the first question is to verify whether its adoption and use are supported by a legal basis.
3.2.1 Article 7 TEU in the Order of Competences
Article 7 TEU plays a key role in this respect, as it might bar other reactions to systemic deficiencies under Article 2 TEU. In this case, the defence of the values would be completely under the control of the governments of the Member States, united in the Union’s institutions. Responsibility, therefore, would be crystal clear. The drawback is that the extremely high requirements of Article 7 TEU might leave EU values without defence. Besides this consequentialist consideration, doctrinal arguments likewise militate against interpreting Article 7 TEU as an exclusive mechanism.
A first issue is whether Article 7 TEU prohibits pertinent measures by Member States. Article 3 TFEU does not list Article 7 TEU. Article 4 TFEU, which enumerates the main areas of shared responsibilities, does not feature Article 7 TEU either. However, it lists the space of freedom, security and law. Hence, there could be an argument to assume precedence of measures of Union law vis-à-vis a defence by Member States. Then there is Article 344 TFEU.Footnote 71
The CJEU’s case-law seemed to point towards pre-emption, especially in cases like Melloni, which excluded the unilateral enforcement of one Member State’s constitutional principles against another.Footnote 72 After the German Federal Constitutional Court emphasized its competence to protect the constitutional identity of the German Basic Law against measures taken by other Member States, too,Footnote 73 the CJEU has acknowledged that European law leaves room for the national defence of fundamental principles.Footnote 74 Since the European values of Article 2 TEU and the identity-informing fundamental principles of the Member State constitutions widely overlap,Footnote 75 neither the competences of Article 7 TEU nor other instruments of Union law block Member State institutions from defending European values, according to this case-law. This corresponds to the logic of the European legal space not to monopolise a central question such as value defence in one institution. The considerable need for coordination must be met with other means.Footnote 76
The second issue is whether Article 7 TEU bars actions taken by other Union institutions. Article 7 TEU does not contain an explicit statement as to whether other Union institutions may defend European values using other instruments. The general rules apply. It is well established that a specific procedure designed to deal with a certain problem does not exclude developing other instruments,Footnote 77 a core statement since the Van Gend en Loos judgment.Footnote 78 Accordingly, it is, in principle, admissible to develop new instruments,Footnote 79 such as the Commission’s Rule of Law Framework, or the Justice Score Board.
Nevertheless, Article 7 TEU plays a role. Its wording, the inclusion of the European Council and the extremely laborious procedure in Article 7 TEU indicate that it stipulates the most intensive form of defence of values. Therefore, the Union lacks any competence for developing stronger instruments. Hence, the expulsion of a Member StateFootnote 80 or the dismissal of its government, an instrument the Spanish government used against the Catalan government, are off limits.Footnote 81 All instruments complementing those of Article 7 TEU in defending the values of Article 2 TEU must be less severe.Footnote 82
3.2.2 Instruments of Secondary Law
So far, action under Article 7 TEU is paralyzed by the Council and the European Council. Can other institutions defend the values through other instruments? As has been shown, Article 7 TEU does not prohibit other instruments. But any new instrument needs an appropriate legal basis. This requirement results from the necessity to legitimise any action of public authorities, including ‘soft’ measures.Footnote 83 A new instrument might even need a specific competence.Footnote 84
With a view to the European Parliament, its general tasks allow it to discuss any systemic deficiencies in the Member States,Footnote 85 and it has done so for a long time. Its resolutions have gained public attention. However, they have not had much impact yet.
