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The Rule of Law and the Future of Europe

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

In questo contributo, l’A. illustra le caratteristiche delle violazioni sistemiche dello Stato di diritto come epitome della crisi odierna.

L’A. ritiene che superare queste minacce sia una condizione fondamentale per il buon funzionamento del meccanismo dell’Unione europea e forse addirittura per la sopravvivenza della stessa Unione.

Dopo aver descritto i sintomi della crisi dello Stato di diritto, l’A. richiama l’impor­tan­za di questo stesso principio per l’UE, identificandolo come un principio guida e un valore fondamentale dell’intero ordinamento.

Un crollo dello Stato di diritto in uno qualsiasi degli Stati membri equivarrebbe ad una lesione a tutto la spazio giuridico che ruota attorno all’Unione europea.

L’A., dunque, tenta di dimostrare che le carenze sistemiche che affliggono il principio dello Stato di diritto si riflettono sia in senso orizzontale, in quanto influiscono sui rapporti tra gli Stati membri, sia in senso verticale, in quanto distorcono il meccanismo di cooperazione tra le istituzioni dell’UE e gli Stati membri.

L’A., infine, richiama l’attenzione alla necessità di una vigilanza di carattere eccezio­nale e tenta di indicare le modalità per affrontare questa grande sfida, considerando che l’unica via che l’Unione può seguire per difendere i propri valori passa, in via prioritaria, dalla tutela dello Stato di diritto negli Stati membri.

PAROLE CHIAVE: Unione europea - Stato di diritto - violazioni sistematiche - valori UE

In this essay, Judge Safjan characterizes systemic threats to the rule of law as the epitome of today’s crises. The author considers that overcoming these threats is a precondition for the functioning of EU mechanisms and, perhaps, for the very survival of the European Union.

After describing the symptoms of a rule of law crisis, the author recalls the importance of the rule of law principle for the EU, identifying it as a guiding and fundamental value of its legal system.

A collapse of the rule of law in any one of the Member States would be tantamount to a rupture occurring in the legal space across the European Union. Thus, Judge Safjan tries to demonstrate that systemic deficiencies affecting the functioning of the rule of law pullulate both horizontally, since they affect relations between the Member States, and vertically, distorting the mechanisms of co-operation between the EU institutions and the member states.

Finally, Judge Safjan calls for extraordinary vigilance and tries to show ways to resolve this major challenge, considering that the only way for the Union to defend its values is, first, to defend the rule of law in the Member States.


European Union – Rule of Law - Systemic Threats – EU Values


I. Introductory Remarks - II. Symptoms of a rule of law crisis - III. The European Union as a Union of Law - IV. Ramifications of the rule of law crisis - V. Can the Union defend its values? - NOTE

I. Introductory Remarks

There are two European narratives. One talks about a vision of Europe as an area of welfare, social peace and prosperity. The other one emphasizes drivers of crisis and gradual destruction of the idea of European integration. The former vision (some might say, utopian) presents the EU as the world’s biggest region with sustainable wealth, prime quality of life, the highest respect for fundamental rights, the biggest GDP, free of war and conflict, developing the most effective mechanisms of international co-operation; an area to which millions of people flee from around the world, risking their lives to reach the dream “garden of Eden”. The latter vision, on the contrary, is one of downfall and threats: rising tensions among the member states, erosion of their shared values and the rule of law, slow economic growth, symptoms of degeneration of European integration, such as Brexit, unsolved social problems, spreading poverty, shrinking opportunities for the young generation, no coherent asylum and migration policy. Neither vision is a complete reflection of the European reality; yet, neither vision lies. This is the big European paradox. Europe is Janus-faced; its picture changes depending on the way one looks, and depending on the knowledge and intentions of the on-looker. One thing is certain: notwithstanding current opinions about the European reality, the facade of the common edifice has cracked. The cracks may not spell disaster but they come as a warning sign, prompting a search for remedies necessary to stop adverse developments which are significantly impacting our shared destiny. On the one hand, what we need is a good and insightful assessment of the status quo and the root cause of the threats; on the other hand, we need to join our forces and define positive goals we want to achieve. We do not need a utopian vision of a perfect world: there is no perfect world. We have to restore the European momentum and spur its further growth, which is sadly missing now even though it sparked development and hope for decades. I am not a politician and I do not aspire to present a political program for a better Europe, a European recovery agenda. However, as a lawyer and a judge, I would like to raise an important aspect of today’s crisis and threats: that affecting the rule of law. The main message of my presentation is that undermining, eliminating and distorting the rule of law in the European Union is one of the key [continua ..]

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II. Symptoms of a rule of law crisis

What are those threats? Let us enumerate them for the sake of clarity. Rather than offering a detailed presentation, I will venture to provide a general outline based on the experience of the past few years in some of the EU Member States. First, the very role of law is being challenged as an instrument that can impose order on relations and structures of public authorities, relations between authorities and individuals, and relations between the member states and the European institutions. The rule of law is being challenged by evoking values of a different nature, posited as “superior” or at least “equivalent,” such as the will of the people and the national interest, the primacy of justice over the law, the principle of direct democratic legitimacy of all decision-making bodies and institutions, and the imperative that their actions be effective. Therefore, where the rule of law is being challenged, the primacy of law over the hierarchies of power is rejected and a different social order is put forth, interrupting the course of evolution of the European civilisation. Second, the very mechanisms of the democratic system (which is a guarantee of the rule of law) are being undermined by reducing it to the principle of democratic legitimacy of the ruling majority. This constellation gradually eliminates important components that are at the very heart of today’s democracy: the principles of the separation of powers and respect for fundamental rights (even against the will of a democratically elected parliament). Such a shift to a new political and legal system is often described as the emergence of an illiberal democracy. Third, in this context, some member states are explicitly challenging the role of the independent judiciary. The meta-right to effective legal protection, that constitutes a necessary (sine qua non) condition for the protection of all other (fundamental) rights. The independence of courts is being challenged in many different ways, through more or less direct interference by the political power. This is so because there is no single benchmark of judicial independence; it is determined by many variables linked to the constitutional tradition and established constitutional practice, the resilience and permanence of the democratic practice in the member state, the legal awareness of individuals, and the historical track record in this field. Those recent adverse developments have been called «more of an [continua ..]

