8.1 Introduction
Efforts to capture what the European Union is about can be akin to the story of the blind men drawing an elephant. If the standard political narrative is a success story, with European integration bringing peace and wealth to Europe after centuries of war, another way of looking at the Union is through the lens of crisis. In this second reading, efforts at European integration have failed and failed again, been challenged, rejected and challenged some more, with its nature and future contested until today – from the abandonment of the European Political Community and the European Defense Community in 1954 to the lingering crisis of the 1960s with its empty chair, the economic challenges in the 1970s and the failed referenda for a constitutional treaty in the early 2000s and then, in short order, the financial crisis, the migration crisis and, not least, the rule of law crisis. Yet, as professional optimists in politics and European lawyers will point out, European integration has not just continued but been deepened through these challenges: per aspera ad astra!
Indeed, the crises of the past were not simply obstacles to European integration but often enabled it. ‘Men take great decisions only when crisis stares them in the face’,Footnote 1 said Jean Monnet, one of the European Union’s founding fathers who revelled in his ability to work through a good crisis.Footnote 2 European Union law – as well as, occasionally, domestic constitutional law geared towards accommodating the EU – reflects this crisis-driven history in its particular flexibility. It has sometimes provided the arguments for further integration based on a teleological reading of the treaties and secondary Union law (the law of the EU institutions), and sometimes by not standing in the way of political action outside its framework.Footnote 3 And perhaps unsurprisingly, the flexibility that appears to some as an admirable exercise in dialogue and legal pluralismFootnote 4 suggests to others a return to the ‘law of the jungle’,Footnote 5 where not law but power ultimately prevails.
In this chapter, the story I want to tell is only partly about arguments from failure, though we will find some such arguments in this context, too. Mainly, I want to draw attention to a particular style of flexible legal argument when it comes to allocating and shifting responsibility and competences in a multilevel system, such as the European Union. The language of failure is bound up here with the theme of mutual trust as a constitutional principle of EU law. Tracing such arguments reveals a lot about the different political landscapes of different eras of European law. More importantly, it sketches the best picture we have as to what a more flexible approach to legal interpretation might look like on a grander scale. Arguments from failure are part of this approach, but they are not the whole or indeed even the most important element of it. Rather, the lesson of this chapter is a broader one about the need to draw more careful legal distinctions and take law as a constraint more seriously in the Union.
In the following, I start with an overview of the kind of flexible legal argument prevalent in European Union law, in particular, the so-called effet utile, that is the idea of interpreting the European treaties in a purposive manner with the aim of realizing the internal market.Footnote 6 After this, I turn to consider some more specific concepts and doctrines in European law, namely the concept of systemic deficiencies and the Solange-jurisprudence, as arguments from failure or variations thereof. Finally, I discuss the normative stakes of such arguments, against the backdrop of the EU’s broader functionalist approach.
8.2 Flexibility and Effet Utile in European Law
Arguments about failure, relative capacities and effectiveness have long functioned as an important driver for European integration. As in the case of the United Nations, in the EU, a sense of crisis and the language of efficiency have been closely entwined with a constitutionalist understanding of the then-European Communities, today the European Union. Thus, the neo-functionalist school of thought on the EU has long emphasized the importance of output legitimacy over input legitimacy.Footnote 7 It builds on early descriptions of the European communities as a purposive association for functional integration (‘Zweckverband’), highlighting its limited, utilitarian scope compared to sovereign states.Footnote 8 But if this functional delimitation is what distinguishes the EU from its Member States, it is the breadth and depth of its powers that distinguishes it from other international organizations and that ultimately constitutes a political community, even absent a European demos.Footnote 9 This ambivalence is captured particularly well by Turkuler Isiksel’s theory of the European Union. On the one hand, Isiksel accepts the constitutional character of the European Union, on the other hand she stresses, that the Union is nevertheless functionally limited and that its legitimacy depends on realizing its overarching goal of economic union.Footnote 10 This functionalist orientation has shaped European law and enabled a particularly flexible approach to legal interpretation.Footnote 11
8.2.1 Early Landmarks
Start by considering the early jurisprudence of the European Court of Justice. Its early landmark cases, Van Gend en Loos and Costa v. ENEL, ushered in the two central innovations of European law as compared to other bodies of international law. In these two cases, the CJEU famously developed the then-revolutionary doctrines of the direct effect and supremacy of Union law. Together, these doctrines guaranteed not only that individual citizens could rely on treaty provisions directly in domestic courts (under certain broadly defined conditions), but also that domestic laws conflicting with treaty provisions would have to give way. In its reasoning, the Court famously distinguished the European Communities from other international organizations. Adopting a constitutionalist language, the judges in Van Gend en Loos argued that the Communities constituted ‘a new legal order of international law for the benefit of which the states have limited their sovereign rights (…) and the subjects of which comprise not only the member states but also their nationals’.Footnote 12 Restricting the enforcement of the treaty to the Commission and other Member States would be ‘ineffective’, the judges argued, ‘if it were to occur after the implementation of a national decision taken contrary to the provisions of the treaty’.Footnote 13 The Court continued this line of reasoning in its subsequent Costa v. ENEL judgment, where the judges reasoned that Union law would lack effectiveness ‘if a state could unilaterally nullify its (the treaty’s) effects by means of a legislative measure which could prevail over community law’.Footnote 14 Once again, this was bound up in a broader argument about the special character of the European Treaties.
