The rule of law, as a constitutional principle of the EU, is regularly assessed in light of the Court of Justice’s case law. This approach lacks the required depth as it fails to take into account that the EU rule of law is not merely a constitutional principle that can be referred to and applied in judicial proceedings. It may be more fruitful, in order to assess the meaning, scope and impact of the EU rule of law, to analyze its unique and shared features in light of the common traits identified in the preceding section. In doing so, one discovers that the EU rule of law is similarly a dominant organizational paradigm as regards EU constitutional arrangements, a multifaceted or umbrella legal principle with formal and substantive elements which lacks “full” justiciability. The EU rule of law also presents distinctive features. In other words, it has a broader scope of application than the one it normally has at the national level. Indeed, it is also used as a politico-legal benchmark with respect to current EU Member States and prospective ones and as a policy objective in relation to so-called third countries and other regional organizations. These distinctive features do not illustrate or derive from an alternative understanding of what the rule of law should entail at the supranational level. They rather reflect the EU’s original constitutional nature. As a supranational and “dynamic” organization theoretically open to all European countries who share the same values and whose main objectives are to promote peace and prosperity on the international plane, the EU has naturally additional uses for the rule of law.
Shared features
Reflecting most national constitutional experiences in Europe , the EU rule of law is first and foremost a posited legal principle with a foundational nature. The absence of any formal and precise definition of what the principle entails is also a typical feature and should not necessarily be criticized considering the “umbrella” character of the rule of law in all legal systems. Finally, the rule of law, in conformity with what national practices have taught us, has been reasonably relied on by the Court of Justice as an interpretative guide and as a source from which additional more specific legal standards may be derived, rather than as a rule of law in itself.
The Rule of Law as a Foundational Principle
By stipulating that the EU is “founded” on – and must not merely respect – the principles of liberty, democracy, respect for fundamental rights and the rule of law, Article 6(1) TEU makes clear that these are foundational or defining principles. To put it differently, this provision offers the overarching principles or values of political morality that “underlie and inform the purpose and character” of the EU’s politico-legal system as a whole. To that extent, it is fair to say that the EU founding Treaties have come to give “primary importance” to these principles. Furthermore, by explicitly recognizing the rule of law as a posited legal principle, Article 6(1) TEU is clearly reminiscent of the countries where the rule of law has long been enshrined in the national constitution. While there continues to be some confusion about this aspect, the Treaty reference to the rule of law does not mean that the EU is itself a sovereign state-like entity or pursues this ambition. While, in languages other than English, Article 6(1) TEU refers to the principle of a State founded on the rule of law, the reference to “State” can be explained by the historical circumstances which have presided over the birth and conceptualization of the Rechtsstaat principle. As a regulating principle, the principle of a State governed by law seems perfectly applicable to a non-state polity. In other words, as far as the EU is concerned, the reference to the notions of rule of law/Rechtsstaat/Etat de droit broadly means that the Union is also governed by a general and fundamental principle, which is common to the Member States, and according to which the exercise of public power is subject or regulated by a set of formal and substantive limitations. Undeniably, the codification of the rule of law as a fundamental principle on which the EU is founded has further consolidated the dominant character of the rule of law as an organizational paradigm of terbaru constitutional law at the national and international levels. The EU’s strong and explicit emphasis on the rule of law might explain, for instance, the 2005 statutory recognition of the rule of law as an existing constitutional principle in the United Kingdom
From a legitimacy point of view, Article 6(1) TEU represents a positive development in the sense that European citizens can only but welcome the explicit linkage of the EU’s constitutional system with the key tenets of Western constitutionalism. In the age of globalization and the serious challenges to the democratic legitimacy of the nation state this phenomenon has raised, as observed by Tridimas, this “enshrinement of values in constitutional texts seeks to achieve protection, legitimacy, legal certainty and historical continuity. At the heart of this new European constitutionalism lies an aspiration that a new social and political order can be attained and that the transfer of powers to supra-national organizations is acceptable provided that it is accompanied by shared commitment to abstract principles imbued in liberal ideals.” Advocate General Poiares Maduro recently expressed a similar point of view:
Article 6 TEU expresses the respect due to national constitutional values. It also indicates how best to prevent any real conflict with them, in particular by anchoring the constitutional foundations of the European Union in the constitutional principles common to the Member States. Through this provision the Member States are reassured that the law of the European Union will not threaten the mendasar values of their constitutions. At the same time, however, they have transferred to the Court of Justice the task of protecting those values within the scope of Community law.
