Problem, idea and programme
The Polish government is stepping up its repression. Or so it seems. After packing the Constitutional Tribunal, dismissing more than 150 (out of 700) presidents and vice-presidents of ordinary courts, raising the overall number of Supreme Court judges, and creating new tools for cowing judges,Footnote 1 the Polish government now seems ready to instrumentalise this transformed judiciary. The freedom of political speech is a main target.
Possible evidence can be found in the proceedings against Wojciech Sadurski: for his vocal criticism of the current Polish government,Footnote 2 Sadurski, a renowned law professor at the Universities of Sydney and Warsaw, is facing a range of legal proceedings. The governing Law and Justice Party (PiS) is suing Sadurski for civil defamation because he called it an ‘organised criminal group’. In addition, the state-run public broadcaster (TVP) has pressed for defamation charges both under civil and criminal law, after Sadurski accused them of ‘Goebbelsian’ propaganda practices.Footnote 3 Similarly, TVP filed a lawsuit against Polish Ombudsman Adam Bodnar as a private individual following a statement made shortly after the assassination of the mayor of Gdansk. Bodnar indicated that one motivation for the assassination could have been TVP’s biased reports suggesting, inter alia, a connection of the mayor to Nazis and Communists and his involvement in corruption. Although the case was dismissed in first instance by the District Court of Warsaw, it has not been ruled out that TVP will appeal the case.Footnote 4
The focus of this article is not to settle whether Bodnar’s or Sadurski’s statements are protected by free speech under Union law; for that, we do not have enough evidence. Rather, we will discuss novel responses of Union law to such a development and to illiberal tendencies more generally. These responses have one thing in common: they all aim to put Article 2 TEU values into judicial practice. Under this premise, our argument will be divided into two parts. First, we identify what national judges can and must do when Article 2 TEU values are at stake (see infra under the heading ‘Novel ways of protecting essential rights’). We expand the status quo in three respects: a duty to interpret and apply national law in conformity with Article 2 TEU values, a duty to refer such cases to the European Court of Justice, and possible criminal sanctions – under national law – for disrespecting Union values in domestic procedures. To some, these responses will seem far-reaching. We will, therefore, justify them in a second step within the framework of the Reverse Solange doctrine (see infra under the heading ‘Legal framing via the Solange doctrine’). This doctrine provides the grounds for protecting Article 2 TEU values against unexpected challenges by authoritarian tendencies while maintaining the European federal balance. To this end, we recall the basics of the doctrine and show how the judicial applicability of Article 2 TEU can be construed. At the same time, this newly activated Article 2 TEU is both substantially restricted to the drawing of red lines and subject to a presumption of value compliance.
It should be stressed: we do not claim that this is the law as it stands or its only possible interpretation in light of the situation it faces. The task of legal scholarship, however, is not only to describe the law as it stands, or to criticise it, but also to show possible paths of legal development. This applies especially to situations of new and unprecedented challenges which allow a plethora of different responses. In this light, our proposals present one possible development of the law, one which is coherent with the path of European law, supported by relevant precedent, and covered by the legal mandate of the European Court of Justice in light of the challenges the Union is facing.
Novel ways of protecting essential rights
Freedom of speech as an EU value
Proceedings against critics like Bodnar and Sadurski are not an internal Polish but a European affair, as they affect the basic order of the European Union. They fall squarely into the situation addressed by the proposal of the European Commission for a decision under Article 7(1) TEU to determine ‘a clear risk of a serious breach’ of EU values. Though we cannot fully qualify the aforementioned cases, it seems likely that judicial proceedings against individuals expressing opinions – including offensive ones – on Polish public issues violate free speech under EU law.Footnote 5
Of course, the EU Charter of Fundamental Rights protects the freedom of expression (Article 11 CFR) only within the scope of Union law (Article 51 CFR). Nevertheless, the essence of this freedom is also protected by the values of ‘human rights’, ‘rule of law’ and ‘democracy’ enshrined in Article 2 TEU.Footnote 6 As explained by the European Court of Human RightsFootnote 7 and by the European Court of Justice in Tele2 Sverige, the freedom of expression is of ‘particular importance … in any democratic society’. It ‘constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded’.Footnote 8 This applies particularly to the essentials of this fundamental right – such as political speech. In this sense, the European Court of Human Rights constantly holds that ‘there is little scope … for restrictions on political speech or on debate on questions of public interest’Footnote 9 including ‘the functioning of the judiciary’.Footnote 10 Thus, if a member state violates this ‘essential foundation’ of free political speech, it crosses a red line that delineates its very membership in the Union.
It should be noted that the limits of Article 51 CFR do not apply to Article 2 TEU and the values enshrined therein. As Advocate General Tanchev noted concisely:
The limits inherent in the Charter, to the effect that it only applies to Member States when they are implementing EU Law (Article 51(2) of the Charter) cannot be taken so far as to attenuate the duty … to protect the fundamental values of the Union expressed in Article 2 TEU …Footnote 11
Therefore, relying on the ‘essence’ of a fundamental right under Article 2 TEU makes a great difference. To the extent that the freedom of expression falls under Article 2 TEU, political speech is protected under Union law against any measure of their home country that seriously infringes this value.Footnote 12 This includes any judicial proceeding in Poland.
The duty to interpret national law in conformity with Article 2 TEU values
What does that mean for national officials involved in judicial proceedings against critics? Poland has not yet enacted specific laws targeting critical voices. Judicial proceedings are likely to rely on general laws, be it torts in private law (like slander), defamation in criminal law, or general clauses of disciplinary law. Given the openness of such general provisions, a judge can interpret and apply them in such a way as to sanction critical pronouncements.
Here, EU law steps in: its applicability and primacy in domestic proceedings bars such interpretation. This flows from the general EU principle that any domestic judge has to interpret and apply domestic law in conformity with EU law.Footnote 13 Today, this includes the Union’s common values enshrined in Article 2 TEU. Therefore, any member state judge has a duty to interpret any national law in conformity with Article 2 TEU values.Footnote 14 Of course, the applicability of European values has been doubted. In two recent Grand Chamber decisions, however, the European Court of Justice determined that European values are to be applied by domestic courts, in particular when they protect the essence of a fundamental right (see in more detail infra under the heading ‘The judicial applicability of Article 2 TEU values’).Footnote 15 Hence, all national law, including domestic criminal, disciplinary, and private law, must be interpreted in light of European values, thereby protecting political free speech.
