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On Symmetry: in Search of an appropriate Response to the Crisis of the Democratic State *

Marek Safjan, Giudice della Corte di giustizia dell’Unione europea, Lussemburgo

La distruzione intenzionale e progressiva del meccanismo di “cecks and balance” da parte di alcuni Stati membri dell’UE non solo si riflette negativamente sulle istituzioni nazionali ma sta anche minando il processo d’integrazione europeo nella sua interezza. Nella prima parte dell’articolo saranno trattati i diversi elementi che spiegano il progressivo scivolamento di queste democrazie verso regimi più autoritari. Poi, l’autore metterà in evidenza l’importanza di distinguere le principali differenze tra le “crisi sistemiche” con cui si è confrontata l’UE dalle crisi dello Stato di diritto la cui reale esistenza si presta ad incidere strutturalmente e profondamente sull’unione di diritto sulla quale l’UE è costruita. Così, la necessità di assicurare un potere giudiziario indipendente ed imparziale dà valore alla regola dello stato di diritto sancita all’art. 2 TEU, quale interpretata dalla Corte di Giustizia. In questa prospettiva, l’indipendenza del potere giudiziario è una parte inerente dell’identità costituzionale europea, contro la quale uno Stato membro non può unilateralmente opporsi. Il suo indebolimento affetterebbe il principio della mutua fiducia sul quale l’integrazione europea si fonda e che è di importanza fondamentale per assicurare il diritto del cittadino europeo ad avere un rimedio effettivo, descritto come un “metadiritto” che assicura l’accesso ai diritti fondamentali. Alla luce di queste considerazioni, l’autore si chiede quale rilievo abbia l’approccio classico dei “fattori di collegamento”, che unisce i diritti iscritti nella Carta allo status di cittadino europeo di cui all’art. 20 TFEU. Questo cambio di paradigma, che a prima vista può sembrare forzato, potrebbe essere giustificato dalla necessità di dare una risposta più strutturale alla crisi dello stato di diritto cui i rimedi giurisdizionali dell’UE non sono in grado di far fronte. Questo nuovo approccio potrebbe anche favorire un’Unione più umana, protettiva e aperta ai suoi cittadini.

PAROLE CHIAVE: rule of law - Corte Polonia rule of law corte suprema - stato di diritto - cittadinanza europea - fiducia reciproca - identitÓ costituzionale europea

The intentional and progressive destructions of checks and balance mechanisms by certain Member States of the European Union are negatively affecting national institutions but are also undermining the European integration process as a whole. In the first part of this article, the different elements explaining the progressive shift of these democracies towards more authoritarian regimes will be addressed. Further, the author highlighted the importance to distinguish the fundamental differences between the “systemic crises” that the European Union has been confronted with, from this crisis of the rule of law, whose very existence is likely to structurally and profoundly affect the Union of law on which the European Union is built. Thus, the necessity to ensure an independent and impartial judiciary materializes the value of the rule of law stated in article 2 TEU and as interpreted by the European Court of Justice. In this perspective, the independence of the judiciary is an intrinsic part of the European constitutional identity, against which the Member States cannot unilaterally oppose. Its undermining would affect the principle of mutual trust on which European integration is based and which is of fundamental importance to guaranteeing European citizens’ right to an effective remedy, described as a “meta right” securing access to European fundamental rights. In light of these considerations, the author questioned the relevance of classical approach to the “connecting factors” by linking the rights enshrined in the European Charter of Fundamental Rights to the European citizenship status of article 20 TFEU. This change of paradigm, which may seem far-fetched at first sight, could be justified by the need to provide a more structural response to the rule of law crisis that the current European Union’s judicial remedies were not able to tackle so far. This new approach would also allow for a more humane, protective and open to its citizens Union.


I. Progressive steps towards a systemic crisis of the rule of law - II. Is this a crisis of the European Union? - III. Rule of law: national or EU issue? - IV. In search of emergency measures - NOTE

I. Progressive steps towards a systemic crisis of the rule of law

It may be obvious that a crisis of the democratic state under the rule of law is not the same as the defectiveness of one or more of its legal mechanisms, but necessarily concerns the whole system, in all its complexity and interconnectedness. This complexity stems from the interplay between the law and the context in which the normative system operates, with all its characteristics, imponderables and subtleties, even including certain phenomena belonging to social psychology, such as the attitude of social groups, the general awareness of, and subjective choices made by individuals. Moreover, a legal system is always embedded in traditions, be they purely historical, legal or constitutional. Finally, in an integrated, multi-state legal order based on shared values, it is impossible to view one national legal system in isolation. This essay argues that the rule of law crisis to which several EU Member States have fallen prey over the last years fundamentally differs from any other systemic crisis experienced in the history of the EU and undermines its mechanisms and axiological foundations. It is thus a matter for EU law to fight this crisis in the interest of its citizens. The question to be asked and answered is how a crisis in a system that has been built rationally, according to modern rules of liberal constitutional democracy, is possible. How can such a model system transform into authoritarianism? An identification of the features of systemic crisis that have become more and more visible in several EU Member States may provide some guidance and the Polish experience of deviating from the system of liberal democracy based on the rule of law is a very instructive example [1]. First of all, there is the paralysis of the “Constitutional fuse” which, in a state governed by the rule of law, is the mechanism of constitutional review, a strong counterweight to the simple regime of majority rule [2]. This is usually accompanied by the progressive deformation of legislative procedures in Parliament [3]. As a result, the latter slowly becomes the executor of the political will of the ruling majority. Finally, either the common courts or the Supreme Court or both are overpowered. In result, the principle of the separation of powers is annihilated and all branches of government unified in the hands of the ruling party. Examples from recent years moreover show that this is accompanied by taking full control of the army, the police [continua ..]