While it would be interesting to also address the question of whether the foundational principles mentioned in Article 6(1) TEU could help forge, in practice, a common European identity it may be sufficient here to depresi that the EU, in giving emphasis to these abstract “ideals,” is not particularly innovative. A more remarkable aspect of the enshrinement of the rule of law into the EU’s founding treaties is that it is hardly ever mentioned as a stand alone principle. In most cases, the principles of liberty, democracy and respect for fundamental rights immediately accompany the rule of law. This is the right approach. While the rule of law is traditionally considered “one of the most important political ideals of our time,” it is obviously not the only one. Indeed, it “is one of a cluster of ideals constitutive of terbaru political morality; the others are human rights, democracy, and perhaps also the principles of free market economy.” Those faithful to a strict “formal” conception of the rule of law have nevertheless controversially argued that it should not be confused with democracy, justice, equality, etc. and that it can even be “compatible with gross violations of human rights.” The EU offers a striking counter-versi to this doctrinal approach and in doing so, more accurately reflects the positive law of most if not all European countries.
In EU constitutional law, the rule of law is rightly understood as sharing a consubstantial, one may say organic, link with the other foundational principles mentioned in Article 6(1) TEU. This makes it difficult to assess the rule of law, as a constitutional principle of the EU, in light of the traditional – yet largely artificial – theoretical divide between formal and substantive approaches, especially if one wrongly believes that formal and substantive features of the rule of law are mutually exclusive. Indeed, the EU offers a mixed versi. By distinguishing the rule of law from other foundational principles such as democracy or mendasar rights, Article 6(1) TEU may seem to suggest the adoption of a narrow and predominantly formal understanding of the rule of law (i.e. judicial review, principle of legality, hierarchy of norms, etc.). Such an interpretation, however, would not do full justice to the fact that the EU’s “Constitution,” viewed as whole, strongly indicates that all the principles referred to in Article 6(1) TEU are interdependent and must be construed in light of each other. The EU is founded on all of them simultaneously and violation of any of them should necessarily mean that the others cannot be satisfactorily complied with. This reading seems to be validated by Articles 7 and 49 TEU. It also appears to have gained ground in the case law of Court of Justice as will be shown below. Although it is true that the Court’s initial understanding was predominantly formal and procedural in nature, an evolution towards a more expansive and substantive understanding can be detected.
The Rule of Law as an Umbrella Principle with Formal and Substantive Components
While Article 6(1) TEU clearly stresses the mendasar character of the rule of law as one of the fundamental constitutional principles on which the EU is founded, it does not attempt to define it. Scholars often regret this lack of a formal definition, but it seems excessive to criticize, on this basis, the Treaty reference to the rule of law. This lack of definition is far from unprecedented and does not necessarily mean that the EU rule of law is inevitably and unjustifiably vague. Where national constitutions explicitly refer to the rule of law, they do not specify what this principle precisely and exhaustively entails. A similar diagnosis can be made in relation to constitutional courts. This general reluctance to give a precise meaning to the rule of law may be a wise choice considering the polysemic and contested nature of this principle. In the EU context, the absence of any definition has had the consequence of allowing or rather obliging the EU courts to flesh the principle out. The most remarkable aspect of the Court of Justice’s case law post Les Verts lies in the broader interpretation of the rule of law. This is to be welcomed as the rule of law should be understood as an “umbrella principle” with formal and substantive components or sub-principles. In reflecting this understanding, the Court’s case law is not particularly innovative but on the contrary, replicates to a great extent national constitutional experiences and in particular, the German one. Before listing the legal sub-principles that the EU rule of law, as outlined by the Court, entails, it may be useful to briefly explain the nature of an umbrella principle.
