Threats to the Rule of Law in the UK and in Europe

By Lorenza Buttini

Lorenza Buttini is a graduate in the master’s degree in law at the University of Pavia with a score of 109/110. Her final dissertation, discussed in December 2022, is about ‘The contrast to the gender pay gap’ in the field of European Comparative Labor Law, with particular focus on pay transparency legislation. She represented the University in the 29^th edition of the Willem C. Vis International Commercial Arbitration Moot and is looking forward to a career at a European level.

Blue Europe is an indipendent think tank and does not approve nor share the content or the position of invited authors. The article was created during the 2022 Blue Europe student contest. 

Introduction

The expression ‘Rule of law’ is currently used in several international and national legislative acts, which rarely contain a definition of it. However, it is vital to clarify which meaning these terms assume for the purposes of this paper. In fact, the Rule of law is often erroneously translated as Rechtstaat or État de droit, which have a different meaning and historical origin, as it will be briefly discussed in this introduction.

On the one hand, the essence of the Rule of law was eloquently illustrated in Introduction to the Study of the Law of the Constitution (1885) of the legal scholar Albert Venn Dicey, a notorious British constitutionalist. According to Dicey, the rule of law consists in the protection of individual liberty from abuses of the State by the common law.

On the other hand, the concept of Rechtstaat was theorized by the German jurist Robert von Mohl in his work Encyklopädie der Staatswissenschaften (1872). The Rechtstaat or legal state, as it is also called, refers to the fact that the absolute power of the executive must be limited and balanced by the legislative power.

There are conspicuous differences between the two concepts since the Rule of law has its source in judge-made law and aims to protect the individual from the arbitrariness of the State, while the Rechtstaat is codified in written constitutions and aims to ensure a balance between the constitutional powers, also guaranteed by judicial review.

At present the rule of law is threatened both in the UK, where a reform on judicial review is taking place, and in several EU countries, where national governments are questioning the supremacy of EU law. Maybe the consequences of this process are not clear nor visible yet, but the issue is worth knowing since its outcome is likely to affect the enjoyment of fundamental rights. This paper intends to offer a clear view of what the Rule of law represents, firstly with regard to the English legal system, and secondly referring to the European Union’s framework. The first section is focused on the Judicial Review and Courts Act, enacted in UK in 2021, while the second section illustrates the changes of the constitutional system taking place in Hungary, Poland, and Romania.

UK context

The British form of government is traditionally based upon two key principles, which are the Sovereignty of Parliament (in the past a King’s prerogative) and the Rule of law. The first expression refers to “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”^[2]. In fact, statutes enacted by Parliament are considered as part of the British Constitution and cannot be challenged by decisions of the courts. Although over the years Parliament’s supremacy has been slightly reduced by the issuing of the Human Rights Act 1998 and the adhesion of the UK to the European Union, it still represents a core element of the Westminster system. Regarding the second expression, according to the legal scholar Albert Venn Dicey^[3], rule of law or predominancy of law has three meanings:

• supremacy of regular law;
• no arbitrariness by the government;
• equality before the law.

The law referred to is the binding legal authority derived by statutes (i.e., the supreme law of the land), statutory instruments and judicial decisions, which clarifies the regular laws and fills eventual legislative gaps. After Dicey, many legal scholars have joined the debate about the meaning and the implications of the rule of law in the English legal system. Among them, Trevor defined the substantive content of the rule of law as composed by procedural principles, ensuring the primacy of ordinary courts as exponent of the common law, as well as general principles of law preserved and enforced by them^[4]. According to Bradley and Edwig, Dicey’s theories of the rule of law and of the sovereignty of Parliament are based on assumptions about the British system that no longer apply^[5], albeit they are still influential. In their opinion, the modern concept of the rule of law entails three meanings: law and order better than anarchy, government according to law, a doctrine affecting the making of new law^[6]. The idea of government according to law refers to the principle of legality, which represents a condicio sine qua non of the rule of law, but it is not sufficient to ensure the protection of fundamental rights.