Measures taken by the other institutions could yield more powerful results, which is why the law is more demanding than with respect to the European Parliament, as has been shown by developments in other fields. The CJEU has declared Commission Communications invalid due to lack of competence (!).Footnote 86 The Court’s requirement of a legal basis is particularly striking in the OMT procedure, whose subject was the mere announcement of a new instrument for purchasing bonds by ECB president Mario Draghi.Footnote 87
The legal service of the Council has disputed the power of the Commission to establish the rule of law mechanism;Footnote 88 here, the general problem comes to the fore. However, the admissibility of this mechanism flows from the Commission’s right to make requests under Article 7 TEU as well as its general role of a guardian of the Treaties according to Article 17 (1) TEU. On that basis, the Commission can also examine whether the Member States respect the values of Article 2 TEU. The competence to issue corresponding recommendations follows from Article 292 4th sentence TFEU.Footnote 89 These considerations also support the Justice Score Board.
Similar questions have emerged in the Council of Europe. One need only think of the sanctions imposed by its Parliamentary Assembly against Russian parliamentarians since the annexation of the Crimea.Footnote 90 Another example are the opinions from the Venice Commission issued without a request from the Convention state concerned.Footnote 91 All these measures constitute reactions to systemic problems and can be treated analogously to the considerations on the instrument tool box of Union law.
3.2.3 The Justiciability of the Values
The defence of values by political institutions has not been very effective so far. As so often in the history of integration, the question arises whether the judiciary can compensate for this. For the CJEU, this is a question of its powers within the procedures of the Articles 257, 258 and 267 TFEU. Article 7 TEU does not block these procedures; Article 269 TFEU only determines that the Court cannot review the material prerequisites of Article 7 TEU. Given the lack of any explicit ban and the CJEU’s general role in the union of law, there is good reason to assume that values can play a role in procedures under the Articles 257, 258 and 267 TFEU.Footnote 92
The actual crux is the justiciability of the values of Article 2 TEU. The term value can be interpreted as the Treaty makers’ attributing a vagueness to Article 2 TEU that excludes judicial application.Footnote 93 Arguments relating to the separation of powers might support this conclusion. The judicial application of values would immensely extend the courts’ sphere of power to highly political conflicts.Footnote 94 All of this can be avoided by considering the values not to be justiciable.
However, following the established path of European Union law, the Commission and the CJEU have legally and credibly condensed the values of Article 2 TEU so that they have become accessible to judicial decision making, the value of the rule of law being at the centre. The most important path to condensing the values lies in connecting these values to fundamental rights and the well-established principles of the common constitutional traditions.Footnote 95 The effort has proven successful: even from the Polish ‘White paper on the reform of the Polish judiciary’—which presents the highly controversial changes in the Polish judiciary as conforming to the values—one can gather that European values have come to permit concrete legal assessment.Footnote 96 Two Commission communications in 2019 bring these developments together.Footnote 97
Two judgments by the CJEU from 2018 are leading the way for the judicial operationalisation of the value of the rule of law. In the case Associação Sindical dos Juízes Portugueses (ASJP), the Court has operationalized the value of the rule of law by applying it together with another, specific and directly applicable Treaty provision. In the crucial passage, the Court states that ‘Article 19 TEU […] gives concrete expression to the value of the rule of law stated in Article 2’.Footnote 98 In the L.M. (Deficiencies in the system of justice) case, it enabled individuals to defend European values.Footnote 99 The case dealt with the protection of the separation of powers via an independent judiciary, and it accomplished this via the fundamental right to an impartial court and to a fair trial. The Court’s approach is reminiscent of the German Federal Constitutional Court’s Maastricht decision, which also made a fundamental principle (democracy) justiciable via an individual right (right to vote, Article 38 (1) of German Basic Law).Footnote 100 Since the L.M. case, the ‘vigilance of individuals concerned to protect their rights’ might also protect European values.Footnote 101
Accordingly, the courts, including Member State courts, can decide on the values of Article 2 TEU.Footnote 102 The values have become judicially applicable though the doctrinal paths may vary.Footnote 103 This expansion of judicial competence mirrors the importance of the values and the judiciary’s general role in the European legal space. By now, there is a judicial line of defence beyond the political rationality of Article 7 TEU.