The same logic applies to a law explicitly permitting charges against a politically inconvenient person. An example can be found in the Hungarian laws directed against ‘enemies’ like the Open Society Foundation or the Central European University.Footnote 16 If a domestic judge interprets and applies such laws, he or she has to set it aside to the extent that it stands in conflict with a European value. This holds true for any official called upon to execute such a judicial decision or detention measure violating this freedom.Footnote 17
A duty of referral when Article 2 TEU is at stake?
By giving such directions to national judges, Union law puts them in a difficult position, in particular in countries where the government’s respect for judicial independence is low. Yet, a national judge does not stand alone but finds support in the European union of courts. Indeed, many Polish courts have turned to the European Court of Justice to support their independence. To further shield such judges, we hold that a national judge concerned with procedures brought against critics – or generally with cases in which Article 2 TEU values are at stake – is not only empowered but required under Union law to make a preliminary reference to the European Court of Justice. This duty rests on a seminal legal development: the protection of the Union’s values has become as important as the uniform application of Union law.
Generally, only courts of last instance are under an obligation to make a reference when the application of EU law in the case at hand is surrounded by uncertainty (see Article 267(3) TFEU). According to the decision of the European Court of Justice in Foto-Frost, this obligation extends to lower courts where they doubt the validity of a provision of EU law.Footnote 18 Before setting this provision aside, they have to refer the question of validity to the European Court of Justice. The underlying rationale is to preserve the effective and uniform application of EU law, which has been the Court’s guiding star during the past six decades.
Now, with Opinion 2/13,Footnote 19 Associação Sindical dos Juízes Portugueses (ASJP),Footnote 20 Achmea,Footnote 21 L.M.,Footnote 22 and Wightman,Footnote 23 the European Court of Justice has complemented this functional rationale with an axiological one. Today, ‘values’ figure as prominently as ‘uniform application’ and effet utile in the European Court of Justice’s constitutional jurisprudence. Recognising the EU as a veritable ‘Union of values’, the Court forcefully protects its very foundations against the unprecedented challenges of the illiberal turn taken by some member states. In light of this new axiological rationale, the triad of Article 2 TEU, common values, and mutual trust stands on par with the triad justifying Foto-Frost – unity, coherence, and effet utile. We therefore suggest complementing the Foto-Frost logic: a national judge has not just the right but the outright duty to refer a case whenever the common value basis is in danger. Accordingly, a Polish judge, when faced with a case concerning the systematic silencing of critics, must refer the matter to the European Court of Justice and request an interpretation of Article 2 TEU in light of the rights at stake.
At first glance, such a duty seems to expand the European Court of Justice’s reach immensely. However, a duty to refer cases to the European Court of Justice whenever the common value basis is in danger does not mean that a national judge has to refer every potential violation of an Article 2 TEU value to the Court. As we will explain later, Article 2 TEU is triggered only in exceptional situations and is subject to a rigid presumption of conformity (see infra under the heading ‘Maintaining the federal balance’). Thus, the proposed duty to refer applies in very limited and extreme cases – it remains an exceptional obligation. Further, the proposed duty to refer not only entails a (limited) expansion of the European Court of Justice’s reach; it should also support judges in difficult situations. Judges handling sensitive cases might be intimidated by political pressure or the threat of disciplinary measures (one need only remember the newly established disciplinary chamber at the Supreme Court).Footnote 24 The European Court of Justice might shield those judges from governmental pressure, especially with the help of precautionary measures. As the interim measures in Commission v Poland have shown, the Polish government remains responsive to this basic layer of the European rule of law.Footnote 25
But why does it have to be a duty? One could argue that leaving the decision to seek support from the European Court of Justice to the discretion of each judge is enough to protect them against external pressure. As courts in Łodz and Warsaw have proven, national judges deliberately seek the European Court of Justice’s support.Footnote 26 These judges are confronted with issues sensitive to the Polish government. They fear being subjected to disciplinary measures should they decide against the government and see their judicial independence at stake.Footnote 27 Therefore, they have asked the European Court of Justice, based on its findings in ASJP, whether the newly introduced disciplinary measures for ordinary courts are in conformity with Article 19(1)(2) TEU, Article 47(1) CFR, and Article 2 TEU. As such, the mere possibility of being able to grasp the ECJ’s helping hand appears to be enough.
Yet, two reasons seem to make a duty of referral necessary: first, cases in which Article 2 TEU is at stake affect the Union’s foundations and the basis for mutual trust between the member states. It cannot be left to a national court to unilaterally shape these foundations. This task can only be exercised coherently and uniformly by the highest court of the Union. Further, a duty protects national judges much better than discretion. The Polish government has already challenged the constitutionality of Article 267 TFEU as far as it regards the internal organisation of the judiciaryFootnote 28 and initiated disciplinary measures against judges referring to the European Court of Justice.Footnote 29 Establishing a duty to refer would be a powerful response to any attempts to prohibit such references.
The last resort: criminal liability for disrespecting union values
But what happens if a judge does not respect the values enshrined in Article 2 TEU and silences critics with his or her decisions? Indeed, quite a few judges owe their position to the recent overhaul of the Polish judiciary and are considered to be sympathetic to the government’s agenda. We argue that if they severely and knowingly disrespect the primacy of Union law, they could face criminal liability. Why?