A major role in the preservation of the rule of law is played by judicial review, which allows designated courts to put into scrutiny measures by the executive branch or other public bodies, if adopted without following the proper lawful procedure. On the contrary, judges cannot syndicate the lawfulness of decisions made by the Parliament, because of its sovereignty.

Given the situation, there is a risk of institutional short-circuit because the Government, likely to control the majority of the House of Commons, could limit civil liberties through legislation, taking advantage of what Sir William Blackstone called ‘the omnipotence of Parliament’^[7]. Such view is not supported by Trevor’s analysis according to which ‘the doctrine of parliamentary sovereignty is widely thought to make both rule of law and separation of powers subservient to the wishes of a majority of elected legislator or of the executive government that wields the majority in the House of Commons’^[8]. In his comment to Dicey’s theory of the rule of law, Trevor argues that the potential arbitrariness of statutes is prevented by the exclusive function of interpretation attributed to the courts. Hence, he denies the existence of a tension between the sovereignty of parliament and the rule of law. However, it must be taken into account that such interpretation exists only when a dispute arises. Moreover, judicial review is restricted to a limited number of cases and can be exercised by some courts only. In the recent past, the membership of the UK in the European Community and the adhesion to the European Convention of Human Rights (ECHR), guaranteed that statutes of Parliament could be challenged if they imposed limitations of the rights covered by the Convention, which was directly applicable by English courts thanks to the HRA (Human Rights Act) 1998. Most notably, the HRA 1998 attributed to every ordinary court the interpretation of any administrative act in light of the values contained in the ECHR. The close interaction which exists between the rule of law and judicial review in the English legal system was remarkably expressed in M v Home Office, considered a milestone judgment in constitutional law. As to the facts of the case, a citizen of Zaire (M) made several requests for asylum in the UK, but they were all rejected. During the pending of his last application for judicial review in the High Court, it was the judge’s understanding that the removal of the individual from the UK would be postponed to the end of the proceeding. However, M was deported in Zaire, so the judge issued an injunction against the Home Office and the Secretary of State to obtain his return. The injunction was set aside by the Secretary of State, whose defence was based on the immunity of the Crown and its ministers from any injunction, established by the Crown Proceedings Act 1947, while M’s defence was based on the fact that the Secretary of State acted in contempt of court. The Court of Appeal held that M’s return was due, dismissing the wide interpretation of Crown’s immunity given by the Home Office, since ‘the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is’. This view was confirmed by the House of Lord where Lord Templeman argued that “The judges cannot enforce the law against the Crown as Monarch because the Crown as Monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown”. This case offers a plain example of the way in which judicial review ensures compliance with equality before the law, since even ministers of the Crown acting in the course of their duties can be impleaded for contempt of court and are not immune to injunction reliefs.

The reform

The political concerns about an overruling in judicial review trials started after Miller I ^[9] (2017) and Miller II^[10] (2019), two judgments in which the Supreme Court ruled upon the limits to the powers of the executive.

The recent vicissitudes of the Rule of law in the UK are strictly intertwined with the Brexit (from ‘Britain’ and ‘exit’), a term which refers to the withdrawal procedure of the UK from the European Union. In fact, after more than forty years of membership (the UK’s adhesion dates to 1973), the referendum occurred on 23 June 2016 ascertained the popular will to leave the EU. Thus, the Government initiated the procedure under Art. 50 TEU, which provides that a notice of withdrawal must be sent to the European Council and following negotiates must be conducted to reach a withdrawal agreement. Moreover, according to the first paragraph of Art. 50 Treaty of Lisbon, the exercise of the right of withdrawal is conditioned to the compliance with the constitutional requirements existing in the receding State. At the time, there was a public debate concerning the legitimacy of the withdrawal procedure followed by the UK, especially in the part where the Government alone, without involving the Parliament, sent the required notice. Hence, the matter was brought before the English Divisional Court, which ruled in favour of the claimant, holding that an Act of Parliament of authorization was needed under the British Constitution. Thus, the Government appealed the decision before the Supreme Court, which was asked to deliver a judgment not on the merit of the choice to leave the EU, but on the legitimacy of the procedure followed by the Executive in accordance with the fundamental principles of separation of powers and Parliamentary supremacy. In 2017, the Supreme Court issued a judgment, known as Miller I, where the legal reasoning proceeds from the analysis of the instauration and development of the relationship between the UK and the EU. The decision on appeal confirmed the one issued by the court of first instance, establishing that the withdrawal from the EU must be regulated by the Government and the Parliament. In addition, it is underlined that legislation is necessary to regulate every step of the proceeding since times and ways of withdrawal must be determined by Parliament itself. The main argument of the appellant relied upon the fact that international affairs are a King’s prerogative falling within the competence of the Government. On the contrary, the other party argued that despite Government’s competence on the matter, it cannot modify rights conferred by statutory legislation. Therefore, since the entrance of the UK in the EU and the incorporation of EU legislation into domestic law were sealed by the European Communities Act, enacted by Parliament in 1972, the Government cannot unilaterally modify it.