The judicial applicability of European values means that constitutional courts, too, can defend them. However, in many Member States, Union law does not provide a standard of constitutional review, according to most constitutional courts concerned.Footnote 104 Some reasons for this reticence are of a rather more legal nature, especially the fact that Union law lacks constitutional rank in the domestic sphere. Other considerations are of a more political nature, in particular the consideration that the constitutional courts’ abstention from applying Union law facilitates a division of tasks that reduces conflicts between the CJEU and the constitutional courts.Footnote 105
These considerations meet with objections. There is enough interpretive scope to include Union law into the purview of constitutional courts,Footnote 106 as just decided by the so far reticent German Federal Constitutional Court.Footnote 107 Substantively, such a step would result in a more effective implementation of Union law. Moreover, it would strengthen the constitutional courts themselves: they could take a more active role in interpreting Union law and shaping the European legal space.Footnote 108
The pivotal point of the CJEU’s L.M. (Deficiencies in the system of justice) judgment is the fundamental right to a fair trial, Article 47 (2) CFR. It expresses a general legal principle which, in the European legal space, protects not only individuals, but also public authorities.Footnote 109 Moreover, it applies not only in judicial procedures, but whenever a legal subject is faced with the exercise of public authority,Footnote 110 especially when substantial interests are at stake.Footnote 111 This is the case with conflicts concerning systemic deficiencies: the interests in question here are the national reputation, the interest of prosecution, the effective functioning of the national judiciary, financial interests as well as the participation in institutions of the Union. A fair procedure is important not only for the legitimacy of any specific decision, but also for general cohesion in Europe.Footnote 112
Of the many procedural questions, only two will be addressed here. The first one concerns political and administrative procedures. A point of criticism regarding the measures taken by the Commission and the European Parliament is that their motivation is not the defence of Union values, but the sanctioning of an EU-critical stance. To prove this point, it is said that measures comparable to the Polish ones, when taken by EU-friendly governments, do not elicit any reaction.Footnote 113 Hence, the two institutions are accused of misusing their powers for partisan purposes.
As described above (Sect. 2.1), there is room for discretion when deciding whether to initiate a procedure. The accusation is thus to be dealt with under the doctrine on discretion. This doctrine does, however, not limit parliamentary debate: indeed, it is a general principle that parliaments enjoy full freedom of what to debate.Footnote 114 By contrast, the European Commission faces limits.Footnote 115 If it uses an instrument of supervision to sanction an integration-critical general attitude, this would amount to an illegal use of discretion. But to identify such improper use, hard evidence is needed. To date, the Commission’s actions seem justified by the extraordinary severity of the situations at hand.Footnote 116
With regard to judicial procedures, the core question is as to whether Member State courts have to refer a case to the CJEU if its subject is a possible systemic deficiency in another Member State. A national court can treat such a deficiency both in the light of the European values, as did the Irish High Court in the Celmer case,Footnote 117 and in the light of the fundamental principles of the national constitution, as in the case ‘Identitätskontrolle’ of the German Federal Constitutional Court.Footnote 118 The German Court has been much criticised for not having made a preliminary reference.Footnote 119
The general question of a constitutional court’s obligation to make such a reference has extensively been discussed.Footnote 120 When it comes to defending values, such a referral to the CJEU is of particular importance for hedging the relationship between the Member States in question. Only a procedure before the CJEU allows for defending European values in a process which respects the very rule of law because it requires a fair procedure. The Member State concerned must be involved. A national court can hardly provide the government of another state with adequate participation. A procedure before the CJEU appears to provide the only orderly way of deciding critical questions in another legal order. There is, moreover, the consideration that ‘Europe should speak with one voice’. Even if national courts refer to principles of national identity instead of European values, such national principles can be defended better in the framework of European values.Footnote 121
3.4 Material Standards
All systemic deficiency instruments contain elements describing a particularly problematic situation. Therefore, similar questions of interpretation and application arise. Three questions will be discussed: the interpretive condensing of the requirements (Sect. 3.4.1), the importance of a comprehensive and moreover collective assessment (Sect. 3.4.2) as well as the question of how concrete a violation must be (Sect. 3.4.3).