Let’s take a step back: severely and knowingly exceeding public powers, especially as a judge, is sanctioned in most legal orders.Footnote 30 The relevant provisions of the Polish Criminal Code provide a good description of the various forms this may take. For example, Article 231(1) punishes the general excess of authority: ‘A public official who, by exceeding his or her authority, or not performing his or her duty, acts to the detriment of a public or individual interest, is liable to imprisonment for up to three years’. This includes – under strict conditions – also the activity of judges.Footnote 31
Without a doubt, judges can err. As such, not just any judicial decision violating the law is per se a perversion of justice. Indeed, non-accountability is a core element of judicial independence. According to Advocate General Ruiz-Jarabo Colomer, ‘impartiality and independence are fragile virtues which must be very rigorously protected’.Footnote 32 An independent judiciary is not only a manifestation of the separation of powers but also an inherent component of effective judicial protection.Footnote 33 At the same time, this independence is in continuous conflict with a judge’s obligation to observe the law. A careful balance has to be struck between these competing elements.Footnote 34 Even if different standards apply in each member state, it is obvious that the criminal liability of judges can apply only ultima ratio – it is confined to very exceptional cases. Further, special procedural safeguards must be in place. This is particularly true in Poland, where judicial immunity is explicitly enshrined in the Constitution (see Articles 173, 180(1) and (2) and 181 of the Polish Constitution).Footnote 35
How does this relate to Union law? At first sight there are two ways to construe this argument: first, EU law is an independent source of law in national procedures. The principles of primacy and direct effect require a domestic judge to directly apply EU law and eventually to disapply or re-interpret conflicting national laws. Thus, it makes no difference whether a national judge disregards national or Union law – both are equally capable of triggering the criminal liability of a judge. Second, according to an established line of jurisprudence, ‘infringements of EU law must also — at the very least — be punishable under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance’.Footnote 36 This member state obligation is ultimately a specific expression of the principles of effectiveness and equivalence. In short, this means: ‘Member States are required … to penalise any persons who infringe [Union] law in the same way as they penalise those who infringe national law’.Footnote 37 If – under national criminal law – the deliberate disregard of constitutional law or a verdict of the constitutional court is a criminal offence, then the same must apply in cases where a national judge knowingly disregards EU law or, specifically, a judgment of the European Court of Justice delivered in the case at hand.
What are the applicable standards? Determining the thresholds for the criminal liability of judges – even if they disregard Union law – is a matter of national criminal law. Yet, EU law can provide some inspiration for the applicable standards: one need only recall the European Court of Justice’s Köbler jurisprudence, which limits the action for damages for the disrespect of Union law to a ‘manifest breach of the case-law of the Court in the matter’.Footnote 38 If this standard already applies to state liability, then the personal criminal liability of judges must be subject to even higher thresholds. A limit will be probably reached where a judge severely and knowingly violates the applicable law to the detriment of a party in the proceedings. To clarify this with an example: Let’s assume a Constitutional Court decides to strike down a specific law or to declare a certain interpretation of that law as unconstitutional. If judges knowingly disregard these dicta and continue to apply said law (or the unconstitutional interpretation thereof) to silence government critics, they exceed their powers and trigger their criminal responsibility.
When is this threshold reached with regard to EU law? A ‘severe’ infringement will be unlikely to occur in the day-to-day application of EU law. The threshold could be reached when Article 2 TEU values are violated.Footnote 39 Admittedly, these values are vague and open and thus difficult to apply. However, this neither excludes their legal nature nor their judicial applicability.Footnote 40 Accordingly, national law must be applied and interpreted in a way that complies with Article 2 TEU.Footnote 41 This includes the shape and form that these values have acquired through the European Court of Justice’s interpretation. The Court’s interpretation of EU law – articulated in preliminary rulings – has legally binding force.Footnote 42 Therefore, the disregard of a consolidated European Court of Justice jurisprudence is unlawful unless it is referred to the Court again.Footnote 43 As such, the values of Article 2 TEU in their interpretation by the European Court of Justice represent a suitable starting point for national provisions establishing the criminal liability of judges. In addition to these high substantive requirements, there will be considerable difficulties in proving the intention of the judge concerned, i.e. to substantiate that he or she knew the relevant law and deliberately disregarded its effects. Due to the uncertainties surrounding the complex interplay of Union and national law, a simple error of law will be difficult to exclude in most cases. Determining this intention falls to the trial judge. But here again, actions by European institutions will be important: if a Polish judge knowingly disrespects a European Court of Justice decision that protects free speech in the case at hand, a red line and, in all likelihood, the threshold of criminal liability are crossed. Hence, pronouncements of the European Court of Justice are key. For that reason, the European Commission should follow the situation closely and initiate infringement proceedings in a timely manner, in a way that a decision of the European Court of Justice can trigger the effects sketched above.Footnote 44
What does that mean for cases like Bodnar and Sadurski? By interpreting the respective legal basis for slander or defamation in a way that bluntly violates the freedom of speech as enshrined in Article 2 TEU, a judge disregards these values. In our view, such a decision would not only violate Article 2 TEU but might also infringe the principle of nulla poena sine lege. This principle is enshrined in the Universal Declaration, Article 15 ICCPR, Article 7 ECHR, Article 49(1) CFR, and, not least, Article 42(1) Polish Constitution. Its importance to the European legal order has recently been stressed by the Taricco saga.Footnote 45 It is not only infringed when a legal basis is missing (meaning: non-existentFootnote 46) but also in cases of arbitrary judicial interpretation of said basis. According to the European Court of Human Rights, ‘Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen’.Footnote 47 An interpretation of a provision as criminalising political speech protected under Article 2 TEU would be neither consistent with the essence of the offence nor foreseeable. If there is, on top of this, a decision of the European Court of Justice protecting the freedom of expression in the specific case, the respective judge’s criminal liability could not be ruled out.
Two fundamental objections to these conclusions could be raised: first, the criminal liability of judges for infringements of Union law could be understood as an inadmissible harmonisation of the substantive criminal law of the member states. The exercise of criminal justice is a competence firmly in the hands of the member states, and so it remains in our proposal. Violating EU law severely and knowingly is only a point of reference for national offences stipulating the criminal liability of judges. It neither extends the competences of the Union institutions nor influences the substantive criminal law of the member states.
Second, our proposal could have unforeseeable implications for the relationship of national judges and the Union legal order. The trust of national courts in EU law and their essential cooperation with the Court of Justice could be severely damagedFootnote 48 and its authority dangerously undermined.Footnote 49 However, there are two rejoinders to such a threat. On one hand, the criminal liability of judges, as shown above, is limited to extreme cases and only applies under very narrow conditions. On the other hand, criminal proceedings against judges deliberately violating Union values are part of a national process to restore the rule of law. These trials are conducted before national courts in accordance with national criminal law. After all, such proceedings could be used to counter a frequently voiced criticism: some have identified the one-sided ‘judicialisation’ of politics in the context of the EU’s eastward enlargement as a central cause for the emergence of populism and its thrust against a ‘pathologically’ strong judiciary.Footnote 50 The critical reforms are seen as reactions to the ‘rise of the unelected’ favoured by the EU: an all too strong judiciary that has lost its feedback to the democratic process and is not accountable to anyone. The criminal liability of judges violating the Union’s common values would send a clear signal that there are also red lines for the judiciary: the values enshrined in Article 2 TEU.