Two years later, another landmark ruling was issued by the Supreme Court (Miller II), concerning the exercise of the power of prorogation by the Prime Minister Boris Johnson in August 2019. Prorogation is a King’s prerogative, formally implemented by the Executive, whose primary effect is to end parliamentary sessions that occur during a parliamentary term. According to a consolidated constitutional convention, it is the Prime Minister who gives advice of prorogation to the Monarch. In the present case, Johnson was accused of exploiting the prorogation mechanism to prevent parliamentary discussions on the convenience of Brexit. In fact, such discussions could compromise the Conservative Party’s campaign in favour of the UK’s departure from the EU. Before Miller II, the matter was examined by different courts, and for a remarkable coincidence opposed judgments were issued on the very same day in England and Scotland (11 September 2019). In the English case, the claimant (Gina Miller) stated that the Prime Minister committed abuse of power and undermined the sovereignty of parliament, while the defendant, albeit admitting that the exercise of Royal Prerogative is not exempted from judicial review, said that the matter was not justiciable. The High Court held that the Prime Minister’s decision of prorogation was inherently political, and therefore excluded its justiciability, since there are no legal standards to establish the lawful length of prorogation. In the Scottish case, the matter was found non-justiciable by the court of first instance as well. However, in the appeal judgment, the Inner House of the Court of Session held unanimously that the Prime Minister’s decision was not only justiciable but also unlawful. In fact, the examination of circumstances, facts and documents led to the conclusion that the Prime Minister exercised such Royal Prerogative to interfere with parliamentary scrutiny, a core value of democracy and the rule of law.

Then, the matter was referred to the Supreme Court, whose legal reasoning will be briefly discussed. Granted that a prerogative power exists and is exercised within its extent, the judge had to verify if such power is justiciable. According to the Council of Civil Service Unions case [1985] AC 374, the justiciability of such power depends on its nature and subject matter because some highly political acts (like Parliament’s dissolution) must be exempted. In this respect, counsel for the Prime Minister argued that prorogation is similar to dissolution of Parliament, but his allegation was rejected. A central step in the reasoning of the Supreme Court was the identification of a standard by reference to value the lawfulness of the power. Although the limits of prerogative powers are not written down in statutes, they can be identified by the courts to ensure compliance with the common law.

From past relevant case dealing with the exercise of statutory powers, it can be inferred that a power is lawfully exercised as long as there is a reasonable justification to the limitation and frustration of constitutional principles.

In light of these considerations, the Supreme Court held that the power of prorogation was exercised beyond its legal limits and declared the act void. Besides, the frustration of the constitutional principles of Sovereignty of Parliament and Parliamentary Accountability took place in a very critical moment for the UK and was not compensated nor balanced by any reasonable and objective justification. In fact, the UK was navigating a very difficult transition and the House of Commons had previously expressed serious concerns to the departure from the EU in the absence of a withdrawal agreement. No reasons or justification was given by the Executive to explain why a so long prorogation was needed.

As previously stated, Miller I and Miller II remain controversial constitutional cases, both dealing with King’s prerogatives exercised by the Executive, which have foster debate on the extent of judicial review.