This revolutionary jurisprudence did not emerge out of nowhere, but was a result of lobbying by pro-European groups as well as the Commission’s legal service.Footnote 15 When the Court finally adopted their suggestions, the judges were responding to the lingering political crisis of the new European Communities. At that time, joint decision-making and the project of a positive harmonization of Member State laws had stalled because of disagreements among the governments involved.Footnote 16 This situation was seen as ‘disappointing’ by many, including Robert Lecourt, then-judge of the European Court.Footnote 17 Various attempts to revitalize the project of political integration had failed, and as scholars have noted, it seemed unrealistic then to place trust in the Commission or the Parliament to change this state of affairs.Footnote 18 This backdrop of political crisis and failure of the Communities’ political institutions has been described as a ‘critical pre-condition’ for the Court’s early landmarks.Footnote 19 In other words: Here, too, a sense of failure was driving judicial innovations, as discussed in Chapter 6. As Justice Lecourt put it: ‘It may seem excessive to present Law as a particularly efficient tool to unify Europe. It is, however, worth the demonstration. It may indeed offer the chance to acknowledge – and, who knows?, to adopt – this new path, protected from the great controversies, in order to achieve the goal the Six Member States have established’.Footnote 20
This protection ‘from the great controversies’ of course brought with it a degree of depoliticization, which recent scholars have not unreasonably identified as the early seeds of the democratic deficit of European integration.Footnote 21 We see a similar logic in the second landmark case of Costa v. ENEL, setting out the supremacy of Community law over domestic laws. For if the force of community law varied across different Member States, the objectives of the treaty would be put at risk – and hence, European law needed to prevail over national law. As the crisis intensified and cooperation between Member States in the community institutions reached a new low with France’s empty-chair approach in 1965, the Court and the Commission’s legal service became central to making political progress.
8.2.2 Consolidation
Van Gend and Costa marked only the beginning, albeit an auspicious one. The argument about the need for effectively realizing the treaties’ goals – the so-called effet utile – came to play a key role in driving legal innovation and political and economic integration in the European Union. Famous examples are the creation of state liability for breaches of EU law in FrancovichFootnote 22 and Brasserie du Pechêur,Footnote 23 the direct effect of EU directivesFootnote 24 and the doctrine of implied powers expanding the authority of European institutions vis-à-vis the Member States,Footnote 25 among many others. Insofar as the CJEU referred more explicitly to state failures in these cases, however, this was not where its emphasis lay. In the Court’s language, failure often simply indicated a breach of EU law. That then required effective remedies and thus drove legal innovation, but without making the latter too explicit. Only in the liability decisions in Brasserie du Pechêur/Factortame did the Court put forward a more specific concept of a breach of law that we might label failure, in the sense that individuals seeking to hold a state liable for damages suffered as a result of a violation of EU law had to show that the breach was sufficiently serious.Footnote 26 The broader rationale of efficient ordering also came to play a role in the CJEU’s doctrine of implied powers, later adopted in the Lisbon Treaty, but developed in the context of foreign relations in the early 1970s. Thus, in its 1971 ERTA judgment, the Court reasoned that where the Community had powers to regulate certain matters internally, ‘the full effect of this provision would be jeopardized if the powers which it confers (…) did not extend to the conclusion of agreements with third countries’.Footnote 27
Once the initial crises had been overcome, the Court’s early precedents were on the books and the CJEU’s broader teleological approach to the interpretation of the Treaties had become entrenched. Thus, functionalism continued to play an important role in the Court’s jurisprudence even when European politics subsequently changed, as a result of the introduction of majority voting, which furnished the means to overcome blockages by individual members. The Court’s expansive approach increasingly prompted scholarly and political criticism from the late 1990s onwards.Footnote 28 The more formal response came, inter alia, in the form of a treaty amendment, the subsidiarity clause, which many Member States hoped would provide a mechanism to constrain the exercise of Union powers in the future.Footnote 29 Yet, the clause did not fulfil that purpose, at least not in the first two decades after its introduction. Instead, it constitutionalized in many ways the CJEU’s outcome-oriented approach to EU competences. Today, encapsulated in Art. 5(3) TEU, the subsidiarity principle provides that
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
While the subsidiarity principle resembles other rules for dividing federal and state competences on the basis of concepts such as implied powers and necessity, its framing makes clear that (non-exclusive) competences in the EU are a priori understood not as fixed allocations of authority but rather as instruments to increase regulatory output.Footnote 30 As such, it contributed to further entrenching the EU’s legitimacy in functional terms – that is, in terms of enabling effective governance – rather than in terms of increasing democratic legitimacy.
