by Nina Półtorak
Professor of European Union law at the Jagiellonian University in Krakow, judge at the General Court of the European Union. All the opinions expressed are strictly personal.
Many debates discuss the rule of law as one of the most important current challenges of the EU and its Member States. In the context of these discussions, it is worth to shed light on the role of law and judges or other lawyers in the EU legal system. This contribution tries to answer the question as to what could and should be the role of law and the legal community in times of questioning the basic values of EU integration. It is argued that this role is, at least partially, defined by lawyers themselves and that only if they take a proactive and united stand, which they presented throughout the history of EU integration, the law can still prevail within the EU. Thus, the shape and future of European integration depends on today’s attitude in defending the values of the EU.
The idea of ending wars, which are an absolute denial of lawfulness and the rule of law, was at the origin of European integration both within the Paneuropean movement after the First World War and the Schuman Declaration after the Second one. Its goal was to break the cycle of bloody events in history through cooperation, solidarity, shared values and the rule of law. What emerged from this idea is the EU as the most important and far-reaching political, social and legal project in the history of Europe. Despite many challenges and crises that the EU has undergone during its history, it is still doing relatively well in the views of its citizens. In 2020, during the pandemic, 60% of EU citizens were optimistic about the future of the EU. People still have more trust in the EU (43%) than in the national governments and parliaments (40% and 36% respectively). More than half (53%) of EU citizens are satisfied with the way democracy works in the EU; 40% have a positive image of the EU and another 40% a neutral one (Standard Eurobarometer, Summer 2020). Nevertheless, while 89% of EU citizens consider it essential or important that all Member States respect the values of the EU, more than half of them do not feel sufficiently well informed about these values and more than 80% say that the situation in their country in respect to various aspects of the rule of law needs some improvements (Special Eurobarometer, 2019).
As many modern democratic systems, the EU faces a global crisis of values and identities, of trust in authorities and political or social elites. This crisis manifests itself in many deficiencies and challenges such as undermining basic values; consequences of social injustice, inequality and of economic crises; political and legal consequences of new technologies; accountability of EU institutions; or external relations. Together with the old world order, the EU is undergoing a process of transformation, which can bring desirable changes, however it may only be possible if it preserves and protects its basic values. Now, a question arises: can the law effectively protect these common values? In the history of Europe, the law has failed too many times when confronted with power and force. Sometimes it was even taken in the service of lawlessness and injustice. History also teaches us that there have always been lawyers either outright ready to serve the power against the law or, at best, unresponsive to attacks on fundamental legal values.
It’s easy if you try – is there a role for law and lawyers in the EU integration?
What is therefore the role of law and lawyers in this transformation and in overcoming the present challenges of the EU integration? Here we may turn again to the history of European integration, which shows that the role of law and lawyers was much more significant than foreseen initially by politicians and other actors. In the EU as the union of law, the law carries and implements the idea of integration, but it is not its only function. The law may be ahead of political integration and may serve integration by filling its gaps and creating ideas. In this respect, the Court of Justice has played a special role. Confronted with the absence of the constitutional rules in the founding Treaties, the CJEU had to identify the values, which were inherent to this legal system. Already at the beginning of the 1960s, the CJEU formulated the doctrines essential for the functioning of Community law and its relation to national and international law, i.e. direct effect and primacy over national law. Furthermore, it declared the founding Treaties a constitutional charter and recognised the rule of law as well as human rights as principles of EU law. The CJEU also stated the obligation to ensure the effectiveness of EU law and effective legal protection; it interpreted the provisions on the freedoms of movement in a way that gave private entities a number of rights, and recognized EU citizenship as the basic status of nationals of the Member States.
These decisions were the essential elements of identifying the legal values of the EU and the constitutionalization of the EU system. Obviously, this process has not been taking place in an ivory tower, it has been a result of historical conditions, persisting legal and political pro-constitutional and pro-integration tendencies supported and promoted by many actors of the integration process. For example, if we look at the origin of the milestone judgments of the CJEU such as van Gend & Loos or Costa v. ENEL, we may see that the representatives of the European Commission advocated for such an interpretation of the Treaties that would allow their direct effect towards the individuals and full effectiveness in law of the Member States. We can also notice innovative and progressive argumentations of national judges and lawyers representing the parties only a few years after the entry into force of the Treaties of Rome. Already then, national judges were capable of questioning the established rules of the national law, which did not respect EU values or principles. In this respect, it seems particularly important that it led to redefining the relations between supreme and ordinary courts by giving the latter more autonomous power and competences to apply EU law as well as controlling national substantive and procedural rules in view of guaranteeing effective legal protection of the individuals. All this contributed to the creation of the procedural ius commune, which reinforced the role of law and judicial authority as well as to the creation of an effective legal system protecting rights of individuals.