In 2019, the Conservative Party won the general election and set out in its manifesto the willing to review the Human Rights Act 1998 (HRA) and administrative law to ensure a correct balance between individual liberties, national security, and effectiveness of government. To do so, the government set up two independent reviews, one concerning judicial review and one about the HRA.

In short, the IRAL (Independent Review of Administrative Law) was published in March 2021 and offered two main suggestions:

• to stop the Cart^[11] judicial review applications (law rate success);
• to improve the flexibility of judicial review by providing the courts with the power to issue suspending quashing order.

The Bill was approved by the Parliament in July 2021 and the JRCA (Judicial Review and Courts Act) received Royal Assent on 28 April 2022, entering officially into force. The most two relevant changes introduced by the JRCA are related to judicial review’s remedies and reversion of Cart judicial review.

Firstly, Part I, Section 1 of the Act establishes new quashing orders (suspended quashing orders and perspective-only quashing orders) in addition to the regular ones. Before the reform, a quashing order had the effect to void ab initio a decision of a public body made ultra vires (which is a decision made outside of the public body’s competence). Now, the courts endowed with judicial review powers can discretionally limit the retrospective effects of the quashing orders or even suspend them to give the public body, whose measure is found unlawful, the opportunity to correct any failure. On the one hand, this means helpful flexibility to public bodies, while on the other it shall result in a limitation of the remedy granted to the victorious claimant. In addition, when the Equality and Human Rights Commission^[12] was asked to give an advice on the equality implications of the Bill, it said that suspending and perspective-only quashing orders undermine the rule of law and, as far as they deprive the claimant of an effective remedy, constitute a violation of Art. 13 ECHR.

Secondly, Part I, Section 2 of the Act is an ouster clause which overturns the principle of common law established in Cart, so that decisions on appealability, made by the Upper Tribunals, are no longer subject to judicial review. Therefore, the burden on the Administrative Court will be reduced but, in the meantime, there is a risk of restriction to justice in cases regarding fundamental rights. In fact, Cart decision reviews often relates to immigration and detention issues, human trafficking, and homelessness cases. Thus, Section 2 can result both in a limitation of the right of appeal of people who belong to the most vulnerable categories, and in a violation of the ECHR and of the Refugee Convention^[13].

It is undisputed that the Act was inspired by the intention to reduce the area of judicial review, to prevent intrusion in the merit of administrative decisions. Yet, the evidence of the alleged judicial abuses is very thin and controversial^[14]. As Lord Neuberger^[15] said, “it is too easy to see the problems with the status quo, and too unappetising and too difficult to see the equally great, or even greater, problems which would arise if the law was changed”. Ultimately, the pursuit of a more effective justice is a laudable goal but it cannot be realized at the expense of individual rights, nor the independence of the judiciary. In light of these considerations, it can be concluded that the JRCA 2022 undermines the rule of law. It will be interesting to see if, after the most recent political developments, this season of great constitutional and controversial reforms will continue or come to an end.

EU context

In the European legal system, an elegant formulation of the importance of the Rule of law is found in paragraph 281 of the judgment known as Kadi I^[16], where the CJEU (Court of Justice of the European Union) explicitly acknowledges that “the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions”. In fact, it is fixed as a common value in Art. 2 TEU and is one of the political conditions required for the admission. The rule of law in the EU context implies that Member States accept the acquis communautaire and the supremacy of EU law, as interpreted by the CJEU. The “existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law”^[17].

The rule of law includes both substantive components and procedural elements and, although it evolves in a dynamic way in each Member State, it is possible to identify a consensual EU definition, whose principal traits are connection with democracy and respect for human rights, constraint to public authority, a guiding principle of judicial interpretation, source of judicial review standards^[18].

