By Alexandre Lejeune, masters student in Public Economic Law.
October 7th’ ruling of the Polish Constitutional Court, stating that provisions of European treaties were incompatible with the Polish constitution, struck fear in the hearts of euro-enthusiasts, as the perspective of a normative Polexit, and more generally, of the end of the deepening of European integration, ought now to become real.
This ruling is the paroxysm of a long struggle between the European institutions and the Polish state controlled by the PiS movement. The former has, indeed, been most insistent on making the functioning of the latter more in line with European values, and, more democratic, applying its own framework of what a liberal democracy ought to be, and what an illiberal one cannot.
Beyond being a paradigmatic example of the global trend in restating the supremacy of national constitutions in the European Union, this ruling is first and foremost a response to the extensive scrutiny of the functioning of the polish judiciary expressed through several rulings of the European Court of Justice in the past few years. Those rulings have in common an extensive interpretation of article 19 TEU on due process of law, initially restricted to the application of EU law, through the lenses of article 2 TEU listing the values of the European Union, amongst which lies democracy and most crucially, the rule of law.
Thus, this crisis is a perfect occasion to look back at the reasons why the European institutions, commission and ECJ aligned, have come to being concerned with the judicial institutions of their member states, and how this strategy of « democracy through law » might turn out soon.
We will describe how the European Commission has recently redrafted its mandate as that of warden of European values (I). Then we will demonstrate how the ECJ has promoted these last years the principles of liberal democracy within member states by applying a judicial scrutiny over the functioning of their judiciaries (II). Finally, we will ask to what extent the EU could be able, and legitimate enough, to pursue soon similar policies without overstepping on states’ national boundaries and further fueling Euroscepticism (III).
I – A « Europe of values »: the project of building the legitimacy of the Union by promoting the principles of liberal democracy within its member-states
The introduction of « values » as a defining feature of the European community
On her 2021 State of the Union Address, President Von der Leyen stressed the « determination [of the European institutions] to defend its values », which are « guaranteed by the judicial order » of the Union.
Now seemingly legitimate, such a statement by a European commissioner would have sounded out of context a couple decades earlier. Indeed, although implicitly part of the European project, the advancement of democratic principles in its member states was not explicitly part of the original objectives of the European Economic Community. This was in part since, being a club of liberal democracies, it did not have to.
However, the end of the Cold War created high hopes and possibilities of enlargement to former communist states. Thus, it justified the formal affirmation of the values of the EEC, those being then at stake, whereas the same values, would they have been self-evident, could very well have continued to be applied without any legal provision backing their existence.
Therefore, the Treaty of Maastricht introduced for the first time in 1992 the notion of values in the European Community’s fundamental texts, listing those that are, or ought to be, common to member states
Furthermore, the TEU indirectly mandates states to ensure a democratic functioning by stating that member states are represented by their government at the Council, which must itself be democratically accountable to its national Parliament or its citizens.
An internal mechanism for ensuring the respect by states of European values after their entry in the Union took the form of the article 7 procedure created by the 1997 Amsterdam treaty. It provides for a political, thus non jurisdictional, mechanism of alert and sanction activated by representatives of member states. After 20 years of existence, article 7, § 1 TEU was used for the first time against Poland on December 20, 2017.
Now, the attachment of the European Union to a set of core values and principles is essential to its identity and even, according to some political theoreticians, what distinguishes it from other international organizations.
The turn towards a concrete enforcement of the values of liberal democracy within member states by the European Commission
The 2004 and 2007 enlargements further raised questioned as to whether a clear common ground of values could be really pursued by western as well as eastern member states without positive actions by European institutions. Furthermore, the 2008 economic crisis questioned the efficiency of a « Europe of results » for creating popular adhesion to the community and re-legitimized an increased focus on normative discourse by the European Commission and the ECJ.
This trend has, with the Von der Leyen administration, taken hold. For instance, European institutions adopted in December 2020 a conditionality mechanism allowing a qualified majority of the Council to block the issuing of funds on states not complying with EU rules and regulations.
Furthermore, the functioning of national democratic processes is starting to enter the field of European regulations. It has recently issued a communication listing a series of requirements for political pluralism and an unbiased electoral process.
Also, an upcoming Commission’s regulation proposal aims at improving democratic processes by forcing disclosure by social media of detailed information on how political parties finance targeted ads on their websites. It also aims at regulating the way in which member states control the content of those ads and the potential misleading information within them.
Beyond being upheld by a proactive European Commission, the defense of European values, formerly limited to a political process pursued amongst member states, is now becoming increasingly jurisdictional, following a strategy coined as that of « democracy through law ».