Admittedly, it seems rather unlikely that judges or politicians who severely and knowingly violated Union values will face prosecution anytime soon. But no government lasts forever. Biased public officials can be held accountable once the political landscape has changed. Such criminal proceedings do not constitute an unacceptable ‘victor’s justice’ if they are pursued in a manner that is itself respectful of the Union’s common values.Footnote 51 As such, they might be an important tool to re-establish a judicial system in line with the rule of law.Footnote 52 Certainly, the illiberal tendencies in Poland or Hungary are not close to reaching the level of injustice of totalitarian regimes yet. In this respect, we can only hope that our final conclusion will remain a hypothetical thought experiment and that the persecution of government critics will not develop any systematic traits. If this should happen, however, Union law and (in the long run) national criminal law will provide the starting points for a powerful response.
Legal framing via the Solange doctrine
These proposed ways have one thing in common: they are aimed at putting Article 2 TEU values into judicial practice. Nevertheless, it is evident that such proposals could potentially uproot the federal balance established by the Treaties to the detriment of national autonomy, identity and diversity. A massive power shift to the Union should be avoided, not least because it would threaten the Union itself as vigorous national countermeasures would be likely.
We think that the Reverse Solange doctrine provides a fitting legal justification and reconstruction of our proposals, as it succeeds in judicially applying Article 2 TEU against the unexpected challenges by authoritarian tendencies while maintaining the European federal balance, i.e. the order of tasks and competences between the EU and its member states epitomised by Article 51(1) CFR. In the following, we will first present the Reverse Solange doctrine (see infra under the heading ‘The doctrine’s basic logic and elements’) and concentrate on one of its central premises: the judicial applicability of Article 2 TEU. Taking into account recent case law of the European Court of Justice, we will demonstrate how a judicial application of Article 2 TEU can be construed (see infra under the heading ‘The judicial applicability of Article 2 TEU values’). So as not to compromise the federal balance, Article 2 TEU is subject to very high substantive standards. Furthermore, a Solange presumption in favour of member state compliance applies, which is only rebutted if a high threshold has been transgressed (see infra under the heading ‘Maintaining the federal balance’).
The doctrine’s basic logic and elements
The Reverse Solange doctrineFootnote 53 emerged in 2012 to confront severe restrictions on media freedom in Hungary under Union law – restrictions which, although beyond the scope of the CFR, put the very terms of membership (Article 49(1) TEU) into question. The doctrine was conceived because responses by the Council of Europe appeared too weak and an Article 7 TEU response too remote.
Much has happened since 2012. On the one hand, national measures of the Hungarian type have become ever more frequent, amounting to a larger illiberal turn. The aforementioned proceedings against Bodnar and Sadurski are just the tip of the iceberg. Today, such measures are threatening the Union’s values on a systemic scale: if not confronted, they might even start informing the values of Article 2 TEU, thus affecting the Union’s very nature.Footnote 54 On the other hand, there are the European Court of Justice’s path-breaking pronouncements confronting such developments, a general deepening of the constitutional character of Union law as well as a blossoming of judicial cooperation in the European legal space. Against this backdrop, the Reverse Solange doctrine will justify our proposals as well as the Court’s pertinent case law and counter fears of an illegal or illegitimate competence creep.
At its heart, the doctrine shows how any court in the European legal space, including the Court of Justice, can scrutinise any national measure by relying on the standards of Article 2 TEU. The basic idea is to put the Union’s weight behind national institutions and citizens resisting such restrictions. So as not to upset the federal balance epitomised by Article 51 CFR, the doctrine categorically limits such scrutiny to situations which threaten essential norms, i.e. the values of the EU. Nevertheless, the doctrine provides for some level of general applicability for the Charter of Fundamental Rights, namely to the extent that the essence of a Charter right substantiates an Article 2 TEU value.
Like the Italian controlimiti doctrine,Footnote 55 any Solange doctrine is about articulating and protecting essential conditions for cooperation between distinct legal orders. This doctrine was originally formulated by a national institution (the German Constitutional Court) operating under a national constitution against acts of a supranational institution (the European Community).Footnote 56 Yet, the concept is not limited to that vertical relationship but allows to be applied to practically any context involving cooperation between legal orders.Footnote 57 In this sense, the logic can be applied in the form of a horizontal Solange doctrine to the cooperation between member states.Footnote 58 As the judgments in Kadi Footnote 59 (EU-UN Security Council) or Bosphorus Footnote 60 and Avotins Footnote 61 (ECHR-EU) demonstrate, the doctrine also extends to the diagonal relationship between supranational and international organisations. A Solange doctrine, which is based on Article 2 TEU, concerns the relationship between the EU and its member states. It functions in exactly the opposite way as the original model and can, therefore, be referred to as the ‘Reverse Solange doctrine’.
As with all Solange doctrines, Reverse Solange’s very function is to frame the basic relationship between interconnected but autonomous legal orders by articulating and protecting essential conditions for cooperation. Cooperation can go ahead ‘as long as’ (i.e. solange) these essentials are met. The inner structure of most Solange doctrines, including Reverse Solange, consists of three elements. First, essential standards defined by one legal order (A) are applied to acts of another legal order (B) as a prerequisite for cooperation. Second, the doctrine presupposes that the courts of legal order A are empowered to review acts of legal order B with regard to whether they meet those standards. Third, building on the seminal Solange II decision of the German Federal Constitutional Court, most doctrines, including Reverse Solange, establish the presumption – in legal order A – that acts emanating from legal order B comply with those standards. This presumption facilitates cooperation, not least by setting a high threshold for its rebuttal. Its very creator, the German Federal Constitutional Court, has thus far never interrupted cooperation.