8.3 Fundamental Rights Protection in a Multilevel System: Mutual Trust and Its Limitations
Arguments about relative capacities and effectiveness not only played a role in the realm of European economic law, however. Through the concept of systemic deficiencies and the Solange-jurisprudence they also appear in the very different realm of fundamental rights protection, where they provide a basis for intervention in cases of failure and for restraint, where trust in other bodies is appropriate. While such arguments play a different role in these cases than in the economic realm, their attractiveness in such different contexts speaks to their importance for negotiating responsibilities within multilevel legal systems.
8.3.1 Systemic Deficiencies and Mutual Trust
8.3.1.1 The N.S. Case
Start with a well-known decision of the CJEU on migration law. In the N.S. case, Belgian and UK courts had asked the CJEU whether their respective governments were still allowed to transfer asylum seekers back to the country through which they entered the European Union. This standard rule constituted an important element of the ‘Dublin system’,Footnote 31 given that reports had emerged showing that both the housing conditions as well as the legal procedures in place in Greece at the time were dreadful and violated asylum-seekers’ fundamental rights.Footnote 32 In other words, they asked if Belgium and the United Kingdom could really send people back to such conditions.
Drawing on an ECtHR judgment, in which the ECtHR had identified structural problems in Greece’s system for housing and processing asylum-seekers,Footnote 33 the CJEU answered the question negatively. In doing so, it developed the concept of systemic deficiencies, but coupled this with an individual assessment. Where systemic deficiencies provided sufficient grounds for believing that asylum seekers ‘face(d) a real risk of being subjected to inhuman or degrading treatment’, they could no longer be transferred back to their port of entry within the Dublin system. With this, the CJEU distinguished systemic deficiencies from ‘minor infringements’ of the existing European provisions. The latter would not trigger a deviation from the ordinary rules allocating responsibilities under the Dublin framework. However, where systemic deficiencies existed, they would shift responsibility for the asylum-seekers among the Member States, contrary to the existing rules which provided that the countries through which asylum-seekers entered the Union were responsible for dealing with their claims.
The N.S. judgment was a momentous decision because it involved a significant departure from the Court’s previous jurisprudence. The judges had always emphasized the principle of mutual trust, which echoes this theme in John Hart Ely’s theory of judicial review.Footnote 34 In the European Union, however, the principle of mutual trust had assumed a specific meaning in the context of creating the common market. Establishing such a truly integrated common market where products, capital and people can freely travel was and is no mean feat. It requires Europeans to recognize as valid in their own state acts of other Member States, from product safety standards and academic degrees to something as simple as driving licenses.Footnote 35 In a canonical case of the European Court of Justice, Cassis de Dijon, the Court had understood this principle to imply that Germans could not prohibit or hinder the marketing of a French liqueur, Cassis de Dijon, because its alcohol content was lower than the percentage required for beverages to be sold as liqueur in Germany.Footnote 36 Instead, German authorities had to recognize the French standards, according to which the liqueur had been produced, instead of imposing their own, thus admitting products of other Member States into their own internal markets. Because only some areas and some rules are truly standardized across the Union and because even where they are standardized, these standards are implemented by domestic administrators, the principle of mutual recognition became enormously important. The CJEU supplemented the principle of mutual recognition with the parallel principle of mutual trust.Footnote 37 Because Member States could trust each other to comply with European law, the standard argument went, they had to recognize each other’s actions and procedures as presumptively legal. This also applied when the EU later assumed competences in the realm of judicial and police cooperation, with regard to criminal law and asylum law.Footnote 38
The concept of ‘systemic deficiencies’ was thus developed by the Court to carve out an exception to the rule of mutual trust. In specific cases, Member States were not just allowed but legally required to set aside the fiction of trust and cease sending asylum-seekers back to their port of entry. In Elyian terms, we might also label this a malfunction in the integration process, which then triggers intervention, albeit in a specific supranational context.
8.3.1.2 The Rule of Law Crisis
Following the N.S. judgment, the term ‘systemic deficiencies’ quickly became familiar in European Union law. It was invoked in a host of European and domestic European judgments in the field of migration and adopted in subsequent legislation (Art. 3(2) of EU Regulation 604/2013). The concept migrated to questions of extradition, where it became relevant in the context of the rule of law crisis.Footnote 39 In the case of Aranyosi and Caldaru (2016), the question arose if Germany could extradite two criminal suspects to Hungary and Romania on the basis of a European Arrest Warrant given the broader rule of law problems in the two countries and the questionable status of judicial independence there. Once again drawing on previous jurisprudence of the ECtHR,Footnote 40 the CJEU argued that cooperation between states under the European Arrest Warrant mechanism could be suspended only ‘in the event of serious and persistent breach by one of the Member States of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU’.Footnote 41 Thus, only once the Council had taken a decision according to Art. 7 TEU, Member States would have to suspend cooperation under the respective framework automatically.Footnote 42 Absent such a Council decision, judicial authorities would only be able to refuse extradition requests in certain exceptional cases where there was no longer a basis for mutual recognition and trust. In the case at hand, the Court concluded that it needed to investigate further and request information before extraditing persons in cases where
objective, reliable, specific and properly updated evidence (…) demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant (…) will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.Footnote 43
With this, it largely followed the advisory opinion of Advocate General Bot, who had pointed out that the situation resulted from ‘a damaging failure to act, on the part both of the Member States and of the Union institutions’.Footnote 44 Once again, then, the argument about systemic deficiencies served to disapply the existing regulatory framework and shift responsibilities among Member States.
