If we are to believe Europa – the EU’s official website – the EU is based on the rule of law because “everything that it does is derived from treaties, which are agreed on voluntarily and democratically by all Member States.” The clear and succinct nature of this explanation, regrettably, does not reflect the complex nature of the EU principle of the rule of law. From a preliminary overview of the EU constitutional framework, one can easily deduce that this principle cannot simply be equated, for instance, with the basic principle of conferred competences. For the sake of clarity, a preliminary presentation of the rather tortuous history of the EU rule of law, and how this ideal progressively became a key constitutional principle, will first be offered. In a nutshell, the EC Treaty did not initially contain any explicit reference to the rule of law and it was not until a 1986 judgment of the Court of Justice that the concept was explicitly referred to. This first judicial reference was followed, starting in 1992, by multiple references made to the principle of the rule of law in the EU’s founding Treaties.
From Court’s Dictum…
In Les Verts, the Court of Justice, for the first time, described the EC as a “Community based on the rule of law.” This original formula appears to directly derive from the German term Rechtsgemeinschaft coined by Walter Hallstein, a renowned German Professor of Law who later became the first President of the European Commission from 1958 to 1967. In the French version of the judgment, Rechtsgemeinschaft is translated to communauté de droit. The Court, albeit obviously familiar with the classical notions of Rechtsstaat or Etat de droit, which are traditionally used by national lawyers to translate the English rule of law, has mostly refrained from making any use of them. The most likely explanation for the Court’s reluctance to rely on the more classic national concepts – a reluctance which is difficult for English speakers to note as the English phrase does not refer to a state or government – is that Community judges were reluctant to use terms which could give ammunition to those who have constantly feared and denounced the emergence of a European “Superstate.” The use of the term Gemeinschaft/communauté de droit – “community based on law” if literally translated – leaves indeed open the statehood question and the Member States themselves might not have welcome a judicial description of the Community as one which is governed by the principle of a “State” (Staat/Etat) governed by law. Another potential explanation is that the Court wished to acknowledge the existence of a genealogical link between all the national and EC concepts, but also sought to preserve its power to construct an “autonomous” European understanding. A succinct analysis of the context in which the original expression of “Community based on the rule of law” was adopted will help clarify its core meaning as initially understood by the Court.
In Les Verts, the Court of Justice had to rule on the delicate question of whether the European Parliament could act as a respondent in annulments proceedings initiated by a private party, i.e. a French association known as Les Verts – Parti écologiste. This was no easy legal question, not because of the substantive points raised by the applicant but because of the eminently constitutional question at issue. According to what was then Article 173 EEC (currently Article 230 EC), the Court’s jurisdiction to hear and determine an action for annulment was expressly limited to actions brought against measures adopted by the Council and the Commission. In the words of the applicant, this limitation amounted to a “denial of justice,” an ancient and mendasar legal notion which has traditionally justified a large exercise of judicial interpretation when the right to obtain a ruling is at stake. Not unsurprisingly, the European Parliament also realized that it would politically benefit, as an institution (rather than as a litigant), from advocating the view that the list of potential defendants in former Article 173 EEC should not be interpreted as being exhaustive. In the name of the rule of law and by reference to the “general scheme” of the Treaty as well as its “spirit” as expressed in what is now Article 220 EC (“The Court of Justice … shall ensure that in the interpretation and application of this Treaty the law is observed”), the Court agreed to reinterpret – some may say rewrite – Article 173 EEC as not excluding annulment actions brought against measures adopted by the Parliament intended to have legal effects vis-à-vis third parties. It is in this context of manifest judicial activism that the phrase “Community based on the rule of law” first emerged in a key obiter which merits reproduction in extenso:
It must first be emphasized in this regard that the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States
While the Court’s judgment does not precisely explain the origin and meaning of the rule of law at Community level – the notion was not yet explicitly mentioned as such in the EC Treaty – it is clear that the Court implicitly views it both as a positive good in itself and as one of the fundamental principles underlying the EC’s entire constitutional framework. This, in turn, explains why, in the eyes of the Court, a “generous and dynamic interpretation” of the EC’s “Constitution” is not only a legitimate method of interpretation but may be, at times, preferable to a literal reading. Advocate General Mancini interestingly derived from the Court’s case law the principle that “the obligation to observe the law” – a phrasing reminiscent of Article 220 EC previously cited – “takes precedence over the strict terms of the written law.” As a result, “[w]henever required in the interest of judicial protection, the Court is prepared to correct or complete rules which limit its power in the name of the principle which defines its mission.” Two important initial points can be derived from Mancini’s analysis.