However, in the last decade several European countries faced significant changes in their constitutional structure and some national governments disrespected the supremacy of EU law, together with the authority of the Court of Justice. This alarming tendency, in the opinion of the President of the CJEU^[19], constitutes a serious threat to the survival of the European project, since it affects its foundation. Thus, EU institutions have recently implemented new strategies, which will be discussed in the next paragraph, to prevent further complications. The ARoLR 2022^[20] offers a clear view of the current state of affairs of the rule of law within the 27 Member States, regarding the justice system, the anti-corruption framework, the media freedom, and the institutional issue related to the correct functioning of checks and balances. Although the report addresses almost every Member State with recommendations, it highlights a worsening in the democratic backsliding of three countries: Hungary, Poland, and Romania.

The framework of protection

The dialogue between EU institutions about the rule of law’s backsliding became more intense in 2016, when the European Parliament (EP) proposed^[21] the creation of a new mechanism to assure compliance with the values contained in Art. 2 TEU. Its proposal is known as the DRF pact (democracy, rule of law and fundamental rights pact) and provides the implementation of a monitoring system and annual reports, so that, if a member state fail to comply with Art. 2 TEU, the Commission could grant sanctioning measures against it. In 2017, the European Commission rejected the proposal, alleging that the reinforcement of fundamental values can be pursued by using existing tools and denied the utility of an annual report. Soon after, this statement was proved wrong by the unsuccessful activation of Art. 7 TEU against Poland and Hungary (respectively in 2017 and 2019). In fact, the suspension of certain rights was not sufficient to stop violations of Art. 2 TUE. Therefore, in 2019, the European Commission reviewed^[22] its previous position and proposed the Rule of Law Review Cycle, a monitoring system based on the Annual Rule of Law Report (ARoLR)^[23]. Over the last years, the EP has stressed the urge to adopt the DRF pact because the ARoLR limits its scope to the rule of law and does not provide corrective and effective measures. Recently, a mechanism of rule of law conditionality has been introduced by Regulation 2020/2092^[24] to suspend the distribution of European funds to Member States, deemed to be in breach of the rule of law. In doctrine^[25], doubts remain about the legitimacy of such procedure, albeit, in 2022, the CJEU dismissed the actions against the conditionality mechanism,^[26]disproving one by one the allegations made by Hungary and Poland.

Firstly, the Court rejected the lack of legal basis, since Regulation 2020/2092 provides the activation of the rule of law conditionality inasmuch breaches of the rule of law directly affect or seriously risk affecting the Union budget (which is vital to the implementation of every EU action). The mechanism can be activated if a genuine link is found between the breach of the rule of law and financial interests of the Union. In addition, the protective measures must be proportionated to the seriousness of the risk. Reference is also made to the principle of solidarity and mutual trust between the Member States, and it is said that compliance with the fundamental values of the community cannot be reduced to a mere accession requirement. Secondly, the mechanism is not a circumvention of Art. 7 TEU and does not exceed the scope of powers conferred to the European Union. In fact, the rule of law conditionality and the procedure by Art. 7 TEU have different aims and are put in place to protect different EU values.

Thirdly, even if the concept of ‘the rule of law’ is not clearly defined by the Regulation, the principle of legal certainty is not infringed, because the rule of law is a value shared by the constitutional tradition of each Member State and extensively developed by the Court case law.