The CJEU has since reaffirmed its approach in the widely discussed Celmer case,Footnote 45 which dealt with a reference by an Irish Court that had questioned an extradition request to Poland given the ongoing rule of law proceedings against the Polish government’s attempt to capture the judiciary.Footnote 46 The CJEU, however, made it even clearer in Celmer that systemic deficiencies on their own did not suffice to deny extradition but rather that there had to be an assessment of the specific risk to the concerned person in each individual case. What exactly the double-conditionality of systemic flaws and individual risk really requires is nevertheless somewhat unclear in the Court’s jurisprudence and subject of scholarly critiques.Footnote 47
Not least, the concept of systemic deficits subsequently also appeared in the context of the 2020 Rule of Law Conditionality Framework. This allows the European Commission to withhold certain funds from Member States inter alia in case of systemic deficits that ‘directly affect or seriously risk affecting the sound financial management of the Union budget or of the financial interests of the Union in a sufficiently direct way’.Footnote 48 It thus enabled the Commission to expand its powers (of withholding funds) in order to better respond to structural problems in Member States.
8.3.2 Solange and Reverse-Solange
8.3.2.1 The Solange-Jurisprudence
Though the concept of systemic deficiencies constituted a new doctrine in European law, it shared an underlying rationale with a much earlier line of jurisprudence, recognizing the need for effective rights protection in a multilevel system and for a certain degree of flexibility accordingly.
Indeed, the protection of constitutional and human rights by the CJEU itself constituted a response to a push-back by some constitutional courts, in particular the German. European law did not at that point include a catalogue of fundamental rights as opposed to a set of economic fundamental freedoms. This was particularly problematic because European law had been declared to be supreme in conflicts with domestic law. Such supremacy, as the CJEU had explained early on, applied not just to ordinary statutory domestic law but also to domestic constitutional law.Footnote 49 However, since the European Treaties themselves did not contain any human or fundamental rights norms in the traditional sense – the so-called economic freedoms were just that and not more – this meant that European law de facto operated without any human or fundamental rights safeguards. This, the German Constitutional Court decided in 1974, was not acceptable. It thus claimed for itself the competence to scrutinize European law with regard to its compatibility with German fundamental rights, limiting the supremacy of EU law with respect to the Basic Law ‘[A]s long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law’.
This line of reasoning, however, posed a threat to the CJEU, which was just starting to develop its own fundamental rights jurisprudence. As the CJEU’s willingness to develop and engage with fundamental rights picked up speed and somewhat more credibility, the German Constitutional Court subsequently relinquished its jurisdiction over European law in Solange II: ‘[A]s long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights.’Footnote 50
This later ‘solange’ (so long as) argument thus entails a variation on the theme of assuming power on the basis of failure. It goes like this: As long as another institution/system offers an adequate system of rights protection, the court/institution in question will not exercise its own jurisdiction in this regard. This is different to the first Solange-decision, which involved an argument from failure, albeit with one twist: Here, the German court claimed jurisdiction as long as the European system was failing to provide adequate rights protection. That decision was thus concerned not with a typical institutional failure in the sense of malperformance, but rather responded to a design or adaptation failure in the broader legal system of EC law. This design failure had led to a gap in fundamental rights protection, which the German Court initially sought to fill by exercising jurisdiction over EC law, contrary to the CJEU’s postulate of EU law supremacy. Once the gap had been closed – albeit not quite in the way initially envisaged by the German Court – there was no further need to exercise jurisdiction. That said, recourse to failure arguments remains a latent possibility should the EU fall significantly below its current standard of fundamental rights protection.
This concept has also surfaced in other decisions,Footnote 51 including in the European Court of Human Rights in the Bosphorus-decision (in modified formFootnote 52). And it featured in an advisory opinion of Advocate General MaduroFootnote 53 in a CJEU case, arguing for European rights review in dealing with individuals sanctioned by the UN Security Council, given that at the time, such individuals had no way of challenging their sanctions within the UN system itself.Footnote 54
8.3.2.2 Reverse-Solange
More recently, the Solange-rationale has been revived in the academic literature in the context of the European rule of law crisis. Armin von Bogdandy and Iris Canor, writing with a number of co-authors, have argued for an expansion of the CJEU’s competences in cases where we encounter serious deficits regarding the rule of law in individual Member States.Footnote 55 Labelled Reverse-Solange, this proposal is geared to address the problem that the European Union, strictly speaking, has very limited means to ensure adherence to core principles of democracy and the rule of law outside the scope of European law. For while there exists a Charter of Fundamental Rights that applies to actions of the European Union itself, Member States are only bound by the Charter when they implement European law, according to Art. 51 CFR.Footnote 56 Ultimately, this proposal envisages the European Court of Justice assuming the function of a constitutional court in states where serious rule of law deficits exist with respect to core rights and values as protected by Art. 2 TEU.