The doctrine’s genius results from combining two seemingly opposite logics: on the one hand the pluralist premise that the cooperating legal orders remain diverse; on the other, the constitutionalist and even axiological premise that some standards cannot be forgone. How does the doctrine achieve this balance? First, by setting a high threshold to rebut the presumption of conformity, and second, by concentrating only on the essential preconditions for cooperation, i.e. the ‘Geschäftsgrundlage’ underlying the actual cooperation. With regard to the EU and its member states, this includes the conditions of membership set out in Articles 2 and 49 TEU in particular. Accordingly, Reverse Solange looks at member states through the prism of a different rationale than the Charter of Fundamental Rights. The dominant logic of the latter’s application to the member states is to safeguard the uniform application of Union law.Footnote 62 In this sense, it has gained currency in the day-to-day legal operations under Union law. By contrast, the Reverse Solange doctrine regards the essential values upon which those day-to-day operations are based (Articles 2 and 49 TEU). It only applies to exceptional circumstances.
With regard to EU fundamental rights, the Reverse Solange doctrine operates as follows: beyond the scope of Article 51(1) CFR, any member state remains autonomous in its fundamental rights protection as long as (Solange) the presumption holds that it respects the essence of fundamental rights enshrined in Article 2 TEU. All courts in the EU are competent to police this presumption. If the presumption is rebutted, the EU mechanisms for protecting the Union’s common values apply.
Yet, the doctrine rests on one critical premise: it presupposes the judicial applicability of Article 2 TEU values. Such application is not a given and needs to be carefully construed. Although it seems uncontested that the values of Article 2 TEU apply to any act by any member state irrespective of any other link to EU law,Footnote 63 it is much less clear if and how the values of Article 2 TEU have legal and justiciable effects. The following section will address these uncertainties and demonstrate how the judicial applicability of Union values can be construed.
The judicial applicability of Article 2 TEU values
Questions of method
It is not self-evident that Article 2 TEU values extend justiciable legal effects. Some even doubt their status as law.Footnote 64 Such doubts are hardly convincing. The values of Article 2 TEU are laid down in the operative part of a legal text – the TEU. They are applied in legally determined procedures by public institutions (see Article 7, 13(1) or 49(1) TEU) and their disregard leads to sanctions, which are of a legal nature.Footnote 65 Indeed, the legal framing of the Union’s values seems almost inevitable: the rule of law warrants that normative requirements enforced by public institutions are laid down in the form of law. Otherwise, the mechanisms of Article 7 or 49 TEU would provide purely political morality with public authority without making them subject to any constitutional checks and balances.Footnote 66 That would be irreconcilable with the democratic rule of law. Therefore, Article 2 TEU values are necessarily part of EU law.
Certainly, the values enshrined in Article 2 are vague and open.Footnote 67 In this sense, Article 2 TEU falls short of the criteria established by the original doctrine of direct effect which requires a Treaty provision to be precise, clear and unconditional.Footnote 68 But as legal integration has deepened, these requirements have subsequently been relaxed. Today, the European Court of Justice’s jurisprudence rests on the presumption, shared by national courts, that a provision of EU law is directly applicable by all courts.Footnote 69 However, we do not claim that all values of Article 2 TEU are directly applicable as such. Rather, following the pertinent case law and a more cautious path, we suggest applying Article 2 TEU only in combination with other Treaty provisions.Footnote 70
Indeed, to avoid applying Article 2 TEU directly, the initial Reverse Solange proposal built on the directly applicable Article 20 TFEU, as interpreted in the European Court of Justice’s citizenship case law culminating in Ruiz Zambrano. In this decision, the Court established that Union citizens can invoke the ‘substance’ of their citizens’ rights even in situations without any cross-border element.Footnote 71 Our key idea was to interpret this ‘substance’ of citizenship as encompassing the ‘essence’ of human rights as enshrined in Article 2 TEU.Footnote 72 Without directly relying on Article 2 TEU, the Court would indirectly be empowered to assess value compliance in the member states as part of the ‘substance’ of Union citizenship. This provided a path to judicially enforce the framers’ decision laid down in Article 2 TEU while respecting the limits enshrined in Article 51(1) CFR.
At the time, we expected the Court to develop its citizenship case law further and thereby strengthen the jurisprudential ‘hook’ of the Reverse Solange doctrine. This did not happen.Footnote 73 Rather, in what some scholars have even termed ‘reactionary’,Footnote 74 the Court started construing the ‘substance’ of citizen’s rightsFootnote 75 and their right to equal treatment restrictively.Footnote 76 Accordingly, a strong jurisprudential ‘hook’ for the Reverse Solange doctrine must be found elsewhere. This is not difficult. In the following, we will show that the Court has been anything but inactive when it comes to operationalising Article 2 TEU.
As indicated, the Court recently started complementing the Union’s traditional, rather functionally oriented rationale – consisting of autonomy, direct effect, primacy, and effet utile – with a more normative, truly constitutional, even axiological one: in Opinion 2/13, ASJP, Achmea, L.M., and Wightman, ‘values’ took centre stage. The reference to Article 2 TEU goes far beyond stylistic embellishment or mere ‘constitutional iconography’:Footnote 77 what we are witnessing is the activation of Article 2 TEU values in the face of unexpected challenges. Today, the edifice of Union law rests on two pillars. The judgment in ASJP, in particular, represents a veritable stepping stone towards a ‘Union of values’ as important as van Gend en Loos and Costa/ENEL. To fend off the possible critique that it turns Article 2 TEU into the freestanding and unpredictable core of a centrifugal, member states-devouring constitution, the Court combines Article 2 TEU with other Treaty provisions. This leads to a much more predictable, but still powerful effect against illiberal tendencies through the ‘mutual amplification’ of the combined provisions.Footnote 78
Yet, the expansive dynamic of ‘mutual amplification’ begs the question of whether such interpretation of EU provisions is within the law. However, to interpret any provision of a legal order consistently with other provisions, and in particular, in light of its basic principles, is part and parcel of the established method of systematic (or contextual) interpretation.Footnote 79 Dynamic evolution of the law is to be expected in a dynamic society, in particular from an apex court in a situation where its legal system is facing unprecedented challenges. An interpretation of EU law, including EU primary law, in light of the Article 2 TEU values is an accepted method of interpretation under Article 19(1)(2) TEU. How the Court operates is best demonstrated by its judgment in ASJP.