3.4.1 Red Lines
As doctrinal treaties, handbooks and commentaries on the German Basic Law show, many important features of a constitution, even of an entire legal order, can be inferred from principles such as human dignity, rule of law and democracy. To this end, German doctrine considers these principles as ‘laws of construction’Footnote 122 and even ‘optimization requirements’,Footnote 123 thereby justifying a scholarship that has something to say on almost any important issue as well as a judiciary that is confident in its sweeping law-making role. There are hints that the Commission is moving towards a similar expansive understanding of EU values, in particular of the rule of law value.Footnote 124 Indeed, the Venice Commission’s Rule of Law Checklist with its 53 pages, to which the European Commission refers, almost looks like a detailed manual that provides practitioners with guidance on almost any relevant question.Footnote 125
This cannot be a model for dealing with the values of Article 2 TEU, particularly insofar as they apply to the Member States’ legal orders. By using the term value in Article 2 TEU, the Treaty makers imply that its provisions are to be understood as vague and, thus, open.Footnote 126 And this openness is not an authorisation for the Union’s institutions to gradually outline an ever more detailed common constitutional law. While Article 2 TEU has become judicially applicable (see above Sect. 3.2), this does not change the fact that it should not develop into a homogeneity clause similar to Article 28 German Basic Law or Article IV Sec. 4 and Articles XIII to XV of the US Constitution.Footnote 127 That would force the constitutional autonomy of the Member States into a far too narrow corridor, going against European constitutional pluralism.
The ‘thickening’ of the Article 2 values might endanger European constitutional pluralism. The diversity of Member State constitutions, which is protected by Union law, is enormous. It comprises states with strong, weak or no constitutional courts, markedly different ways of organizing judicial independence, and considerably divergent protections of fundamental rights; it allows for republics and monarchies, parliamentary and semi-presidential systems, strong and weak parliaments, Westminster democracies and consociational democracies, and democracies with strong or weak party structures; and it respects strong or weak societal institutions, unitarian or federal orders as well as anarcho-syndicalist, Catholic, civic, laic, Ottoman, post-colonial, Protestant, socialist and statist constitutional traditions. All these elements play into the various systems of checks and balances, which is why European diversity is particularly pronounced when it comes to this basic feature of any constitutional order. It would be incompatible with this diversity to interpret and apply the values of Article 2 TEU in concrete cases in order to develop them into a kind of DNA of how to set up checks and balances on public authority in the European legal space.
Against this understanding one might argue that the EU Commission has made very detailed requirements on candidate countries,Footnote 128 including, for example, extraditing a former Croat general to the ICTY.Footnote 129 These detailed requirements, never challenged in Court, might be applicable to Member States after accession as well.Footnote 130 Technically, however, these requirements are not linked to Article 2 TEU but to the political Copenhagen criteria. Moreover, candidate countries and Member States have a fundamentally different status, and the accession criteria, finally, are subject to severe criticism themselves.Footnote 131
The constitutional considerations (2) resulted in the conclusion that the instruments for fighting systemic deficiencies serve the cause of ensuring essentials of the European union (Verbund), in particular its self-understanding as a community of values, the core of fundamental rights, and the principle of mutual trust, but nothing more. This explains the values’ vagueness as well as the extremely high hurdles in Article 7 TEU. The logic of restraint extends to the entire tool box. Consequently, the values are to be interpreted such as to only prohibit particularly problematic measures, without indicating a ‘right way’, let alone stipulating the basic organisation of Member State institutions. In this sense, they do not constitute ‘laws of construction’, but rather ‘red lines’.Footnote 132
The CJEU’s decisions can be understood in this light. The logic of red lines explains a reasoning which may appear rather ‘thin’ and therefore little convincing at first sight. In most cases, the pertinent value is illustrated only in a general manner, with reference to principles;Footnote 133 but there is only little interpretive development in view of the matter concerned. The central aspect is what cannot be tolerated. While the lack of interpretive development limits the persuasive power of the judgment, it is by this abstaining that interpretative standards which could considerably limit the Member States’ constitutional autonomy can be avoided.Footnote 134
In the seminal Aranyosi e Căldăraru judgment, the Court refers only to absolute rights, especially to the prohibition of inhuman treatment,Footnote 135 i.e. to norms which are part of the core of European self-understanding.Footnote 136 This likewise holds true for the essence of non-absolute rights: In the L.M. (Deficiencies in the system of justice) judgment, the CJEU states that the newly established disciplinary chamber is problematic, given its appearance as an instrument to cow judges.Footnote 137 The judgment outlines further ‘red lines’ by referring to the qualifications on Poland made in the Commission proposal under Article 7 TEU. Of course, the Court does not treat the proposal as a source of law. Nevertheless, the ‘information (…) is particularly relevant’ and thus serves to assess the Polish measures.Footnote 138 This Commission proposal concretely articulates which measures are incompatible with the values and must therefore be revoked for crossing ‘red lines’.