8.4 Questions and Lessons
All of this raises the question what our framework and the previous insights from this book can bring to the EU case – and what in turn the EU stories might teach us going forward.
To start with, it bears emphasizing that the idea of effectiveness holds an important place as a source of political legitimacy both within and outside of nation states, its inherently administrative character and focus on risk-regulation notwithstanding.Footnote 57 Of course, this does not necessarily imply that it should operate as a yardstick for legality, as opposed to a consideration legislators or constitution drafters should take into account when designing policies and even institutions. Given the ‘liquid’ structures of authority we encounter in the international realm,Footnote 58 but also in the European one, this is not surprising. However, in an EU context, this deserves particular attention because the European Union is much more federalized, much closer to a state than other international organizations, and it exercises much more power. Unlike other international organizations, the European Union can meaningfully be described in constitutional terms.Footnote 59 However, in the European Union, democratic and functionalist modes of legitimacy have long been in tension with each other,Footnote 60 even if we accept that input- and output-legitimacy are not necessarily mutually exclusive but rather complementary.Footnote 61
Some scholars have more recently suggested that the path of integration through law in the Union has come to end, and that governance in the EU is increasingly driven by more informal arrangements and measures of questionable legality, drawing on necessity and emergency rather than constitutional tropes.Footnote 62 They reference developments during the financial crisis that were based on a very insecure legal footing, if at all: the Troika, the expansion of the ECB’s powers during the crisis, and the European stability mechanism, upheld by the European Court of Justice in Pringle.Footnote 63 Though it remains somewhat unclear how far this trend in the EU has gone – and how much it is mostly a response to the series of crises shaking the Union from the 2010s onwards – these observations tie in with what seems to be a broader global trend towards more informality in international affairs. Recent scholarship shows that decision-makers increasingly choose informal arrangements over formal ones (for different reasons).Footnote 64 From a constitutional theory perspective, such arrangements are no less troubling than the more formal structures and institutions we have gotten used to. While they may be better at preserving domestic decision-making powers (if this is what we worry about), they also typically involve fairly opaque decision-making arrangements, which often hinge on personal networks.Footnote 65
All of this suggests two things. First, it is important to face up to functionalism as a key source of legitimacy in the European Union, one that will hold a more important place here than in domestic states. In this regard, the European Union is much like other international organizations. And because supranationalism will remain contested and problematic, a certain degree of legal flexibility will be necessary to respond to shifting political and legal landscapes. Yet, it also seems important that this openness should not get out of hand. Both in the interests of the Member States and the Union, legal guardrails are necessary, from a strategic perspective, but more importantly from a normative one. It is core to the idea of modern constitutionalism that the exercise of legal power be legally bound. This suggests that the more recent emergency-driven logic of integration as well as the unqualified effet utile approach the CJEU has often adopted in the past both go too far. It also illustrates why arguments from failure might have an important place in this context, by offering a principled and legal but narrow path for intervention in some cases. Given its constitutional character, the EU is in many ways a more suitable legal environment for such arguments than most other international organizations. The European Treaties clearly stipulate principles of mutual solidarity and cooperation (e.g. Preamble, Art. 2, 3, 4, etc. TEU), albeit that solidarity may in practice often be lacking between Member States, as demonstrated during the financial crisis.Footnote 66
8.4.1 Arguments from Failure
The framework developed here also provides a clearer perspective on some of the more specific examples and cases discussed in Section 8.3, to which I now return.
8.4.1.1 Solange-Arguments
In constitutional theory, approaches like Solange are typically discussed in the context of ideas of constitutional pluralism or even judicial dialogue in Europe. Multiple courts are seen as being in a conversation about rights protection in the context of determining their own jurisdiction vis-à-vis one another.Footnote 67 As such, these decisions represent not just an example of an approach that adopts a comparative institutional analysis as its key lens, but we may also label the Solange-arguments a form of ‘legal process theory’, with close parallels to comparative political process theory. The difference is that we are here concerned with deficits in rights protection rather than democratic processes, while acknowledging that both are closely related. Yet, while the Solange-approach may be intuitively convincing to manage jurisdictional conflicts in a multilevel system, it is also problematic. As briefly discussed in Chapter 2, Alexander Somek delivers perhaps the most stinging attack on this line of jurisprudence, describing the Solange-approach as a return to ‘the law of the jungle’, where ultimately political powers prevail.Footnote 68 Where defenders of constitutional pluralism such as Mattias Kumm reframe this jurisprudence as part of a practice of mutual justification and an expression of the principle of subsidiarity, Somek considers it as an example of an administrative approach to constitutionalism whose focus is on ‘interface conflicts and their management’.Footnote 69 Ultimately, he concludes, ideas of good governance triumph over democratic self-government.Footnote 70 Rather than providing ‘comprehensive regulation of the exercise of public authority’, the constitution becomes ‘a constitution of conflict’.Footnote 71 In other words, what is legal depends on regulatory output rather than on whether the institution acting is part of a government elected directly by the people over whom it exercises authority.