Value-oriented interpretation
ASJP concerned a salary reduction for Portuguese judges based on a memorandum of understanding concluded in the context of the Eurozone crisis. A Portuguese court asked the European Court of Justice whether the salary reduction violated the principle of judicial independence. The situation was beyond the ambit of the Charter (and especially Article 47 CFR)Footnote 80 and presumably beyond the scope of EU law as traditionally perceived. In this sense, the Court could have declared the case inadmissible and ASJP would have disappeared discreetly as another clarification of the meandering post-Åkerberg Fransson case law. Yet, this is not what happened. The Court relied on Article 19(1)(2) TEU, which stipulates that ‘member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Effective legal protection presupposes, so says the Court, an independent judiciary.Footnote 81 Read in this light, Article 19(1)(2) TEU contains a general obligation for the member states to ensure judicial independence ‘in the fields covered by Union law’.Footnote 82
These ‘fields’ are very broad. Importantly, the Court applies Article 19(1)(2) TEU ‘irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1)’.Footnote 83 Article 19(1)(2) TEU thereby has a much broader scope of application than the Charter.Footnote 84 While the Charter is limited to situations in which EU law is actually applying,Footnote 85 Article 19(1)(2) TEU concerns all ‘fields covered by Union law’. Stressing this semantic difference, Article 19 TEU, in the Court’s reading, embraces any national court that at some point might use the preliminary ruling mechanism under Article 267 TFEU: ‘[T]hat mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence’.Footnote 86 ‘Responsible for applying EU law’ includes all authorities that potentially find themselves applying it.Footnote 87 Given the breadth of Union law today, it is hard to imagine that any member state court is outside those ‘fields’. Thus, the entire national judiciary has to be in line with the EU value of the rule of law.
This seminal interpretation needs justification beyond its semantic compatibility with Article 19(1)(2) TEU. Indeed, ASJP can be doctrinally reconstructed along the lines of both a functional as well as the Union’s axiological rationale.
The Court certainly employs the well-established effet utile rationale to justify the ample scope of Article 19(1)(2) TEU. First, the Court refers to the functioning of the preliminary reference procedure in Article 267 TFEU. National courts have an indispensable position in the effective and uniform application of EU law.Footnote 88 As they are obliged to apply EU law over national law, they are also ‘Union courts’.Footnote 89 Such a system cannot work if member state courts are not independent: not without reason, a key criterion for launching preliminary references has been a court’s independence.Footnote 90
Second, the rationale behind Article 19(1)(2) TEU supports the Court’s findings.Footnote 91 There has been serious criticism that the barriers to individual legal protection under Article 263(4) TFEU are too high.Footnote 92 Instead of relaxing these locus standi criteria, however, the drafters of the Lisbon Treaty opted for a strengthened decentralised judicial system based on the cooperation between the ECJ and member state courts.Footnote 93 Individuals are generally not provided with ‘supranational justice’Footnote 94 directly before the European Court of Justice but need to go through member state courts. The function of Article 19(1)(2) TEU is to ensure that this bifurcated judicial system works and that no protection gaps open within the EU legal space.Footnote 95 This implies supranational standards regarding the national judiciary, its remedies and procedures.Footnote 96 Read in this functionalist light, one might consider the ASJP decision as important, but conventional – more ‘business as usual’ than a ‘tectonic shift’.Footnote 97
Yet, such a reading overlooks the Court’s additional axiological justification for the ample scope of Article 19(1)(2). The Court states that
‘Article 19 TEU […] gives concrete expression to the value of the rule of law stated in Article 2’.Footnote 98
The Court interprets Article 19 TEU in light of the values enshrined in Article 2 (in this case the rule of law) similar to how the original Reverse Solange doctrine interpreted Article 20 TFEU. Through this linkage, the vague Article 2 TEU becomes relevant. It is indirectly applied via a norm containing a specific obligation for the member states (Article 19 TEU).Footnote 99 The Court avoids the possibly contentious step of applying Article 2 TEU as a freestanding provision.Footnote 100 The genius is in combining two provisions.Footnote 101 The values in Article 2 gain legal effect via a value-oriented interpretation of a directly applicable provision, which, in turn, is read in an expansive way justified by the value in question. How does this work concretely?
At first glance Article 2’s scope would depend on the scope of its operationalising provision. If a value was operationalised by Article 19(1)(2) TEU, it would be limited to ‘fields covered by Union law’. Hence, it seems that this operation does not help to protect the role of Article 2 for any national measure.Footnote 102 Yet, in ASJP the Court derives standards of judicial independence from Article 19(1)(2) TEU which are likely to apply to any member state court. A value-oriented interpretation has the effect of justifying such a broad and demanding reading. This is the effect of a ‘mutual amplification’: Article 2 TEU becomes judicially applicable through the systematic, value-oriented interpretation of the specific provision (here Article 19(1)(2) TEU). At the same time, the value-oriented interpretation ‘charges’ the specific provision feeding on the general and foundational nature of Article 2. This ‘charging’ effect also pertains to the specific provision’s scope.
In this relationship of ‘mutual amplification’, both provisions reinforce each other. As such, Article 2 TEU and its specific ‘carrier’ can create legal obligations for the member states in what would otherwise be considered ‘purely internal situations’.Footnote 103 Of course, such an interpretation cannot and does not a priori establish the judicial applicability of any Article 2 TEU value to any national measure. However, it shows how the judicial applicability of EU values can be established in a specific case. All depends on finding a specific provision giving expression to a value enshrined in Article 2 TEU.
The Court reaffirmed this intrinsic link between Article 2 TEU and a specific provision of EU law in Commission v Poland. It stressed that ‘Article 19 TEU …. gives concrete expression to the value of the rule of law affirmed in Article 2 TEU’Footnote 104 and that the respective ‘EU law that implements those values’Footnote 105 has to be respected by the member states. Unlike in ASJP, the Court found a violation of Article 19(1)(2) TEU operationalising Article 2 TEU. In this sense, both judgments can serve as a prime example of the Court’s ‘stone by stone’ approach.Footnote 106 The Court laid the groundwork and outlined the general idea of operationalising Article 2 TEU values in ASJP. This judgment could thus be regarded as the ‘founding stone’ of an emerging line of jurisprudence. However, the Court carefully refrained from finding any violation in the case. Instead, ASJP served as a stepping stone for the infringement proceedings against Poland. Commission v Poland makes it very clear that the Court is willing to scrutinise and sanction member state actions under the newly activated Article 2 TEU.