Firstly, a purposive interpretation is both legitimate and necessary when the objective is to correct any eventual gap in the legal system in order “to meet the requirements of the rule of law.” In such a situation, the Court may exercise “a creative function” and act in a quasi constitutional capacity, which is exactly what the Court did in Les Verts. Such judicial activism is not necessarily illegitimate. Indeed, it was obvious in 1986 that ex Article 173 EEC had not kept pace with the expansion of the Parliament’s powers since the signing of the EEC Treaty in 1957. As Tridimas observes, “as the Community develops, the ensuing increase in the powers of the institutions has to be accompanied by adequate control mechanisms, if the rule of law is to be observed.” While some may find this exercise of judicial power objectionable, it is not unusual for constitutional courts to rely on the principle of the rule of law to (re)interpret the national constitution and eventually justify an extension of their jurisdiction or of the legal norms which may used to assess the constitutionality of public authorities’ actions. Furthermore, in the Community context, one may refer to Article 220 EC to make the additional argument that the Court of Justice is actually under a legal obligation to ensure that the rule of law is observed. While Article 220 EC does not expressly refer to the rule of law, it has been convincingly argued that the principle is inherent in this Treaty provision.
This leads to the second important and more problematic issue raised by Les Verts: How does the Court of Justice understand the rule of law? AG Mancini seems to equate it with the notion of judicial protection or control. Although certainly preoccupied with the effectiveness of the individual right to effective judicial protection – a general principle of EC law which is also laid down in Articles 6 and 13 of the ECHR – the Court appears to view the rule of law in more encompassing but no less procedural terms. In other words, the EC is said to comply with the rule of law because it offers a complete set of legal remedies and procedures in order to ensure (i) that its institutions (as well as its Member States where relevant) adopt measures in conformity with the fundamental sources of EC law and (ii) that natural and legal persons are able to challenge the legality of any act which affects their EC rights and obligations. For the Court of Justice, therefore, the principle of the rule of law entails more than the individual fundamental right to judicial protection. It first provides the foundation for judicial review and implies the existence of comprehensive and complementary judicial review processes. These processes, in turn, enable the judiciary to ensure compliance with two key tenets of any genuine legal system: the principle of legality, that is essentially the requirement that public authorities enact measures in conformity with the legal system’s hierarchy of norms and the principle of judicial protection, which in particular implies the right to obtain an effective remedy before a competent court for any person whose rights or interests guaranteed by law are violated by public authorities. To put it differently, judicial review not only ensures that public authorities respect legally protected “individual” rights and interests, it also guarantees that these authorities enact measures in compliance with all relevant superior legal norms.
As a first provisional conclusion, the Court of Justice’s initial understanding of the notion of “Community based on the rule of law” can be described as legalistic and procedural as it is closely related to the traditional and interrelated legal principles of legality, judicial protection and judicial review, principles which are inherent to all modern and democratic legal systems. EU lawyers and judges, for the most part, have welcomed the Court’s rather narrow and formal approach and would likely broadly agree with Jacobs’ contention that “the key to the notion of the rule of law is … the reviewability of decisions of public authorities by independent courts.” Viewed in this light, one may reasonably argue that the rule of law, in the EU, “has been effectively guaranteed by the wide jurisdiction conferred” on two independent courts, i.e. the Court of Justice and subsequently, the Court of First Instance. This is not to say that this is how the EU rule of law should be understood or that better or more effective compliance with this principle is neither possible nor desirable. For instance, the rules governing the locus standi of private parties in annulment proceedings or the persistence of policy areas not subject (or only partially) to the jurisdiction of EU courts have been regularly criticized. This paper’s aim, however, is not to subject the EU Constitution to a “rule of law audit” but rather to explore the meaning, scope and impact of the rule of law as a constitutional principle of the EU. This objective requires the pursuit of our preliminary assessment of the EU’s constitutional framework. Indeed, a mere few years after the Court’s first innovative reference to it, the rule of law was endowed with formal Treaty blessing.
…to a Formalized “Constitutional” Principle
The formal enshrinement of the rule of law in the EU’s founding Treaties should be understood in the political context of the time. Following the end of the cold war and what appeared, for a short time, as the universal and permanent triumph of the Western democratic and liberal model, European countries agreed to commit themselves to promoting human rights, democracy and the rule of law as the three fundamental principles on which the “new Europe ” must be founded. From then onwards, the rule of law became a dominant concept in political and legal discourses. In these circumstances, the Court of Justice’s relatively original reference to the principle notwithstanding, it is not surprising that the EU Member States decided to insert not one but multiple references to the rule of law in the EU Treaties when negotiating the Maastricht Treaty (1992). These references were nonetheless largely symbolic at first. For instance, the Preamble of the TEU merely stipulates that the Member States confirm “their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law.” In addition, Article 11 TEU and Article 177(2) EC respectively assign to the EU’s foreign and security policy and the EC’s policy of development cooperation the same objective of developing and consolidating democracy and the rule of law and respect for mendasar rights.