Though Somek’s argument is important in providing a more critical perspective on the constitutional pluralism literature, it seems to me that his critique has a lot more bite with regard to effet utile arguments and the principles of subsidiarity and proportionality in EU law than with regard to the target at which he directs it, the Solange-jurisprudence.
For the Solange-jurisprudence does not truly open the gates to a situation of ‘bourgeois anarchy’, where individuals are in a position to choose their loyalties and decide whom to trust.Footnote 72 This becomes clear when we take a look at the original cases themselves. In neither of the two German Solange-decisions were the plaintiffs put in a position to make a choice where to pursue their rights claims, that is in the European Union or Germany. Nor did the decisions introduce a case-by-case approach to the matter. Instead, they allowed the German Court to set out generally the responsibilities of European and German courts in dealing with rights violations, in the context of the European Union exercising public power. This distinguishes the decisions from the Bosphorus judgment of the ECtHR, which adopts a more flexible approach to the issue, albeit one that has given rise to some uncertainty.Footnote 73 At the same time, the ECtHR also clearly had jurisdiction in the Bosphorus case, which it chose not to exercise in favour of European and domestic courts. In other words, democratic legitimacy was not at stake here because the judgment involved (unlike Solange I) a withdrawal of a supranational court rather than an assertion of power.
Moreover, when the German Constitutional Court in Solange II relinquished its jurisdiction over European law, it did not represent a simple judicial retreat to make room for greater political powers, as Somek’s metaphor of the law of the jungle suggests. Rather, it involved a recognition that, ideally, rights violations should be addressed within the legal system whose authorities exercise power in the specific case. In other words, the German Court decided not to exercise review in cases where it was never ideal for German courts to exercise jurisdiction in the first place, and where it had done so only to establish a baseline of rights protection. Thus, unless we argue against any kind of rights review in a supranational system, on the basis that rights presuppose a demos or a social contract or in any event a closer political community than the EU can offer,Footnote 74 I am not persuaded by this line of argument. Nor can we credibly reconcile such an approach with support for an organization like the European Union, which exercises significant public power, and which we should therefore be able to hold accountable in a court. In other words, Somek’s argument is only convincing if we are – for example for democratic reasons – opposed to supranational lawmaking by the EU more broadly. This is, of course, a perfectly legitimate position, but it is not mine and would in any event take us beyond the scope of this book and into much broader debates.
As we have seen, the first Solange-decision represents an argument from failure, and indeed one we can normatively defend. By expanding its jurisdiction to cover European law, the German Court responded to the fact that European law was considered to prevail over domestic constitutional law (and thus rights) while no European rights review mechanism existed at the time. Together, those two developments had opened up a gap in the European legal framework, leaving individuals without access to justice when it came to rights violations. It also bears emphasizing that the 1970s were very much the time when the German Constitutional Court had firmly established its jurisprudence, closing a range of traditional domestic loopholes where rights review had previously been considered inappropriate.Footnote 75 Expanding this approach to the European Communities clearly fit with this line of jurisprudence. Nor could considerations of functionality, necessity and costs really be seen as decisive against such a move. True, claiming jurisdiction over European law in cases of rights violations did limit the supremacy of European law. It also introduced risks of fragmentation into a system that the CJEU had designed to guarantee the uniform application of European law. Those were potential costs of the Court’s decision. Yet, to say that these outweighed the need to fill a gap in rights protection seems awkward, not just from a rule of law perspective but also in light of the fact that the Union owes its power to Member States who are constitutionally bound to ensure the fundamental rights of their citizens. As a result, the first Solange judgment in many ways appears as an exemplary and legitimate use of an argument from failure.
8.4.1.2 Systemic Deficiencies
In contrast, the concept of systemic deficiencies represents no clear-cut case of an argument from failure. The refusal to deliver a person to another Member State in line with existing regulatory arrangements due to risks of rights violations, be it as a matter of the European Arrest Warrant or the rules on migration, raises first and foremost questions of evidence. More precisely, the key question is whether there is sufficient evidence to suggest that the migrant’s or arrested person’s rights will be violated if they are brought into the jurisdiction of another Member State. Thus, the case involves a conflict of norms where primary law and thus fundamental rights must prevail over the regulatory framework of EU secondary law setting out Member States’ respective obligations and responsibilities. Things are only complicated by the fact that it was not actually clear in the cases at hand that individual rights would be violated: hence, the question of evidence.
And this is where the principle of mutual trust comes in, which the CJEU has elevated to a constitutional principle.Footnote 76 More precisely, the CJEU had previously argued in its case law that regulatory cooperation between Member States would no longer be feasible in practice if officials in one state would standardly scrutinize official behaviour in others because they distrusted their application of EU law. Given existing biases and prejudices towards other Member States, this concern does not seem altogether misplaced. Setting aside the default of mutual trust thus requires strong arguments, while it seems equally clear that mutual trust cannot be limitless, given a sufficiently high risk of rights violations. The question then is how high that risk has to be and whether it needs to be assessed in general or individualized terms. The concept of systemic deficiencies serves here, on the one hand, to overcome the default of mutual trust, and thus, as an argument from failure in some ways. But it also provides a more straightforward tool for assessing factual risks, which suggests that framing the issue in terms of an argument from failure is not entirely appropriate.