Following Les Verts, the formula “Community based on the rule of law” was rightly described as a “principle” in 1990, a few years before Article 6(1) TEU made explicit that the rule of law, legally speaking, is neither a mere political ideal nor a rule of law. It is an umbrella constitutional principle from which more concrete legal principles can be derived with the aim of subjecting the exercise of public power to some “limitations”. It is not, however, a neutral principle. As clearly indicated in Les Verts, the central “budbahasa” purpose of the EU rule of law is to guarantee the existence of a legal order where natural and legal persons subject to this order, as a matter of principle, are judicially protected against any eventual arbitrary or unlawful exercise of Community/Union power. To protect, in practice, the subjects of this “new” legal order, the Court initially focused on guaranteeing formal/procedural principles, the most important of which are the principle of judicial review and the right to an effective remedy, the principle of legal certainty, the principle of legitimate expectations and the principle of proportionality. But the EU rule of law does not simply demand compliance with a set of formal principles. In fact, in most if not all European constitutional traditions, the rule of law is generally understood by courts as requiring that the exercise of public power be subject to procedural as well as substantive limitations. As a consequence, the direct and explicit linkage, which has been made by the Court of Justice, to the general principle of fundamental rights protection since the UPA judgment of 2002, is neither surprising nor objectionable:
The European Community is, however, a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include mendasar rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order …
The Court’s first explicit reference to fundamental rights makes clear at last that the EU rule of law does not merely encompass compliance with formal and procedural requirements. It has a substantive dimension in the sense that the rule of law also demands, according to the Court, judicial remedies and processes to protect procedural as well as substantive fundamental rights. To further argue that the UPA case also shows that the Court views mendasar rights, not only as a component of the rule of law but as its foundation may nonetheless be questioned. Indeed, there is no express indication that the Court understands judicial review as being ontologically and primarily justified by the need to protect mendasar rights. Rather, the Court merely indicates that respect for fundamental rights is of particular importance when it has to review the “constitutionality” of EU institutions’ actions. This interpretation is perfectly reasonable in light of Article 6(1) TEU and illustrates the existence of a consubstantial link between the principles of the rule of law and of respect for fundamental rights. One may nevertheless concede that while not being a formal foundation of the rule of law, the modern core theoretical or philosophical purpose of this concept is to protect the primacy and dignity of the individual and therefore his/her fundamental rights. In Germany
[T]he review by the Court of the validity of any Community measure in the light of mendasar rights must be considered to be the expression, in a Community based on the rule of law, of a constitutional guarantee [our emphasis] stemming from the EC Treaty as an autonomous legal system …
It follows that one important, if not the most important, purpose of judicial review, according the Court, lies in the protection of natural and legal persons’ fundamental rights. This means, for instance, that the interpretation and application of the formal components of the EU rule of law must permanently be guided by this purpose and that “strict judicial scrutiny” should be the rule when public interferences with individual mendasar rights are at issue.
While the Court’s “deepening” of the rule of law is a positive development, its traditional formula since Les Verts (the EC is a community based on the rule of law) would benefit from some adjustment to make the substantive dimension of the principle more explicit. My suggestion is for the Court to use the likely entry into force of the Lisbon Treaty as the perfect opportunity to revise its formula along those lines:
The European Union is a Union founded on the values of human dignity, freedom, equality and solidarity and governed inter alia by the principle of the rule of law [Rechtsstaat, Etat de droit, etc., which primarily means that its institutions are subject to judicial review of the compatibility of their acts, save narrowly construed exceptions, in order to guarantee their compatibility with the constitutional order created by the EU’s founding treaties and in particular the whole range of fundamental rights it protects.
Regardless of whether one agrees with this suggestion, the most important point here is that the Court of Justice has refined its understanding of the rule of law and its constitutive components since Les Verts. A move towards a more “material” and “demanding” conception can be detected. This is to be welcomed and accurately reflects the subsequent enshrinement of the rule of law as one of the foundational principles on which the EU is founded. This codification of the rule of law legitimizes judicial references made to it and would seem to justify a more explicit linkage of the rule of law with the other foundational principles with which it is invariably associated. Yet and somewhat intriguingly, the Court of Justice has continued to refer to the rule of law somewhat parsimoniously and has not directly relied on it to regulate the exercise of EU power. This reluctance to apply the rule of law as a rule of law is not, however, uncommon.
