In courts we trust, or should we? Judicial independence as the precondition for the effectiveness of EU law

• Published date: 01 January 2021
• Author: Petra Bárd
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12425

KALEIDOSCOPE: ON THE INDEPENDENCE

OF THE JUDICIARY

In courts we trust, or should we? Judicial

independence as the precondition for the

effectiveness of EU law

Petra Bárd

*

Abstract

The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of

law problems in the Member States. This shows the double nature of the EU's separation of powers

problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmen-

tal powers, there is a risk of the crumbling of separation of powers at the EU level, too, where insti-

tutions fail to adequately address rule of law violations. Against the EU institutions' lack of forceful

action towards rule of law backsliding, domestic courts try to protect judicial independence increas-

ingly via preliminary references. Also, they attempt preventing the proliferation of the consequences

of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This

article explores to what extent preliminary rulings can make up for the failure to use adequate EU

tools of rule of law enforcement.

1|RULE OF LAW DECLINE IN THE EU

1.1 |Rule of law decline in the national setting is an EU matter

On the question as to whether there was such a thing as a ‘European tradition’, Winfried Hassemer, then vice

president of the German Federal Constitutional Court, contended that Europeanness had an autonomous mean-

ing: it is envisaged as ‘a community of values (“Wertegemeinschaft”), representative of a certain tradition, which

has created—though amongst pain and failures—patterns for a humane and at the same time viable world

* Petra Bárd, Associate Professor, Eötvös Loránd University, Faculty of Law; Visiting Professor and Researcher, Central European University; Fernand

Braudel Fellow, European University Institute, bardp@ceu.edu. This work has been prepared under the auspices of the EU's Horizon 2020 research and

innovation programme as part of the RECONNECT project under Grant Agreement no. 770142. The author is grateful to Professor Laurent Pech and

Professor Kim Lane Scheppele for their wise suggestions on an earlier draft, as well as ELJ editor-in-chief Karine Caunes and ELJ reviewers for their

insightful comments. The usual disclaimer applies.

Received: 25 April 2022 Accepted: 25 April 2022

DOI: 10.1111/eulj.12425

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2022 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2021;27:185–210. wileyonlinelibrary.com/journal/eulj 185

order’.

1

The rule of law has a special role for the European project, advancing a clear idea of constitutionalism

taming nationalism by reducing the risk of another European war and spreading the model of liberal democracy

to countries with an authoritarian past. In the words of Will Kymlicka, ‘[f]ar from transcending liberal nation-

hood, the EU is universalising it, reordering Europe in its image’.

2

The rule of law is overarching, inherent in all the articles of the European Convention on Human Rights (ECHR)

and the case-law of the European Court of Human Rights (ECtHR), as Robert Spano, president of the Strasbourg

court, eloquently demonstrates.

3

Since the decision in Golder v. The United Kingdom, the rule of law belongs to the

Council of Europe's common spiritual heritage.

4

In the words of Koen Lenaerts, president of the Court of Justice of

the European Union (CJEU), ‘integration through the rule of law’defines what the European Union today stands

for.

5

The rule of law in the EU setting has the meaning defined for it by the ECHR

6

and has been recognised by the

CJEU since the seminal Les Verts case,

7

in which the Court ruled that neither EU institutions nor the Member States

are above the law.

8

Together with other overarching values, such as democracy and fundamental rights, the rule of

law is embedded today in Article 2 of the Treaty on European Union (TEU). Member States freely acceding to the

EU voluntarily agreed to adhere to Article 2 TEU

9

and to promote Article 2 values in line with Article 3(1) TEU.

‘European integration can only take place when both the EU institutions and the Member States respect the “rules

of the game”’,

10

i.e. the EU can continue to be an entity based on the rule of law only if its constituent parts are

based on the rule of law as well. Furthermore, in line with the principle of sincere cooperation incorporated into Arti-

cle 4(3) TEU, the Member States must not hinder, but ought to assist EU institutions when promoting Article 2 TEU

values.

11

Despite the above Treaty obligations, values such as democracy, the rule of law and fundamental rights that the

Member States and the European Union are supposed to share—the very same values that are prerequisites for EU

accession—are violated in several Member States. The EU even harbours countries in which systemic violations of

the rule of law are part of the system of governance.

12

Unlike other types of infringements of a national constitution

or international law provisions, these systemic rule of law violations are intentionally designed to serve particularistic

interests of the ruling majority and authorise arbitrary decisions with the effect of turning the rule of law into rule by

law.

13

To take some of the more salient examples of rule of law backsliding, when looking over a five-year period, the

World Justice Project's Rule of Law Index showed that Hungary's and Poland's respect for the rule of law has

declined more than in any other country in the region of EU/EFTA/North-America,

14

whereas according to the Vari-

eties of Democracy (V-Dem), at least one EU Member State is not a democracy any longer,

15

which also corresponds

1

W. Hassemer, ‘Strafrecht in einem europäischen Verfassungsvertrag’, (2004) 116 Zeitschrift für die gesamte Strafrechtswissenschaft, 308.

2

W. Kymlicka,‘Liberal Nationalismand CosmopolitanJustice’, in S. Benhabib(ed.), Another Cosmopolitanism (Oxford UniversityPress, 2006), 128,134–135.

3

R. Spano, ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the Judiciary’,

(2020) 26 European Law Journal, 48.

4

Golder v. The United Kingdom, Application no. 4451/70, 21 February 1975.

5

K. Lenaerts, ‘New Horizons for the Rule of Law within the EU’, (2020) 20 German Law Journal, 29.

6

‘Some may question whether this framework of values within the EU is different under the European Convention. The answer is emphatically no. […]itis

clear that there is a symmetry of values between the two systems. This symmetry is an important conceptual building-block common to both systems

which facilitates the necessary judicial dialogue between the two Courts.’R. Spano, see n. 3.

7

Case C-294/83, Les Verts, EU:C:1986:166.

8

K. Lenaerts, ‘Upholding the Rule of Law within the EU’, speech delivered at the RECONNECT Annual conference, Brussels, 5 July 2019.

9

Case C-621/18, Wightman and Others, ECLI:EU:C:2018:999, §63.

10

W. Hassemer, see n. 1, 308.

11

C. Hillion, ‘Overseeing the Rule of Law in the EU’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge

University Press, 2016), 59.

12

In such systems, ‘elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture

internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’. L. Pech and

K.L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, (2017) 19 Cambridge Yearbook of European Legal Studies,3,8.

13

For a different view, see J. Waldron, ‘Rule by Law: A Much Maligned Preposition’, (2019) NYU School of Law, Public Law Research Paper, 1, 20.

14

https://worldjusticeproject.org/rule-of-law-index/global/2020.

15

https://www.v-dem.net/en/.

186 B´

ARD