Nevertheless, very much in line with what we would expect if we treated this as an argument from failure, the European Court of Justice has adopted a proportionality approach in these cases. Thus, the Court emphasized that ‘minor infringements of EU law’Footnote 77 would not allow for the suspension of Dublin transfers. By contrast, violations of absolute rights under the European Convention, from which no derogation is possible, are sufficient, as violations of absolute rights under the European Charter of Fundamental RightsFootnote 78 warrant the suspension of mutual trust,Footnote 79 if the deficiencies in the protection of these rights were ‘systemic or generalised, or which (…) affect certain groups of people, or (…) certain places of detention’.Footnote 80 In another decision, the CJEU also seemed to suggest that a violation of the essence of a fundamental right, in this case the right to fair trial, would suffice if it constituted a violation of the ‘essence of the rule of law’.Footnote 81
From a rule of law perspective, this is problematic insofar as this approach accepts that some, albeit minor, rights violations may be tolerated in the interest of enabling the functioning of the EU’s regulatory framework. There has accordingly been some debate in the literature about how to define the concept of systemic deficiencies in a way that balances the need for trust, on the one hand, and the need to prevent rights violations, on the other.Footnote 82 Insofar as it is hard to provide an individual risk assessment without relying on broader background conditions, factors like quantity, time and quality may help here to assess how problematic the situation is and how real the risks for individual plaintiffs are upon their return to the country in question. It is important, however, not to establish hurdles that are too high. The focus must be on the risk for individuals in these cases rather than an abstract assessment – and this, once again, suggests that treating the concept of systemic deficiencies as an argument from failure somewhat misses the point.
Nevertheless, the idea of ‘systemic deficiencies’ in the court’s jurisprudence is interesting because it turns the tables on the EU’s prevalent efficiency discourse. If arguments from failure were underlying the trope of the effet utile and the expansion of EU competences at the cost of Member States, the concept of systemic deficiencies operates in the opposite way: by stopping cooperation, thus placing the achievement of the EU’s regulatory goals at risk. Because of this, it is not surprising that the CJEU has been wary of defining the concept too broadly, and still treats mutual trust as the default in Europe. By invoking the idea of systemic deficiencies, the CJEU also reverts to an internationalist rather than a supranational paradigm. It sees individual states as ultimately responsible for protecting the fundamental rights of individuals, rather than working towards a European solution.
8.4.1.3 Considering Reverse-Solange
This leaves the Reverse-Solange argument. This would have the European Court of Justice act as constitutional court in cases brought by Union citizens where there are serious deficits regarding the rule of law in individual Member States with respect to certain core values and rights, as protected by Art. 2 TEU. As it stands, this proposal involves a real and explicit argument from failure. One institution – the European Court of Justice – is called upon to expand its jurisdiction to cases where it usually has no jurisdiction, as a matter of Art. 51 CFR. As such, however, it would introduce a problematic differentiation between Member States, some of whose judiciaries would be considered as insufficiently trustworthy to protect their own citizens’ rights. Bogdandy and Ioannidis’ early 2014 article on systemic deficits explicitly refers to the concept of failed states. It argues that systemic deficiencies are an ‘intermediate’ concept between ‘failed’ and ‘normal’, that is well-functioning states,Footnote 83 while drawing on the World Bank indicators, etc. to make the case for a – here still somewhat undefined – special treatment of Member States like Greece. Of course, within the EU, such a move might be more defensible. But risks of paternalism nevertheless loom large, and there is at least a whiff of neo-colonial attitudes.
In terms of our framework, the main question will be whether there is indeed room for such an argument in the context of the existing legal framework. We have already seen that the competences of the EU vis-à-vis Member States have long been understood in a flexible manner. From a subsidiarity perspective, the Reverse-Solange proposal seems in many ways a fairly natural approach. What argues against the proposal, however, is first and foremost the wording of Art. 51 CFR, as well as its drafting history. In terms of the framework developed in Chapters 1 and 2, it is doubtful that we have a sufficient gap in the law to accommodate an argument from failure.
Art. 51 of the Charter of Fundamental Rights of the European Union reads:
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. (…)
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.Footnote 84
At the time the Charter was drafted, subsection 2 loomed large in the heads of several Member States. It prompted two explicit reservations by Poland and the United Kingdom essentially restating the limit in subsection 2. What the Reverse-Solange proposal involves is therefore very close to the thing the Member States sought to avoid, namely the prospect of a generally applicable bill of rights that would have converted the Charter into a more genuine constitutional document at a time when a constitutional vision for the European Union had just been rejected in referenda in France and the Netherlands and encountered resistance elsewhere in the Union as well. All of this suggests that there is no gap in the law here that an argument from failure in the form of the Reverse-Solange proposal might fill.