Values and the essence of Charter rights
ASJP does not address fundamental rights. Yet, the mechanism of mutual amplification also works with regard to fundamental rights, be it via the value of ‘respect for human rights’ or via the ‘rule of law’ value, as the L.M. case demonstrates. In this case concerning a European Arrest Warrant issued by Poland, an Irish court asked the European Court of Justice to interpret the reasons justifying a denial of execution when judicial independence in the issuing country is at risk. The Court applied its two-pronged Aranyosi test: First, the Irish judge had to determine whether there were generalised deficiencies of judicial independence in Poland, and second, whether such deficiencies triggered the risk of an individual fundamental rights violation (Article 47 CFR) in the pertinent domestic criminal proceedings.Footnote 107
Although the issue of surrender is clearly within the scope of Union law as defined by Article 51(1) CFR, this is not the case for what is scrutinised under the Aranyosi test. Neither the Polish judicial reforms nor the specific domestic criminal proceedings show an evident link to EU law. Indeed, the general reforms and the concrete criminal case are even more remote than the subject matter of ASJP: a Polish criminal proceeding against a Polish citizen for possible criminal offences committed in Poland is hardly covered by Article 51 CFR as it stands.Footnote 108 Nevertheless, the European Court of Justice instructed the Irish court that it must, under EU law, review the Polish judicial reform and its impact on the case at hand.Footnote 109
Some scholars read these instructions as a narrow issue referring to the specificities of the European Arrest Warrant Framework and other mutual recognition regimes.Footnote 110 We propose reading L.M. as a much broader follow-up to ASJP. As such, the Court paved the way for assessing the Polish reforms and criminal proceedings under Article 2 TEU in combination with the essence of the fundamental right laid down in Article 47 CFR. In the central passage, the European Court of Justice stated that
judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee … that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.Footnote 111
As before in ASJP, the Court established a nexus between a specific provision of EU law (the ‘essence’ of Article 47 CFR) and the Union values as enshrined in Article 2, more precisely the value of the rule of law.Footnote 112 Therefore, the logic of ‘mutual amplification’ also applies to Charter rights in so as far as they give expression to the values in Article 2 TEU.
Questions of competence
One cannot deny that this ‘mutual amplification’ through systematic interpretation expands rather than limits the reach of EU law. For that reason, it must not only be methodologically sound but also conform with the order of competences. Indeed, there is an argument to be made that there might not be any competence for the courts and in particular the European Court of Justice to assess whether member states respect Article 2 TEU. Koen Lenaerts stresses that the Treaties have entrusted the EU’s political institutions, thus not the European Court of Justice, with the task of monitoring whether ‘there is a clear risk of a serious breach by a Member State of the values referred to in Article 2’. In fact, Article 269 TFEU limits the Court’s role to verifying the procedural stipulations laid down in Article 7 TEU.Footnote 113 Any interpretation that puts the European Court of Justice in the position which Article 7 TEU attributes to political institutions faces a high argumentative burden. For example, the Court cannot suspend a member state’s rights.Footnote 114
However, this argument does not preclude Article 2 TEU from playing a role when the Court discharges its mandate to ensure that ‘the law is observed’ (Article 19(1)(1) TEU).Footnote 115 While the former Treaties have kept the EU’s foundational principles out of the Court’s reach,Footnote 116 the Lisbon Treaty does not contain any such limitation with regard to Article 2 TEU. Article 269 TFEU is an exception to the European Court of Justice’s general competence under Article 19(1)(1) TEU, which, being an exception, has to be interpreted narrowly. Moreover, since van Gend en Loos, the European Court of Justice has allowed individual legal action to complement action by the political institutions. Today, this judicial innovation is generally recognised to be at the heart of the European legal edifice.
Finally, the political Article 7 TEU and the judicial Article 258/267 TFEU procedures have different objects and consequences. Article 7 TEU concentrates on a political situation and ultima ratio entails the suspension of member states’ rights eventually leading to a sort of ‘quarantine’.Footnote 117 In contrast, the Court adjudicates individual cases and its sanctioning powers are limited to Article 260 TFEU (penalty payments). Thus, there is no identity between the judicial and the political procedures imposing the latter’s exclusivity. All this justifies the Court’s recent path in ASJP and L.M., which applies Article 2 TEU in combination with more specific provisions.Footnote 118
Maintaining the federal balance
The courts in the EU can apply Article 2 TEU in combination with specific provisions of EU law. Fundamental rights are thereby extended beyond the confines of Article 51(1) CFR. Such application might bring about a massive power shift to the Union and uproot the balance established by the Treaties between the Union and its member states to the detriment of national autonomy, identity, and diversity.
This should be avoided, not least because it would threaten the Union itself as vigorous national countermeasures would be likely. Many are already concerned that European fundamental rights might expand to the point of suffocating the member states, derail national achievements and even bring about an unwanted European federal state.Footnote 119 Article 51(1) CFR is a testimony to this concern. Although its interpretation and application do not fulfil all the hopes set into the Charter,Footnote 120 the Court respects that there are limits.Footnote 121 It is not without very good reason that the Charter does not cover all domestic laws, measures, and decisions. Any response to illiberal tendencies has to respond to this concern.
Limiting elements are needed. To this end, Article 2 TEU should be interpreted narrowly, as mainly demarcating red lines which are transgressed with regard to fundamental rights only when their ‘essence’ is concerned. Further, the courts should exercise their respective competences in the form of a Solange presumption.
High standards for violating Article 2 TEU: crossing red lines
There is one important difference between the Reverse Solange doctrine under EU law and the doctrine’s original articulation by the Federal German Constitutional Court under German law. The German court requires that the essential standards of legal order B (EU law) are ‘equivalent’,Footnote 122 ‘substantially similar’Footnote 123 or ‘essentially comparable’Footnote 124 to legal order A (German law). The Reverse Solange doctrine is less demanding. It requires the respect of essential standards, since Article 2 TEU only aims at safeguarding essential values.Footnote 125 Any other interpretation would infringe upon the legally guaranteed constitutional autonomy of the member states (and thus the ‘federal balance’) and ignore the actually existing constitutional pluralism in the Union.