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II. Is this a crisis of the European Union?

The alleged crisis of the European Union has been under discussion for a long time and is notoriously depicted in speeches and conferences. It is hard to deny that the European Union is struggling with adversity and with what could indeed be described as a crisis. Recent years have brought dramatic problems such as the mass influx of refugees, which overwhelmed Greece, Italy and Spain, the very real threat of collapse of the Eurozone, accompanied by a dramatic economic turbulence in many countries in the south of the EU, the withdrawal of the United Kingdom, the economic recession caused by the Covid-19 pandemic and, finally, the unprecedented tendency in the history of the EU to undermine the rule of law, which has led to the opening of the procedure under Article 7 of TFEU for the first time. At the same time the Union has shown its strength and determination by introducing imaginative remedial mechanisms and procedures, just as it did in recent months by creating an unprecedented fund to help revitalize the economies of EU countries, severely affected by the pandemic. As some people say – not without reason, in my opinion – this is a “Hamiltonian moment” in EU history, moving the integration process forward. Today, however, the question arises with full force as to whether the Union is prepared for what has happened in some of its newer Member States and has been described above as a systemic crisis. I am concerned that the degree of understanding of this phenomenon and its impact on the whole Union is rather minor and only slowly gaining ground. One may also sometimes get the impression that the narrative put forward by those in power in the affected countries, according to which the issue of the rule of law is a purely internal problem that does not fall within the competences of the EU, has exerted some influence on the attitude of European institutions. As regards, particularly, the terminology used in reference to different systemic crises, I deplore the absence of a clear distinction between the institutional crisis of the rule of law and other systemic crises in the Member States that the European Union has so far dealt with. However, such a distinction seems to be necessary to take into account that the collapse of the rule of law has a completely different nature and may thus have a different impact on the functioning of the Union as a whole [4]. Phenomena that have so far been described as a systemic crisis in [continua ..]

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III. Rule of law: national or EU issue?

European Union responses to the rule of law crisis are objected to with arguments to the effect that the model of division of power, the method of constitutional review, the organization and the procedures of the judicial authorities, including the rules on the appointment of judges, remain as such exclusively within the sphere of internal competences of the Member State and may not be examined under the powers conferred by the Treaties on the European Union [8]. Such arguments, however ignore the fact that a rule of law crisis manifesting itself in those spheres (in one or several Member States) affects the fundamental values and the legal space of the European Union as a whole. The concept of the rule of law is not defined by the EU Treaties, nor is any such definition included in the so-called Copenhagen criteria [9] on which the accession procedure of new Member States depends. The case-law of the CJEU using the concept of the rule of law has often referred to the European Union as a Union of law [10], in which all its structures, all procedures, acts and decisions are based on law and comply with it. It is not my goal to analyze the rule of law principle exhaustively, but it is worth noting that there are, within the scope of that principle, certain inalienable components, such as respect for the law in its hierarchical structure, taking into account the guarantees for fundamental rights, the principle of separation of powers and within it, comprehensive respect of the independence of the judiciary and the legal force of final judicial decisions. The existence of those inalienable components means that the concept of rule of law is not completely open and vague in the sense that it grants full discretion and freedom to determine the rule of law in the various Member States. To put it differently: the respect of inalienable, substantive components of the rule of law remains an absolute obligation in any model of legal system, irrespective of any differences that may exist between those models [11]. As Koen Lenaerts remarked, “Given that the EU of democracies, justice and law, independent national courts are important not only at the national, but also at the European level. I would go as far as to say that independent national judiciaries are co-substantial to the survival of the European integration project since that project has been built on the rule of law” [12]. It is thus rightly noted in the literature [continua ..]

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IV. In search of emergency measures

There is not doubt that an exceptional situation requires also exceptional, specific remedies which essentially differ from those which are applied in typical cases. Metaphorically speaking, if there’s a defect in the vehicle’s engine, changing a wheel will not allow the vehicle to continue to run. The punctual identification of the deficiencies of a specific regulation incorrectly implementing European law, even though that defect is subsequently remedied, will not heal the situation, since the corrected regulation remains integrated into a defective system, which is entirely burdened with the main defect, i.e. the lack of respect for the rule of law. That situation fits the metaphor used by Advocate General Bobek to illustrate the uselessness of specific instruments typically applied in the case of a systemic crisis : “looks a bit like a debate on what color to choose for the tea cozy and the dining set to be selected for one’s house, coupled with a passionate exchange about whether that tone exactly matches the color of curtains already selected for the dining room, while disregarding the fact that the roof leak , the doors and windows of the house are being removed, and cracks are appearing in the walls” [36]. Following that reasoning, it becomes obvious that first of all the reinforcement of the protection of fundamental rights of nationals of the Member State under crisis becomes imperative. That could be achieved, on the one hand, by a larger openness for the application of EU guarantees of fundamental rights and, on the other hand, by a closer cooperation of the national judiciary with the CJUE to help the former compensate, at least to some degree, a deficit of the domestic means of judicial protection. In that exceptional context one should ask whether it is indeed justified, in order to activate the protection of rights and freedoms guaranteed by the Charter, to seek necessarily for traditional and established “connecting factors” for the application of EU law. To require, in such exceptional cases, precise links justifying an application of the right to effective judicial protection of rights deriving from the EU may appear to be redundant and not to have the desired effect. Should it not be appropriate to refer to a broader, more creative, courageous interpretation of law that opens up opportunities for effective action in an “emergency situation” going far beyond the experience of [continua ..]

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