Of course, the counterargument to this is that when the Charter was drafted, democratic backsliding and the rule of law crisis were not yet a major problem in the European Union. Rather, it was long assumed that once states had been accepted into the Union, they could be trusted to have a functioning and effective judicial system to protect individual rights and the rule of law. Moreover, the treaties did include some mechanisms to deal with backsliding, in particular Art. 7 TEU, but those mechanisms did not prove effective, partly for design reasons but also due to a lack of political will on the part of other governments and European institutions.Footnote 85 However, even where existing mechanisms appear insufficient to deal with a problem, it may still be the case that the legal framework in place leaves no room for an expansion of competences, and this, I believe, is the case with regard to the CJEU’s jurisdiction under the Charter.
Add to this that it would once again involve a general assessment of the state of the rule of law in specific countries, rather than with regard to specific issues. It would, thus, involve the CJEU’s judges in what will inevitably be a very broad assessment with high political stakes. Of course, the CJEU is already making some fairly broad judgments when it comes to judicial independence. But it matters whether such an assessment serves as a basis for specific findings and interventions, or whether it serves as basis for a wide expansion of the CJEU’s competences.
Nor would I be optimistic about the functionality of the Reverse-Solange proposal. It seems by no means clear that intervention by the CJEU would improve things much in the Member States, in particular since there is already a European court competent to assess human rights violations in the respective states, namely the European Court of Human Rights. While it is true that the European Court of Justice has more powerful financial sanctions at its disposal, it runs into other difficulties. Without an expansion of the procedural avenues for individual plaintiffs to bring cases, the doctrine would likely have limited impact. For there are very limited procedural avenues for individual plaintiffs to bring violations of their rights under the Charter to the CJEU on their own, only an option for domestic courts to bring a preliminary reference to the CJEU or for the Commission to bring infringement actions. In cases where domestic judiciaries have to a significant degree been captured, and where resisting judges are frequently intimidated by disciplinary procedures or administratively sidelined, many cases will therefore simply not reach the CJEU in the first place. And while backsliding in some countries has come with significant human rights violations, in particular of minorities such as the LGBTQ community or (non-white) immigrants, the broader problem is not only and perhaps not even primarily a fundamental rights issue. It is a structural problem involving the capture of independent institutions, the intimidation and/or abolition of checks and balances and the dismantling of oppositional civil society networks and media.Footnote 86 Not all of these issues can easily be litigated in fundamental rights terms. Not least, the Reverse-Solange approach would come with significant costs given its differentiation between Member States and intervention in core areas of their sovereignty.
8.5. Conclusion
Rather than further pushing the boundaries of integration through arguments from failure like Reverse-Solange, we should therefore rein in this logic in the European Union. Yes, the treaties are hard to change. Yes, legal innovation can be very difficult in a supranational context where different Member States have different interests. But functionalism and flexibility cannot be boundless. They need to come with limitations for the sake of preserving and fostering democratic legitimacy in Europe. The more the Union federalizes, the less convincing its current functionalist logic will become. This is why the continued reliance on a loose purposive approach to the interpretation of the treaties has, with Maastricht and subsequent treaties, rightfully attracted more criticism. Such limits could be drawn either by a court or chamber other than the CJEU, as Joseph Weiler and others have suggested,Footnote 87 or by a thoroughly reformed Court of Justice whose procedural and organizational design ensures greater democratic responsiveness, as suggested recently in a very interesting study by Christoph Krenn.Footnote 88 But the time for ever-more federalization in the interest of achieving certain regulatory outputs in the Union should be over – and this in turn suggests why arguments from failure might come to play a more specific and limited role in this context in the future.
Perhaps surprisingly, the CJEU’s broad purposive approach to interpretation in some respects parallels what we observe in some countries of the Global South where scholars often call for courts to set aside separation of powers concerns in the interest of bringing about certain outcomes. Of course, the goals and rights are very different; in the European Union, the goal is the realization of the common market; in Global South countries, addressing poverty is often a foremost concern. Nevertheless, we find in both contexts a strong functionalist current in the discussion, emphasizing the importance of realizing key legal rights or policy goals against a background of real and perceived failure. It is therefore perhaps not surprising that the concept of transformative constitutionalism has more recently been put forward as a way to describe the CJEU’s impact on European countries and as an inspiration for European lawyers, too.Footnote 89 As instructive as the parallels are, however, this proposal is as mistaken, for a variety of reasons. This is not so much because of the debate about whether it qualifies as a liberalFootnote 90 or postliberal concept,Footnote 91 but because transformative constitutionalism entails an imperative to change not just state structures but society more broadly, to bring it in line with constitutional values.Footnote 92 This large-scale progressive vision distinguishes it from the largely liberal and sometimes neo-liberal agenda pursued in the founding of the European Communities that sought to withdraw certain economic issues from politics in order to isolate states from political pressures for socialist changes of state and society.Footnote 93 It also does not fit a supranational setting where courts will have and should have a more restrained role. The more courts drive and enable social change towards a specific ideal of a just society, the more important it is that they are deeply connected with that society in a way that is not feasible or indeed desirable for a supranational court. Thus, EU law with its emphasis on the effective realization of certain policy goals and even individual rights can help illuminate the consequences of adopting too flexible an approach to legal interpretation and competences, where effectiveness arguments crowd out considerations of legality or the separation of powers.
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