First, Article 2 TEU cannot demand ‘equivalent’ standards from member states, as such an interpretation cannot be squared with either Articles 4(2) and 5(1) TEU or Article 51(1) CFR. This would run up against the member states’ constitutional autonomy and the federal equilibrium guaranteed by the Treaties. This becomes quite apparent when considering fundamental rights: relying only on the essentials avoids a breach of Article 51(1) CFR. The Charter, with its full fundamental right acquis, remains solely applicable to member states ‘when they are implementing Union law’.
Second, Article 2 TEU can hardly force detailed obligations upon the member states’ legal orders. The Treaties protect diversity among the national constitutions: the republics and monarchies, parliamentary and semi-presidential systems, strong and weak parliaments, competitive and consensual democracies, strong and weak political party systems, strong and weak social institutions, unitary and federal systems, strong, weak or absent constitutional courts, diverse and perhaps even incompatible systems of judicial independence, significant divergences in the content and level of protection of fundamental rights, not least Ottoman, Catholic, Protestant, secular, socialist, anarcho-syndicalist, postcolonial and statist constitutional traditions.Footnote 126
As Werner Schroeder puts it, Article 2 TEU does ‘not aim at the existence of uniform principles and rules, but solely at the observing of European minimum standards’.Footnote 127 Such an interpretation is confirmed by the vagueness of the values, the intent of the Treaty draftersFootnote 128 as well as the very high procedural and substantial thresholds of the Article 7 TEU procedure. Article 2 TEU was not created for ‘light-minded every-day use’Footnote 129 and should be limited to essential values.
What does it mean to restrict Article 2 TEU to essential values? On a conceptual level, we propose to interpret Article 2 TEU as primarily establishing ‘red lines’.Footnote 130 Article 2 TEU should be read as negatively determining what is not allowed, without positively determining how it should be instead. The central aspect is what cannot be done. With regard to fundamental rights, such a red line approach concentrates on their ‘essence’. This notion relies on long-standing jurisprudence and widespread recognition. It can be found in Article 52(1) CFR and numerous member state constitutions.Footnote 131
In this sense, the European Court of Justice states in its seminal Aranyosi judgment that it is the risk of the violation of an absolute right which undermines the basis for mutual trust between member states.Footnote 132 Mutual trust is based ‘on the fundamental premiss that each Member State shares with all the other Member States … a set of common values on which the EU is founded, as stated in Article 2 TEU’.Footnote 133 If violating absolute rights unsettles the presumption of mutual trust, these rights conversely fall under Article 2 TEU. In L.M., the European Court of Justice extended these findings to the essence of rights, in the case at hand of the right to a fair trial under Article 47 CFR.Footnote 134
Therefore, both absolute rights as well as the essence of other fundamental rights constitute red lines protected by Article 2 TEU. It is only in such extreme situations that an individual can rely on Article 2 TEU to seek redress before national courts, and the European Court of Justice can adjudicate on the issue, be it within preliminary ruling or infringements proceedings.
The Solange presumption
Most Solange doctrines, including Reverse Solange, establish the presumption in legal order A that acts emanating from legal order B comply with A’s standards. This facilitates successful cooperation, a towering objective of Union law. Under EU law, this presumption flows from the principle of mutual trust. As a ‘constitutional principle’, perhaps even the Union’s ‘raison d´être’,Footnote 135 it demands that all member states are deemed to comply with Article 2 TEU. A common legal space, as well as majority voting in the Council, create a situation of ‘mutual vulnerability’.Footnote 136 Accepting such mutual vulnerabilities is only possible if it can be presumed that all member states truly comply with basic standards.
Initially, mutual trust only applied horizontally between the member states.Footnote 137 One could argue that ‘because Brussels can mistrust Member States, Member States can … trust each other’.Footnote 138 This would exclude mutual trust in the vertical relationship between the Union (more precisely: the European Court of Justice) and the member states. However, this misreads mutual trust, which has a much broader scope, involving cooperation between all public institutions in the European legal space. The principle of mutual loyalty, which can be seen as the origin of mutual trust,Footnote 139 expressly extends to Union institutions.Footnote 140 The principle of trust cuts both ways: it supports the presumption that all public institutions live up to the basic standards, but it also calls for credible monitoring and protective instruments. EU law does not require ‘blind trust’.Footnote 141
How to mediate between these two opposing objectives? It seems that the concept of systemic deficiency might prove useful.Footnote 142 Indeed, the other denomination of the L.M. case is ‘deficiencies in the system of justice’.Footnote 143 It is not only a well-embedded concept in the Court’s case lawFootnote 144 but also used by many other institutions for situations where European values are at stake.Footnote 145 Accordingly, it is easier to rebut the presumption when the case at hand is part of a regular and widespread practice or when it is commanded by the highest authority as an expression of a political agenda. In other instances, for the sake of its federal balance, the European legal order refrains from activating Article 2 TEU values and relies on the many other instruments available, including recourse to the European Court of Human Rights, to protect human and fundamental rights.
Summing up
Looking at the recent developments through the prism of the Reverse Solange doctrine, we see that much has changed. In 2012, the idea of bringing Article 2 TEU values to life in judicial proceedings against member states seemed to be a bit of a stretch. Today it is established jurisprudence which aims to protect the constitutional fundamentals of the European legal space. The values enshrined in Article 2 TEU apply to any member state action through mutual amplification with a specific provision of EU law. This includes the application of core EU rights beyond the limits of Article 51(1) CFR. The next step is developing the responsibilities of national courts as ‘Union courts’ under Article 2 TEU: a duty to interpret national law in conformity with Article 2 TEU values, a duty of referral when Article 2 TEU values are under threat and – as a last resort – the criminal liability of disobedient judges. These proposals seem to imply a massive extension of EU law’s reach. However, it can hardly be stressed enough that, in order to safeguard the Union’s federal balance, Article 2 TEU, as well as the corresponding responsibilities of national judges, are confined to extreme and exceptional situations.
Nobody knows whether these proposals will help government critics like Wojciech Sadurski or Adam Bodnar in the short term. Yet, it is evident that Union law is developing to better protect its very foundations, which includes helping its citizens in distress. There is no reason to despair. Europe has succeeded in stabilising the monetary union. This inspires hope about the union of values, not least because European resilience feeds here on a particularly potent source: the rejection of authoritarian government.
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