The Rule of Law as a Rule of Law
The normative added-value of the rule of law, as a constitutional principle of EU law, has been challenged. For some critics, either when it is mentioned at Article 6(1) TEU or relied on by the Court of Justice, the rule of law is a mere umbrella term whose unique function is, from a legal point of view, to synthesize a series of sub-principles in an attractive and valorizing formula. This criticism is not entirely warranted. While scholars and the Court, the latter not always explicitly, have invoked the notion of community based on the rule of law to justify the “discovery” of a set of fully justiciable general principles of law, it would be wrong to conclude that the rule of law’s alleged lack of justiciability necessarily implies a complete lack of normative effect. The rule of law, as a “structuring principle,” can in particular guide judicial interpretation. Before looking at the rule of law’s interpretative function, the extent of its justiciable nature should be further explored.
It would be difficult to deny that the Court of Justice does not view the rule of law as a rule of law actionable before a court. For instance, parties in legal proceedings cannot directly rely on the rule of law to seek annulment of the acts of EU institutions. The reason is that the rule of law is not one of the principles of judicial review but rather provides the constitutional foundation for judicial review at EU level. This explains the relatively minor number of instances where the rule of law has played a direct role with respect to the outcome of the cases before the EU courts, even where the Court of Justice or the Court of First Instance have been invited to do so by the private parties’ counsels or by the Advocates General. This finding is not entirely surprising as the rule of law is, above all, a foundational principle with an umbrella nature. Therefore, it is not an ideal standard for day-to-day judicial work. Indeed, if the rule of law were treated as a rule of law, it would potentially run afoul of its own requirements for the simple reason that the rule of law itself is not entirely clear or certain in meaning. This is why, not unlike national judicial practices, EU judges have been more naturally inclined to rely on more concrete and less open-ended principles to scrutinize public authorities’ measures. The prudent use of the rule of law also presents the advantage of being less likely to opening up a debate on Europe ’s judicial activism. This is not to say that the rule of law is not a legal principle or that it completely lacks legal effect. As a mendasar proposition of law which underlies the European legal order, the rule of law can be used both as a source from which more narrowly defined or concrete principles can be derived, and as a constitutional norm which should guide the interpretation of other constitutional and infra-constitutional norms.
As previously noted, the Court of Justice has developed a rich body of jurisprudence on the so-called general principles of law. While the most important ones have already been identified, their modus operandi and their relationship have not been fully explained. The general principles of Community law constitute, similarly to Treaty provisions, a primary source of Community law, i.e. they are located at the top of the Community’s hierarchy of norms. Their main purpose is to operate as grounds of review, i.e. Community courts can invalidate EC “legislation” and administrative measures (and in some circumstances, national measures) when they conflict with the general principles of law. Historically, most of these general principles were drawn by the Court of Justice, before the judgment in Les Verts, from the laws of the Member States, and therefore were not explicitly linked to the principle of the rule of law. The case law post Les Verts is, regrettably, not much more explicit. This is unfortunate, conceptually speaking, as the general principles share an obvious connection with the rule of law. Indeed, they are “concrete” emanations of the rule of law as their primary purpose is to regulate public power according to material and substantive standards. The rule of law can therefore be used to legitimize and bring coherence to the judicial “discovery” of these plainly justiciable general principles. The Court of First Instance, on one occasion at least, made explicit the existence of such a relationship by referring to the right to sound administration and the principle of judicial review as “general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States.” This innovative and welcome wording, which the Court of Justice has yet to adopt, conveniently relays two important ideas previously discussed: (i) the rule of law, at the national and EU levels, must primarily be viewed as a foundational principle of constitutional value; (ii) the general principles of law protected under Community law are inherent to any polity governed by the rule of law.
In numerous legal systems, the rule of law also functions as a key interpretative guide and this is the second important normative function this principle fulfills in the EU context. As one of the few constitutional principles which has a defining character and on which all terbaru and liberal political systems are expected to be based, the rule of law is in a “preferred position” when courts must interpret the national constitution. The rule of law may not be fully justiciable and possess the nature of a principle formally “superior” to other constitutional norms. Yet as a “structuring principle” or “primary constitutional principle,” it must always inform the interpretation of other constitutional and infra-constitutional norms. To put it differently, the rule of law, alongside the principles of democracy, liberty and mendasar rights protection, represents a foundational value of the EU legal order that the EU courts must always take into account in their day-to-day adjudicative role with a view of strengthening concrete compliance with it. In practice, and in most cases, the Courts have rightly referred to the notion of “community based on the rule of law” to justify a dynamic and, at times, contra legem reading of “restrictive” Treaty provisions, i.e. provisions which may be viewed as constituting exceptions to the rule of law. Judicial references to the rule of law have also been made to justify the exercise of a strict degree of judicial scrutiny over EU measures.