This logic of ‘red lines’ provides indications on how to rebut the presumption, founded in Article 49 TEU, that a Member State complies with European values. Such a doctrine, however, is fundamentally different from a conventional constitutional doctrine of principles that aims at developing from principles an ‘overall structure’ for the entire legal order.Footnote 139 It would rather have to follow the logic of ‘negative dialectics’, which is characterised by the very fact of not specifying what the ideal situation should look like, but rather what must not be.
3.4.2 The Comprehensive and Collective Assessment
Most institutions base the determination that a value has been violated on a comprehensive assessment. The analysis of the Commission’s and the CJEU’s pertinent decisions shows that they consider a series of facts to this end, often described in detail, in the light of principles that remain abstract.Footnote 140 Such an application, which essentially consists in a comprehensive assessment of developments, events, measures and political statements, is an exercise in discretion and hence inevitably evaluative, and in that sense political. This easily gives rise to the accusation that the decisions are biased or motivated by illicit considerations.Footnote 141
Yet, this practice of assessing is justified by three aspects. Firstly, it is the inevitable consequence of the restrained interpretation, which in turn is justified by the constitutional considerations described in the preceding passage. Secondly, the practice responds to the specific problems of legally capturing authoritarian tendencies. Thirdly, it must be taken into account that the comprehensive assessment is often based on similar perceptions of other institutions and thus takes place collectively (Einschätzungsverbund).
The central role of a comprehensive assessment is justified by the very nature of systemic deficiencies. Usually, the law is applied to a single action or measure. This mode fails with regard to authoritarian developments, as in most cases only a series of actions and measures in their entirety will reach the critical threshold. The actions and measures, taken individually, can often be plausibly justified.Footnote 142 The Polish government defends its judicial reforms by means of a legal comparison with ‘unsuspicious’ countries.Footnote 143 In order to establish a ‘clear risk of a serious breach’ of Article 2 TEU, a comprehensive view of all measures taken by the Polish government with regard to the judiciary is needed, with due consideration of the general political and social conditions of the country. One needs to assess the actions against the judiciary in the context of the actions against other controlling institutions, mainly the parliamentary opposition, the media, science, and NGOs.Footnote 144 This contextual approach has been confirmed by the Court of Justice stated in A.K., which dealt with the independence of the Polish Supreme Court’s Disciplinary Chamber.Footnote 145
A third aspect contributing to the legitimacy of a comprehensive assessment lies in basing it on concurrent evaluations of other independent institutions, institutions with a recognized authority in questions of values. The regular application takes place in an Einschätzungsverbund, i.e., the comprehensive assessment of all circumstances must be widely shared. The more institutions perceive a substantial problem, the stronger the evidence for a systemic deficiency.