Hungary

Since 2004 Hungary is a member of the European Union. However, starting from the political rise of Viktor Orbán (the actual Prime Minister), leader of the Fidesz party, there are frequent conflicts between the Government and the European institutions. In fact, Orbán won the general elections in 2010, 2014 and 2018, expressing the radical intention to turn Hungary into an illiberal state, based on the undermining of the Rule of law. According to some scholars, the Hungarian parliamentary democracy has turned into an autocracy^[27] (form of government in which an individual owns absolute power) by the enactment of legislative acts which have weakened the constitutional system of checks and balances. In 2011, a new Fundamental Law was approved, with the effect of amending the existing Constitution and attributing to the Executive significant powers. The parliamentary iter of the constitutional reform lasted only nine days and its outcome was openly in contrast with the opinion of both the Consultive Committee and the Parliamentary Commission. Despite the conspicuous procedural anomalies, the Government managed to obtain legislative and referendum initiative, power to dissolve Parliament (in case it does not approve the annual budget or does not choose as President one of the candidates suggested by the Prime Minister), marginalization of the parliamentary minority by precluding it a seat in legislative commissions. Moreover, the new Fundamental Law revised the system of legal sources by devolving a series of important subjects to cardinal laws^[28]. In particular, cardinal laws – or organic laws – are provided by the Constitution of several countries (France, Belgium, Spain, Romania, Ecuador, Chile, Venezuela, Peru) and their adoption takes place through a procedure which is more aggravated than the one used for ordinary laws. Therefore, in the hierarchy of sources they are placed between the Constitution and ordinary laws. In the Hungarian case, cardinal laws can be enacted or amended only by a qualified majority of 2/3 of the present members of parliament. In doing so, the Government disrespected the Opinion^[29] of the Venice Commission (European Commission for Democracy through Law), a consultive body of the Council of Europe, which underlined the urgency that both the functioning of the organs of the State and the protection of individual rights are covered at a constitutional level. It is true that in other States, for instance in France, organic laws normally regulate the organization and functioning of constitutional bodies. However, the adoption process is accompanied by procedural guarantees, given that every cardinal law is subject to the mandatory ex ante constitutional review, exercised by the Conseil Constitutionnel. After the approval of the new Fundamental Law, the Venice Commission issued a second Opinion^[30], according to which ‘organic laws are contemplated in the new Constitution of Hungary in an exceptionally large manner, far beyond the traditionally issues covered in comparative law by organic laws’. The main concern is that with cardinal laws establishing de facto a new constitutional order, it will be difficult for future governments to amend it by reaching the required special majority^[31].

Also, the New Fundamental Law replaced the pre-existing actio popularis with a restricted number of grounds for constitutional review and attributed to the Supreme Court further control over the decision of administrative and judicial bodies. Even if some of these new provisions were welcomed by the Venice Commission, some scholars are concerned for the state of judicial independence and separation of powers in Hungary, since constitutional judges are now elected by a new judicial body, whose director is chosen by Parliament on advice of the President.

Such concerns are shared by European institutions which activated against Hungary soft law measure, such as Art. 7 TEU with following recommendations, and the rule of law conditionality mechanism, whose main aim is to stop the deterioration of democratic values in the Member States from affecting the financial interests of the Community. Consequently, the Hungarian Government issued a response to suggest remedial measures, some of which have been incorporated into the national recovery and resilience plan (hereinafter: RRP) among the so-called super milestones. In fact, the Coronavirus pandemic caused significant human and economic distress in all Member States and thus, the European Union decided to allocate funds to encourage economic recovery. The granting of such funds is conditioned firstly to the drafting of a recovery plan (a document where the government writes down how they would be used) and secondly to the approval of such plan by the European Commission (the distribution of funds is possible, only if the EC verifies the compliance with strict requirements). The Hungarian RRP was adopted by the Council on 12 December 2022, after intensive negotiations between the Government and the European Commission. According to the EU institution’s evaluation^[32], the Hungarian RRP effectively supports the objectives of both green and digital transition and contains several provisions to reinforce the rule of law: the establishment of an Integrity Authority ensure the reinforcement of the anti-corruption framework, while judicial independence is protected by preventing the Supreme Court from political influence and eliminating the Constitutional Court’s task to review final judgment at public authorities’ request. Notwithstanding the approval of the RRP, the pay-out of the fundings is still conditioned to the effective implementation of the remedies.