Distinctive Features
In the EU constitutional framework, the rule of law is also used as a benchmark to assess the actions of its members and candidate countries and as a foreign policy objective. Viewed in light of national constitutional traditions, these features may seem quite original. Two caveats are nonetheless in order. The EU’s supranational and dynamic character explains the first feature. While federal states may have constitutional clauses according to which their constitutive entities must comply with inter alia the rule of law, one of the EU’s raisons d’être is to expand and welcome more members As a result, compliance with the rule of law is also a prior condition for EU membership. This largely explains why the rule of law is one of the key objectives of the EU’s “foreign policy.” This does not obviously mean that its Member States cannot or do not seek to promote compliance with this principle as part of their own foreign policies. As a supranational and goal-oriented organization with conferred powers, the EU naturally possesses a complex and much more detailed rulebook than most countries. In other words, unlike most national constitutions, the EU’s “Constitution” includes a long description of its policies and exhaustive lists of the objectives it must pursue. To that extent, it is not surprising that the rule of law was also enshrined in the EU’s rulebook as a foreign policy objective but in this context, the rule of law, arguably, completely ceases to operate as a constitutional principle. In other words, the rule of law as a foreign policy objective should fall outside the scope of this paper and as a result, only brief developments will be offered here.
The Rule of Law as a Politico-Legal Benchmark
By comparison to other national practices, the use of the rule of law by the EU – along with liberty, democracy and respect for fundamental rights – as a benchmark or standard to assess and eventually sanction the actions of its current and prospective members is rather unique. This aspect, however, is not entirely unprecedented on the international plane. To mention a single example, the Council of Europe possesses a formal mechanism under which any of its 47 members can be suspended from the organization in the context where a “serious” violation of the principles of the rule of law and respect for fundamental rights occurs. EU mechanisms nonetheless appear both more ambitious and sophisticated.
With respect to current EU Member States, Article 7 TEU enables the Council to take measures against any country guilty of “a serious and persistent breach” of the principles mentioned in Article 6(1) TEU. Preventive sanctions are also possible in situations where there is “a clear risk of a serious breach.” With respect to candidate countries, Article 49 TEU provides that any European State wishing to become a member of the Union must respect the principles on which it is founded.
A remarkable aspect of these two provisions is that they confirm the interdependent nature of the EU’s foundational principles. Although the awkward wording of Article 7 TEU theoretically enables EU institutions to sanction an individual Member State for seriously and persistently violating only one of the four principles mentioned in Article 6(1), subsequent attempts at implementing this provision have indicated that these principles should be understood as being interdependent. Furthermore, as amended by the Lisbon Treaty, Article 7 TEU clearly indicates that these principles are to be taken together: The Council may either determine that there is a clear risk of a serious breach by a Member State, or the existence of a serious and persistent breach by a Member State, of “the” values (and not “of principles”) referred to in Article 2 TEU (currently Article 6(1) TEU).
This debate may nevertheless be relatively insignificant for several reasons. Firstly, the fact that there must be a clear risk or that the actual breach must be simultaneously serious and persistent, indicate that the thresholds for activating Article 7 TEU will be hard to satisfy. Any implementation of this provision is further circumscribed by demanding voting thresholds and the Council’s discretionary power to sanction the relevant Member State Member State Member State
With respect to Article 7 TEU, the Court lacks the jurisdiction to review the legality of any decision determining that there is a clear risk of a breach of the Union ’s foundational principles or a serious and persistent breach of these principles. The Member States deliberately limited the Court’s jurisdiction to the review of the “purely procedural stipulations in Article 7,” with the aim of merely guaranteeing that the “guilty” Member State
Their limitations and defects notwithstanding, Articles 7 and 49 TEU serve a useful purpose. While individual Member States or candidate countries cannot realistically fear respectively any formal sanction or the rejection of their membership application for violating the foundational principles on which the Union is based, national governments must always be ready to defend the legitimacy of their actions in light of principles they cannot individually set aside. In that regard, the rule of law fulfills a distinctive and useful purpose when compared to the uses made of this principle at the national level. Another original aspect of the EU rule of law is that it is referred to as a foreign policy objective.