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III. The European Union as a Union of Law

It cannot be stressed enough that Europe is a “Union of law”. The rule of law has been the paradigm of the European model and of the structure of the common Europe since its inception [5]. As a leading European politician rightly said, «The rule of law is not optional in the European Union. It is a must. [6]». In the first place, it is important to remember the position that the value of the rule of law has in the legal system of the European Union. Article 2 TEU mentions the rule of law alongside the fundamental values of the Union: respect for human dignity, freedom, democracy, equality, human rights. The importance of the values referred to in Article 2, including the rule of law, sets the direction of the interpretation and application of law in all fields covered by Union law. Furthermore, it is relevant to the interpretation and application of the Charter of Fundamental Rights because the substance of any fundamental right cannot be understood in violation of the values listed in Article 2 TEU, which is pertinent to debates about re-establishment of the death penalty that are resurfacing in some member states [7]. In its opinion of 18th December 2014 on the accession of the EU to the European Convention on Human Rights (Opinion 2/13), with reference to Article 2 TEU, the Court of Justice declared: «each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected» (paragraph 168). It should also be noted that Article 49 TEU makes EU membership conditional on respecting the values listed in Article 2, similar to the 1993 Copenhagen criteria [8]. The Communication from the Commission to the European Parliament and the Council “A new EU Framework to strengthen the Rule of Law” [9] lists six key principles comprised by the rule of law (legality, legal certainty, prohibition of arbitrariness of the executive powers, independent and impartial courts, effective judicial review including respect for fundamental rights; and equality before the law). The case law of the Court of Justice frequently evokes and clarifies the importance of the rule of law [continua ..]

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IV. Ramifications of the rule of law crisis

The ramifications of the current threats to the rule of law should not be underestimated. A collapse of the rule of law in any member state is tantamount to a rupture in the legal space of the European Union. The EU is a system of interconnected vessels; if legal protection is weakened in any member state, it affects the entire EU. Let us have a look at the key ramifications of the crisis of the rule of law in some member states. The main consequence is that the principle of mutual trust is undermined or even contested; that principle is the best expression of the relations between the member states and a precondition of their collaboration. The case law of the European Court of Justice has amply emphasised the fundamental importance of that principle, for instance, in Opinion 2/13: «the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained». It is therefore obvious that there can be no effective system of mutual recognition and execution of judgments without trust in the guarantees of independence of the judiciary in other members states. There can be no dialogue between national courts and the Court of Justice based on the preliminary ruling procedure either, for only independent Courts may interact with the CJEU on the basis of Article 267 TFEU. As a result of the disintegration of legal protection in the Schengen Area major hurdles may arise in the implementation of the principle enshrined in Article 19 TEU, which expressly provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. A crisis of the rule of law will weaken or even paralyse the freedoms guaranteed by the Treaties, discouraging companies and employees and eroding their trust in the legal mechanisms of a member state in which they wish to establish themselves. Last but not least, the EU budget may be affected if funding allocated to structural (development) projects is distorted [20]. It has thus been rightly argued that the current crisis in Europe or its parts is becoming systemic and that a crisis in one or more member states is always a common crisis as it affects the entire legal space of the Union [21]. However, a systemic crisis of the rule of law must be clearly and precisely identified. In a systemic crisis, singular corrections of mechanisms [continua ..]

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V. Can the Union defend its values?

The experience of the past few years clearly suggests that a crisis of the rule of law can happen everywhere and that a well-organised constitutional toolbox is not a sufficient guarantee of protection against adverse trends (vectors) in that direction. Those EU member states that are now at risk of a systemic crisis of the rule of law were among the best pupils, and their systems were built on liberal concepts of a democratic state ruled by law. It could be that the Union as a whole may need to take steps necessary to defend its values. Extraordinary situations call for extraordinary measures. The proposals under discussion include endowing the Charter of Fundamental Rights with more effect and impact [31] so it can be evoked directly, rather than through the intermediation of European law, to address violations of fundamental rights by the laws of a member state [32]. After all, the values enshrined in Article 2 TEU are identical to the fundamental rights guaranteed by the Charter. Suggestions have also been made to revisit the concept where the fundamental status of citizens of the member states is the European citizenship [33]. In the current debate on the future of the European Union, this proposal may seem too far-fetched and could be seen as an unrealistic vision. However, to combine the status of a Union citizen with a full effective protection of fundamental rights in all fields of individual activity, including its position in the legal systems of the member states, appears  to be a natural and inevitable consequence of the on-going integration process and of the concept of effective legal protection derived directly from the rule of law. This follows from the idea  that the EU is not only a union of law but also a community of citizens [34]. It may also be argued that Union citizens deprived of the protection of fundamental rights due to deficiencies of the judicial system (in the absence of independent and impartial courts and tribunals) or other systemic deficiencies may ask for protection and raise claims against the national system directly based on the values laid down in the Treaty and in the Charter of Fundamental Rights. In particular, in Minister for Justice and Equality [35] and  Aranyosi and Caldararu [36], the protection of the right to a trial by an independent court on the one hand and the dignity of prisoners on the other hand, as enshrined in [continua ..]

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