Historically, the role of law and lawyers was therefore to construct and complete a new legal order in the light of values inherent to the EU system. Currently, we are at the stage of defending these values against various threats, and in need of redefining some of them in order to reflect the social and political changes, as well as constructing additional legal guarantees for their protection. What can be the role of law and lawyers in this context? We may see it through the example of the principle of rule of law. Facing one of the main threats to the rule of law, i.e. undermining the independence of the judiciary, national judges and lawyers have shown vigilance and solidarity.
The first case before the CJEU concerning such situation in Poland was not initiated by a Polish judge but an Irish one (C‑216/18 PPU, LM). This case gave the CJEU a possibility to recognise the threat to independence of the Polish judiciary for the first time and to formulate a two-step test of analysing the European Arrest Warrant issued by the Polish judges. Two years after this first judgment, the District Court from Amsterdam asked the CJEU whether, in the light of a worsening of the generalised deficiencies in the Polish justice system, it might reject the surrender requested by a Polish court without the need to examine both steps of this test (C‑354/20 PPU and C‑412/20 PPU, L. and P.).
Simultaneously, the preliminary reference of the Irish court encouraged the Polish ones, including the Supreme Court, to seek the interpretation of Article 19 TEU and Article 47 of the Charter in the context of the situation of the Polish judiciary. These questions resulted in the judgment where the CJEU recognised the independence of judges as the guarantee for the rule of law and confirmed Article 19 TUE and Article 47 of the Charter as the legal basis for reviewing the questions of such independence (C‑585/18, C‑624/18 and C‑625/18, A.K.). In this respect, CJEU was clearly inspired by its judgment from the beginning of 2018 given at the request of the Portuguese judges (C‑64/16, Associação Sindical dos Juízes Portugueses).
The Polish courts, which were previously rather reluctant to address the references for preliminary rulings, are currently the most active national courts in rising questions concerning the rule of law and independence of judiciary (out of 29 references introduced in 2020, 21 concerned this issue). The number of requests for preliminary rulings concerning other national systems and coming from other Members States is growing as well. Some of them might be considered as not admissible on the ground that they are hypothetical or of a general nature (as e.g. in C‑558/18 and C‑563/18 Miasto Łowicz or C‑256/19, S.A.D. Maler und Anstreicher OG, see also opinion of AG Bobek in C‑83/19, C‑127/19 and C‑195/19, Asociaţia ‘Forumul Judecătorilor din România, p. 212-225). Nevertheless, also in such cases, the CJEU may formulate indications about the standard of judicial independence as it did in the first judgment cited above in relation to the risk of disciplinary proceedings against the national judges submitting references for preliminary rulings. We may even state, that while for many years starting already from van Gend & Loos, the effectiveness of EU law has been the leitmotiv of the case law of the CJEU; now, after introducing the Charter of Fundamental Rights as a legally binding instrument on the one hand and observing growing risks for the protection of the EU values on the other, the new leitmotiv would be the rule of law and respect for fundamental rights.
Protecting the EU values is the task of all EU institutions, but primarily of the European Commission as the guardian of the Treaties. In reaction to the risk of the Polish judiciary losing its independence, the Commission firstly initiated a rather straightforward case. It was an infringement procedure concerning a different retirement age for men and women judges as well as the power of the Minister of Justice to decide whether to authorise judges to stay in the office beyond the new retirement age (C‑192/18, Commission v. Poland). Later, the European Commission opened another infringement procedure against Poland concerning the rule of irremovability of judges and judicial independence, which was undermined by lowering the retirement age of Supreme Court judges. As a result, the CJEU decided that Poland has failed to fulfil its obligations under Article 19(1) TEU (C‑619/18, Commission v. Poland) and applied, at the request of the Commission, the interim measures suspending the execution of the reform of the retirement age (order in C-619/18 R). The following infringement procedure initiated by the European Commission, which concerned the disciplinary procedures against the judges, resulted in another order of the CJEU suspending any disciplinary procedures before the Disciplinary Chamber of the Supreme Court (C‑791/19 R, Commission v. Poland). In September 2020, the Commission sent another reasoned opinion to the Polish government claiming that new law on the judiciary undermined the independence of judges and was incompatible with the primacy of EU law because it prevented the courts from directly applying EU law and addressing references for preliminary rulings. A more radical action by the European Commission was a reasoned proposal asking the Council to determine a clear risk of a serious breach of the rule of law in Poland in accordance with Article 7(1) TEU, which turned out to be ineffective. At present, the Commission seems to restrict its legal actions to the infringement procedure and the soft law.