The essence of democracy in a European sense: democracy through law
It is now a fully-fledged goal by the ECJ, to, in the words of Koen Lenaerts, President of the European Court of Justice, make the European Union’s fundamental principles and values the « constitutional cement » of the European institutions and of its member states.
The project of the European Union of promoting democracy can seem counter-intuitive to the extent that the European project itself is often labelled as suffering from a democratic deficit. Indeed, a common political theory definition of democracy is the ability of national political institutions to respond efficiently to the popular will. In this respect, the European Union has been accused of undermining national democracies by restricting the number of policies national representatives have hold upon.
However, the European Union’s definition of democracy is different of that of majoritarian rule and can rather be linked to the philosophical notion of the « open society ». Centred on individuals, it aims at ensuring that everyone can pursue its goals without being prevented from it or discriminated against. In the first version, a hyperintegrated Union is essentially antidemocratic. In the second, by ensuring the right of every individual to move, live and work freely without being discriminated against or subject to opression by the majority, it is at the forefront of democratization
Thus, democracy as understood by the European institutions is intrinsically linked to law. It is through the enforcement of rights for individuals that liberal democratic societies may emerge. Judges have, then, an important role to play in promoting democracy, as assessed for instance, in the works of the Venice commission on Democracy through Law, an institution created in 1990 whose explicit goal is to improve the legal system of member states to further their democratic functioning.
One could go as far as to say that, for the European Commission, democracy is the rule of law, as was expressed for instance by the fact that, during the assessment process of the democratic nature of the institutions of eastern European states applying for membership, it has been argued that the Commission did not clearly differentiate between the principle of democracy and that of rule of law, but merged the former in the latter.
II – The case law: enforcing the rule of law through the scrutiny of national judiciaries by the ECJ
From a control of the national enforcement of EU law towards the scrutiny of judicial independence per se
In contrast with the ECHR, which has long been controlling the functioning of judiciaries and their conformity with the principles of the rule of law, the CJEU had, up until recently, limited its control of the functioning of national jurisdictions. It was formerly mostly concerned with the existence of effective remedies in the area of EU law, with the aim of ensuring the homogeneity of its interpretations amongst all member states.
Unsurprisingly then, is Article 51(1) of the 2000 European Charter of Fundamental Rights stating that its provisions, which contains requirements on the rule of law (Article 47) only applies to matters regarding EU law and does not create in any way new competences for the Union.
However, in various recent cases, the ECJ has used in a quite extensive and creative fashion the article 19 TEU provision granting effective judicial remedies in combination with article 2 TEU in order to create a « meta norm » of judicial independence used for scrutinizing national judiciary systems’ organization. Behind this apparently technical control lies the goal of harmonizing the functioning of the judiciary in the European Union.
b) Commission v/ Germany : rule of law as judicial independence is preferable to democracy understood as government control over the administration
In Commission v/ Germany, the ECJ had to assess whether the control by the German government of an independent public commission created to regulate the use of data by private actors was contrary to European law. The German administration stated that for administrative bodies with scrutiny power over citizens to be controlled by government, itself elected by the people, complied with the democratic principle as understood by the German constitution. However, the ECJ disagreed, on the ground that preventing administrative bodies endowed with judiciary powers from political interference was part of the EU’s conception of the rule of law.
c) LM : the value of the rule of law under article 2 TEU can be used as proxy for assessing the independence of a national judiciary.
In the LM ruling, the ECJ stated that the right to due process, whose essence comprises the requirement of an independent judiciary, justifies a non-application of mutual reckoning in transnational cooperation matters, such as the European arrest warrant. In doing so, it implicitly controlled the conformity of the Polish judicial system with the value of rule of law comprised in article TUE 2.
In the ruling, the ECJ applied two criteria (the « Aranyosi test » for judging whether national judicial protection is ineffective up to a point where it would justify the non-application of certain European policies. The first criterion is objective: a real risk to the right to due process must be assessed based on the functioning conditions of the judicial system. The second is subjective: one must prove that the person in question has a real risk of being deprived of its right. To assess the first criterion, the CJEU bases itself on the fact that the Commission issued a motivated opinion under article 7 § 1 TEU to the Polish government for its risks of infringement of the value of rule of law.