It is noteworthy that when it comes to systemic deficiencies, interpretation and application are not presented as being autonomous, but as part of a collective assessment involving many institutions of various legal orders. The Commission and the CJEU, but also many other institutions, recur to other authoritative sources when dealing with such questions, in particular to judgments of the ECtHR and opinions of the Venice Commission.Footnote 146 Evaluations of international bodies as well as civic organisations are also significant.Footnote 147 In the light of the cherished autonomy of Union law, it appears especially noteworthy that the Commission and the Court give much weight to evaluations under the national legal order concerned; such evaluations even enjoy particular relevance. In the Polish case, an important point is that authoritative Polish voices consider the governing majority’s reforms as deeply unconstitutional.Footnote 148 Thus, a situation or measure is more likely to qualify as systemically deficient the more institutions of the various legal orders share this qualification.
Such a comprehensive assessment is also important in other respects. One need only think of the accusation that the Union itself does not meet the requirements that it demands Poland to fulfil.Footnote 149 Certainly, the possibility of the CJEU’s judges to be re-elected does not meet the highest standards of judicial independence. However, in pertinent research, it is undisputed that the CJEU is an independent court.Footnote 150
3.4.3 On the Concreteness of the Risk
The political institutions usually assess a general situation and decide whether there is a general risk for the values, for example by the Polish remodelling of its judiciary since 2015. For the courts, the question arises whether such abstract risk is enough for a judicial decision, or whether a risk would have to materialise concretely in the case at hand in order to be relevant. The L.M. case concerned the question of whether an Irish court must surrender an individual to Poland under a European arrest warrant notwithstanding the general remodelling of the Polish judiciary. The CJEU answered that the national court must verify in a two-step procedure (1) whether there is a systemic deficiency in Poland and (2) if there are ‘substantial grounds for believing that the individual concerned will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial’.Footnote 151
This two-step review helps to distinguish the legal procedure from the political one under Article 7 TEU. It thus contributes to justifying the CJEU’s decision.Footnote 152 However, it meets with considerable doubts. Since the measures of the Polish government undermine the independence of the entire Polish judiciary, any case runs the risk of being decided by a compromised judge at some point. Moreover, the CJEU’s stipulation that Member State judges must review the independence of their Polish colleaguesFootnote 153 appears hardly feasible.Footnote 154 At least there is a reversal of the burden of proof: in case of a (general) systemic deficiency, it is the Member State in question to give evidence that there is no concrete risk for the individual concerned.Footnote 155
The last building block is the issue of legal protection. It deals with the question of whether and how the instruments’ lawfulness as well as the lawfulness of their use can be judicially reviewed. Such review is a core aspect of the European rule of law: the control of public authority by independent and impartial courts is sometimes even considered the crowning element of the rule of law.Footnote 156 Article 269 TFEU therefore describes an exception that is to be interpreted narrowly.
Self-evident as this principle might appear, its application is problematic with regard to instruments that do not yield a legal consequence; the protection by the CJEU has long been fragmentary and uncertain in this respect. It appears anything but certain that a Member State can take legal action against a recommendation of the Commission in the framework of the rule of law procedure or against a classification in the Justice Score Board that damages its reputation. Yet, the more recent case-law of the CJEU is expanding judicial control with regard to such measures.Footnote 157 This should make control possible at least when a recommendation of the Commission results in indirect legal consequences, e.g., when it provides a basis for assuming a systemic deficiency.Footnote 158 However, there is need for more legal protection, e.g., against recommendations damaging a Member State’s reputation.
Another challenge is how to coordinate judicial control between the various legal orders of the European legal space. This leads again to Article 267 TFEU. There is an urgent need for such coordination when defending European values or their equivalents in the national constitutions. The coordination and control of national courts is primarily a task of the CJEU. Yet this does not imply that the CJEU itself is beyond control: it remains subject to the general mechanisms, which assume particular importance with regard to this explosive question. In this respect, the multilevel cooperation of the European courts might find here its finest hour.Footnote 159