We must not forget about the other actors who actively intervene in situations of threats to the rule of law in the Member States, such as European and international judicial and legal associations, the Venice Commission, Member States intervening in the procedure before the CJEU or national Ombudspersons, but most of all individual judges and lawyers showing a profound respect for the rule of law in their everyday work and exposing themselves to professional and personal consequences; as well as many citizens supporting their efforts.
Obviously, we may not claim that the actions of the national courts, EU institutions and case law of CJEU resulted in stopping or remedying the infringements of the rule of law. An example is the judgment of the CJEU (C-286/12, Commission v. Hungary), which did not bring any real results as the contested reform of the retirement age of the Hungarian judges has already been completed. There are also serious doubts whether the interim measures imposed by the CJEU concerning the Disciplinary Chamber of the Polish Supreme Court are complied with. However, the judicial actions and active attitude of all legal actors allowed developing the case law in a way that permits the CJEU to control the independence of the judiciary in all Member States. They also resulted in suspending the most controversial reforms of the Supreme Court in Poland. They inspired other actions such as Commission’s European Rule of Law Mechanism or European Council’s support for regime of conditionality to protect the EU budget in cases of generalized deficiencies of the rule of law in a Member State.
Of course, one might argue that these actions are not sufficient. Nevertheless, what would be the state of play without them? Here we may only speculate, but there are already several examples of the implementation of controversial changes to the national judiciaries despite strong contestation on national levels. Having said that, it is difficult to consider that the EU legal community used all legal instruments to their full potential in order to protect the rule of law in the EU. It is evident that EU and national courts cannot solve the political and legal problems for other actors nor substitute EU institutions in fulfilling their tasks.
You may say I’m a dreamer – plus ius quam vis
The EU as we know today would not be possible without the contribution of judges and other lawyers. What would be the shape of European integration without the innovative question asked by the Tariefcommissie just four years after the Treaty of Rome entered into force? Would there be a further story of primacy, effective legal protection, rule of law or fundamental rights as the general principles of EU law without the answer provided by the CJEU to that question (adopted only by a majority of one vote) and without many subsequent decisions of the CJEU initiated by national judges and supported by the Commission? This active and innovative cooperation between national and EU lawyers was one of the important elements of constructing and shaping legal integration.
Nowadays, we face different, more demanding challenges of guaranteeing and protecting the constitutional system of the EU. Effectiveness, direct effect and primacy cannot function in axiological vain. If they do, they can serve antidemocratic or unjust law. The effective legal protection should not be treated as another tool of implementation of the law in practice but as one of the crucial guarantees of the rights of individuals in their relations with public authorities or powerful stakeholders. The defence of the rule of law is not limited to respect for law, it primarily serves the EU values, puts fundamental rights at the centre of law and protects the most disadvantaged and powerless against the powerful and privileged.
In view of these challenges, we must ask ourselves: can the law prevail? Now, we certainly have better conditions than ever. We live within a supranational organization based on common values, we have networks and legal associations, as well as institutions established to defend and protect fundamental values and rights. We may also rely on encouraging examples of integration trough law and common institutional experience and memory. What will emerge from the current crisis depends on our attitude and response, both as lawyers and as citizens. Again, lawyers have to show that the EU is the union of people of Europe based on common values, which protects and guarantees their rights. They have to show in their everyday work at the national level or at the EU institutions, that as in van Gend & Loos “the vigilance of individuals concerned to protect their rights” is still one of the main driving forces behind the development of an effective EU legal system. It does not seem to be a good time to question the primacy of EU law, to debate which the court of the last word is or hesitate to introduce the infringement procedures when the decisions of the CJEU are not respected and fundamental rights of EU citizens violated by states’ authorities. The responsibility of legal elites towards society and justice demands a united and committed stance. By explaining the role of law and leading by example, lawyers can convince EU citizens that the rule of law and legal values are not abstract or irrelevant notions. Only then there is a chance that law can be stronger than power.
 All the quotations in the titles are from “Imagine” by John Lennon.