In addition, it states that if the European Council had to declare a breach of the European value of rule of law under article 7 § 2, national judges would not even need to assess the subjective risks for the rights of the individual and could systematically refuse to enforce the European arrest warrant (§ 70). Thus, although leaving the assessment of infringements on the rule of law to the political entities, it reckons the values of article 2 TEU as a proxy helping judges to assess the risks of infringement of European rights and duties.
d) Commission v/ Poland & A.B and Others : The ECJ can assess whether the functioning of a national judiciary system grants an effective jurisdictional protection to individuals.
In the two « Commission v/ Poland » rulings on the Polish judiciary, dealing with reforms affecting the appointment and age limit of judges in circuit courts and the constitutional court, the ECJ substantially extends the spectrum of EU law. Using its case law concept of « essential content » of fundamental rights, the ECJ states that the independence of judges from government is a principle that forms the essential content of the rule of law and thus assess this independence by pursuing a general scrutiny of the functioning of the polish judiciary.
No EU law provision gives its institutions a mandate to regulate the functioning of national judiciaries on matters non-related to EU competences. However, using the reasoning first used in Associaçao Sindical dos Juizes Portugeses, the court linked the rule of law value mentioned in article 2 and that of effective jurisdictional protection of article 19 § 1 and stated that the former was a condition of the latter.
In March 2021, the Court of Justice confirmed this interpretation by, again, stating that a Polish law limiting the possibility of appeal of the national council in charge of appointing judges was against EU law, notably article 19 in the light of article 2.
III – The challenges ahead: how far will the ECJ go in its scrutiny of national judiciaries
Will the ECJ control the material functioning conditions of the judiciary?
The extent to which the independence of the judiciary comprises its financial endowments is still debated.
In Escribano Vindell, the ECJ assessed whether wages reduction of Spanish judges was commensurate with the duties they perform. Hence, they applied the principle of judicial independence for controlling management practices in the Spanish judiciary. However, this decision is quite isolated and was also motivated on grounds of non-discrimination, the case dealing with a reduction in wages for a specific category of judges without it being sufficiently motivated.
Still, it could be envisioned that the budgetary conditions and management practices of the judiciary could be controlled as being part of the principle of judicial independence. In France, although the Conseil Constitutionnel has not yet ruled on the question, the first president of the Cour de Cassation publicly stated that « the mastery of management as well as the budget equilibrium is part of the independence [of the judiciary] ». The upcoming reform of the judiciary launched by the presidential majority has also been fueled by a renewed questioning on the independence of the judiciary, notably due to its (lack of) budgetary means.
Could the ECJ scrutinize the relation between constitutional court and executive authorities?
The question remains of whether the ECJ could legitimately scrutinize the independence of national constitutional courts towards the executive. Indeed, it is not self-evident that constitutional scrutiny by a fully independent and professional court is an integral part of the rule of law. In most countries before World War Two, such a system did not exist, without countries such as France being labelled as anti-democratic, or illiberal. Furthermore, it is sometimes argued that the insistence on rules, rather than discretion, in the political decision-making process, leading in constraining leaders’ decisions with tight constitutional norms, is not per say a European value, but rather a German one. Hence, the EU increasingly steady stance on its values, in the case those would not in fact be upheld by all member states, could entail a pervasive divisive power.
How would the French react of the ECJ asked for a reformation of the discretionary political process for appointing members of the Conseil Constitutionnel ? Indeed, while our court is regularly packed with highly skilled diplomats, hauts fonctionnaires, former presidents, and more rarely, with actual judges, its German counterpart requires a high level of proficiency in law for its members and chooses half of them amongst lower court judges with an actual experience of this profession. We do not mean at this stage to appraise the german model and to desecrate the French one ; we intend, however, to show how well-inspired and unbridled European judges might easily do so. While the overall disapproval by western elites of eastern European illiberal parties’ policies currently makes it easier to accept some legal overstepping by the ECJ, this might not be so harmlessly accepted when the same reasonings will be applied to major western European states.
Intuitively, one might think that it would be very unlikely for the ECJ to go this far in scrutinizing the functioning of national judiciaries without stepping far beyond its boundaries, and encroaching on States’ national identities protected under article 4(2). However, it is not obvious that this article could safeguard judiciaries from all scrutiny. Indeed, according to some scholars, this provision intends to protect only the constitutional identities of the member-states, but does not apply, per say to every specificity in their laws and regulations (de Witte, 2021). Hence, the ECJ could find a justification for increasing its control on judiciaries, as it could argue that a judicial system is not a cultural item, but that every judiciary ought to be endowed with a set of objective criterions for proper functioning.