The Rule of Law as a Foreign Policy Objective
Since the end of the Cold War, promotion of the rule of law has become a major and recurrent objective of the EU when it acts externally, and more precisely on the international scene. In this particular context, the rule of law, arguably, ceases to fulfill a constitutional function. As a policy objective, it does not impose legally-binding obligations on EU institutions but rather operates as a “soft” and largely undefined ideal that is supposed to broadly guide EU actors when they act in the international arena. In the words of Advocate General Mengozzi, in its external dimension, the rule of law constitutes a “value to be “exported” beyond the borders of the Union by means of persuasion, incentives and negotiation.”
Technically speaking, one may distinguish between three areas where the rule of law is formally viewed as a “pure” policy objective rather than a politico-legal benchmark as in the case of the EU enlargement policy. The development and the consolidation of democracy and the rule of law is first mentioned as one of the EU’s foreign and security policy objectives, while the EC Treaty refers to the rule of law as one of the general objectives of the EC’s policy of development cooperation and as one of the EC’s policy in the area of economic, financial and technical cooperation measures with third countries. The multiplication of Treaty provisions has, unsurprisingly, led to a proliferation of policy initiatives, instruments and norms. In practice, the external promotion of the rule of law can mostly be found “in clauses of agreements, as an objective of financial and technical assistance, as a key element of conditionality and as part of the Union ’s developing conflict prevention and crisis management policies.”
Rather than exhaustively reviewing all these EU policies and the multiple references made to the rule of law, it appears more useful to frustasi two important aspects as regards the meaning and scope of the rule of law in this context. Firstly, the rule of law is once again clearly linked to the principles – or values – of democratic government and human rights protection. Indeed, these principles are so often intrinsically linked in practice that it appears impossible to clearly differentiate between them. This is reminiscent of our previous conclusion regarding the existence of a consubstantial link between these principles. EU legislation further demonstrates that the rule of law as a foreign policy objective of the EU goes beyond the formal approach favored by the followers of Raz, to mention one but eminent author, and includes substantive components as well.
Secondly, the rule of law is rarely subject to explicit definitions and when definitions are offered, they often lack consistency or rather they tend to focus on specific formal and/or substantive components of the rule of law. In this respect, one author has interestingly distinguished between three conceptions or models of the rule of law in EU external relations: the Co-operation model, the Development versi and the Security and Defense model. However, to criticize the EU for lacking a uniform and precise definition and suggest that the EU rule of law cannot, therefore, constitute a rule of law, seems to miss the point. National experiences have taught us that the rule of law, as a constitutional principle, is rarely defined. Furthermore, the rule of law is rarely if ever used as a rule of law but rather encompasses different components which can be used as legal standards by courts on a case by case basis. It fulfills a diverse set of constitutional functions and in particular, as a foundational value, it plays a legitimating role. The question of whether the rule of law constitutes a rule of law also appears misplaced when analyzing the impact of this principle as a foreign policy objective. The primary purpose of EU external policies in this context is to change the situation “on the ground,” i.e. to institutionalize compliance with the rule of law through diverse structural reforms with a view of guaranteeing a “better functioning” of the executive, legislature and judiciary. In this particular situation, it seems reasonable for EU institutions to emphasize compliance with some components of the rule of law to the detriment of others, in order to reflect different priorities and contexts. This is not akin to creating a different concept of the rule of law per policy area. In addition, while it may be true that EU external policies sometimes reflect questionable understandings of what the rule of law should entail (e.g. anti-corruption), the core demands of the rule of law (principle of legality and existence of effective legal remedies to guarantee the protection of mendasar rights) appear to be always taken into account. This is not to say, however, that the EU would not benefit from adopting a more explicit, transversal and integrated approach when it comes to promoting, in its relations with third countries and regions of the world, the foundational principles on which it is said to be founded.