A more noteworthy development occurred in 1997. A new fourth reference was made to the rule of law. According to Article 6(1) TEU as modified by the Amsterdam Treaty:
The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
While Article 6(1) TEU will be subject to further analysis, it may be useful at this stage to note that the TEU does not offer any definition of the primary principles on which the EU is said to be founded. Furthermore, the German and French versions of Article 6(1) TEU make clear that the Court of Justice’s description of a Community based on the rule of law (Rechtsgemeinschaft/communauté de droit) is not adopted. Instead, the EU is said to be founded on the principle of Rechtsstaatlichkeit/Etat de droit, i.e. on the principle of a State founded on the rule of law. Yet it is quite evident that the EU is not a State. Could it mean that the principle is only binding on the Member States? In the English language, the notions of a community based on the rule of law (Court of Justice’s phrasing) and of a Union founded on the principle of the rule of law (Article 6(1) TEU) do not appear dramatically different from a conceptual point of view. As we shall see, this may be for the best as the principles of Rechtsgemeinschaft/communauté de droit and of Rechtsstaat/Etat de droit give the wrong impression of an important dichotomy when in fact they illustrate the same basic idea: the exercise of public power is subject to the law. In other words, Article 6(1) means that the EU is a polity that complies with this principle rather than being itself a State founded on the rule of law.
Two additional and significant references made to the rule of law in 1997 need to be briefly mentioned. The first one (Article 7 TEU) concerns the current Member States while the second (Article 49 TEU) is applicable to the countries wishing to accede to the EU.
With the entry into force of the Amsterdam Treaty, current Member States can theoretically be subject to EU sanctions under Article 7 TEU if they are guilty of “a serious and persistent breach … of principles mentioned in Article 6(1),” i.e. liberty, democracy, respect for human rights and mendasar freedoms, and the rule of law. This provision was further amended by the 2001 Nice Treaty to additionally authorize preventive sanctions in the situation where there is “a clear risk of a serious breach by a Member State Union . According to Article 49 TEU, any European State wishing to become a Member of the EU must respect the principles on which the Union is founded. This provision must be understood in the context of the controversial and permanent debate about the ultimate borders of the EU. Faced with fresh applications for admission after the fall of the Berlin Wall, the EU Member States decided – as they often do – to opt for the easy way: to define “objective” criteria rather than seeking an agreement on the geographical outer limits of Europe. In Copenhagen in 1993, the European Council unanimously approved the principle of the Union ’s enlargement. However, candidate countries were asked to fulfill a set of criteria: the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (political criterion); the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the EU (economic criterion); and the ability to take on membership obligations including adherence to the aims of political, economic and monetary union (criterion concerning adoption of the Community acquis). A few years later, as described above, the Amsterdam Treaty stressed the importance of the political criteria and inserted a new provision currently known as Article 49 TEU.
The Lisbon Treaty, if successfully ratified, will amend the wording of Articles 6, 7 and 49 TEU. In line with the defunct Constitutional Treaty, the Lisbon Treaty refers to all the principles currently mentioned at Article 6(1) TEU as values. It also offers a fairly inflated list of those values upon which the EU is said to be founded:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Strangely enough, the rule of law is still identified as a principle in the Preamble of the EU Charter of Fundamental Rights. Is there a rational explanation for this vocabulary change? While one may theoretically distinguish between values and principles on the basis that “values have a more indeterminate configuration, whereas legal principles possess a more defined structure which, combined with their clear nature as ‘ought to be’ propositions, make them more suitable for the creation of legal rules through judicial adjudication,” it is doubtful that those responsible for this terminological variation intended to introduce these type of theoretical distinctions into the EU Treaties. The replacement of the term “principle” by the term “value” is nonetheless regrettable. A distinction between the EU’s mendasar budpekerti values (human dignity, freedom, etc.) on which the EU is founded, and the “structural” principles (democracy and the rule of law) on the basis of which the EU must function, would have been more appropriate. It may very well be that the EU’s Member States did not view the use of the term “value” as a meaningful change but if “principle” and “value” should be understood as synonymous, the need for a terminological change does not appear pressing. If the term “value” indicates, however, that Member States intended to make it more difficult to sanction any violation of the “principles” mentioned at current Article 6(1) TEU, either by themselves or by the EU, this would hardly be reconcilable with the long advertised goal of increasing the EU’s legitimacy and the successive Treaty amendments which have been adopted to strengthen the democratic and rule of law dimensions of the EU. This is why this terminological variation will not be interpreted here as implying any substantive change.
More decisive and more intriguing is the multiplication of Treaty references to a principle/value that is nowhere defined in EU primary law but rather presented as one which is common to the Member States. A comparative overview of how the rule of law has emerged and been relied on in different European legal traditions seems therefore in order before attempting to outline and assess the emergent unique meaning and scope of the EU rule of law. This is not to say that from a legal point of view, the EU rule of law must necessarily be interpreted and applied in conformity with national understandings but that these understandings will provide a useful benchmark when it is time to assess the extent to which the principle of the rule of law has been “Europeanized.” One also needs to explore the accuracy of the argument according to which the rule of law cannot simply be described as a common principle to the EU Member States. This lack of common understanding, the argument goes, makes it either vain for the EU to rely on the rule of law or necessary for it to develop its own and entirely autonomous understanding.