Still, two questions are currently left open. First, to what extent does the will of the European Commission to act in national electoral and political processes will be deemed conform to its prerogatives? Future case law on this matter ought to be of utmost political resonance. Second, what will be the reaction of national judiciaries to the scrutiny applied by the ECJ on their respective functioning? The recent Polish Constitutional Court case, however symbolic it may be, shows how reluctant national judges may be to accept the very idea of being subjected to universal standards. Maybe it is more than ever time to meditate on Blaise Pascal’s ever-relevant aphorism:
« On ne voit rien de juste ou d’injuste qui ne change de qualité en changeant de climat, trois degrés d’élévation du pôle renversent toute la jurisprudence. […] Plaisante justice qu’une rivière borne ! Vérité au-deçà des Pyrénées, erreur au-delà. »
(One never sees anything fair or unfair that does not change its nature by changing of climate, three degrees above the pole turns upside down all of the jurisprudence […] Lovely justice that a river delimitates! Truth before the Pyrenees, fallacy beyond.)
Judgement n°K3/21, October 7, 2021.
 See for instance Conseil d’Etat Ass, April 21, 2021, “French Data Network”, n°393099.
 See C-216/18, July 25, 2018, “LM”; C-619/18, June 24, 2019, « Commission v/ Poland »; C-192/18, November 5, 2019, « Commission v/ Poland »; C-824/18, March 2, 2021, “A.B. and Others”.
 Ursula Von der Leyen, State of the Union Address, September 15, 2021.
 Article F of the Treaty on the European Union: « The Union is funded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to Member States ».
 Article 10 § 2 : « Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens ».
 Sabine Saurugger, Théories et concepts de l’intégration européenne, Presses de Sciences Po, 2009.
 François Foret, Oriane Calligaro (eds), “European values”. Challenges and opportunities for EU governance, London, Routledge, 2018.
 R. 2020/2092 on a general regime of conditionality for the protection of the Union budget.
 COM 2020/790 on the European Democracy action plan, December 2, 2020.
 Clothilde Goujard, Mark Scott, Big Tech to be forced to hand over data on political ads, Politico, https://www.politico.eu/article/facebook-google-twitter-european-commission-political-ads/, October 11, 2021.
 Koen Lenaerts, Making the EU Charter a reality for all, interview, November 12, 2019.
 Païvi Johanna Neuvonen, « A Revised Democratic Critique of EU (Citizenship) Law: From Relative Homogeneity to Political Judgment », German Law Journal 21(5), 2020.
 Karl Popper, The open society and its enemies, 1945.
 Giacomo Tagiuri, “Can Supranational Law Enhance Democracy?”, European Journal of International Law 32(1), 2021.
 Eline De Ridder, ‘Democratic Conditionality in the Eastern Enlargement: Ambitious Window Dressing’, 16, European Foreign Affairs Review, Issue 5, pp. 589-605, https://kluwerlawonline-com.acces-distant.sciencespo.fr/JournalArticle/European+Foreign+Affairs+Review/16.5/EERR2011040, 2011.
 Based on the provisions of article 6 § 1 granting the right to a fair, reasonably quick, and public trial by an independent and impartial judiciary.
 See for instance C-224/01, « Köbler v/ Austria », 2003; C-416/17, « Commission v/ France », 2018.
 Roeben Volker, « Judicial Protection as the Meta Norm in the EU Judicial Architecture », Hague Journal on the Rule of Law 12(1), 2020.
 C-518/07, March 9, 2010.
 C-216/18, July 25, 2018.
 C-405/15, April 5, 2016, « Aranyosi et Caldararu ».
 C-619/18, June 24, 2019, « Commission v/ Poland » ; C-192/18, November 5, 2019, , « Commission v/ Poland » ; C-824/18, March 2, 2021, « A.B. and Others ».
 C-64/16, February 27, 2019. Judges then scrutinized budgetary restrictions imposed on the Portuguese judiciary.
 C-824/18, March 2, 2021.
 Guy Canivet, « Indépendance, vous avez dit indépendance ? Question sur une valeur essentielle de la justice », Pouvoirs, n°178, 2021.
 C-49/18, February 7, 2019.
 Chantal Arens, Speech given at the colloquium of the Conseil Supérieur de la Magistrature, « Responsibility and independence of magistrates », March 12, 2021.
 Assemblée Nationale, Rapport fait au nom de la commission d’enquête sur les obstacles à l’indépendance du pouvoir judiciaire, September 2020.
 Hans Kundnani, « EU’s two faced values », Politico, https://www.politico.eu/article/eu-two-faced-values-rule-of-law/, April 22, 2019.