Poland

Recent reforms raise concern on both the state of health of the Polish democracy and its compliance with the EU legal system. Some authors believed that the process of rule of law backsliding, implemented by the Polish government through the justice system reform, is worsening^[33]. In 2015, there was an institutional conflict between the President Andrzej Duda (member of the party Law and Justice) and the Constitutional Tribunal. In fact, Duda refused to acknowledge the election of five new members of the Tribunal and, after having gained majority in Parliament, promoted a law to revoke all previously elected judges. After a declaration of unconstitutionality, the President and the Minister of Justice introduced Parliament’s competence to apply disciplinary measures against judges and to control the election of the Superior Council of Magistrates. In 2018, some national courts arose preliminary questions concerning the conformity of the justice system reform with EU law, to be decided by the CJEU as provided under art. 267 TFEU. Hence, the Minister of Justice (and Prosecutor-General) asked the Constitutional Tribunal to declare the illegitimacy of Art. 267 TFEU, invoking the theory of constitutional pluralism. This doctrine was created by legal scholars to avoid open conflicts between the CJEU and national constitutional courts, when deciding if the CJEU has interfered into solely national matters. As a solution to Kompetenz-Kompetenz disputes (as they are technically called), the theory provides an open dialogue between the courts based on mutual self-restraint^[34]. Nevertheless, an institutional dialogue is genuinely possible inasmuch the national constitutional courts remain independent from the political power. On 2 March 2021, the CJEU recognized the non-conformity with EU law of the Polish judicial reform, especially with regard to the appointment procedure of the members of the Supreme Courts. A few days later, the Prime Minister submitted a written request to the Constitutional Tribunal to determine if EU law comply with the Polish Constitution and if national courts must respect the CJEU judgments. The Constitutional Court (Case K3/2021) held that artt. 1 and 4(3) TEU are not compatible with the Polish Constitution, since they let the EU interfering in subjects other than the ones established by the treaties. Also, artt. 19(1) and 2 TEU are not acceptable, having the effect to let EU courts disrespecting constitutional provisions.

The judgment was issued on 7 October 2021, raising a public debate not only at a national level but also among Europe, since it was related to the controversial principle of supremacy of EU law. In fact, such value cannot be found in treaties (albeit being expressed in annexed declarations of principle and in the never ratified European Constitution) but has been established by the CJEU in the judgment Costa v. Enel (1964), where the Court held that EU law prevails over national law. In spite of this, a lot of Member States are still struggling to accept the supremacy of EU law and occasionally there are conflicts between the CJEU and Constitutional Courts.

At first, nor the fines imposed by the CJEU neither the procedure under art. 7 TEU, initiated by the European Parliament, persuaded Duda to revisit the justice system reform. Thus, the funds allocated to the Polish resilience and recovery plan were temporarily frozen and the Polish Government was finally induced to revise the existing disciplinary law and to issue a proposal (dated December 2022) which partially goes in the direction of re-establishing the rule of law.

Notwithstanding the fact that Poland and Hungary are undoubtedly in a comparable situation, two main differences must be taken into account: on the one hand the remedial measures suggested by the Polish Government concern only the independence of the judiciary (which is one of many aspects related to the rule of law), while the Hungarian ones have a wider range; on the other hand, the European Union used the rule of law conditionality mechanism only against Hungary, albeit in both cases the RRP was crucial in convincing the governments to partially reverse the ongoing process of democratic backsliding.

Romania

Since the beginning (2007), the admission of Romania (and Bulgaria) in the EU was conditioned to the adoption of a special monitoring system, known as Cooperation and Verification Mechanism (hereinafter: CVM), because of lack of consistency with EU standards concerning the rule of law. In 2017, the Government made considerable changes to judicial system and electoral legislation. In doing so, it committed an infringement of the Constitution, since modifications of the constitutional structure of the State cannot be made by government ordinances. Also, the government assumed the power to decide over the allocation of charges in judicial offices and proposed the creation of a special section to deal with crimes committed by magistrates. The Superior Council of Magistrates criticized such actions but, after the government applied disciplinary sanctions to the unsupportive magistrates, it ceased every claim. Moreover, the legislative reforms between 2017 and 2019 were condemned by the CJEU, whose judgments were systematically disrespected by Romania’s Constitutional Court. After a two years phase of great concern, between 2017 and 2019, things went back to normal and on 22 November 2022 the European Commission officially declared the closure of the CVM, since Romania has finally met all the requirements regarding reforms of the judiciary and fight against corruption. The fifteen years period of special surveillance has finally ended and from now on Romania will be subject to the monitoring by the Annual Rule of Law Report, as any other Member State.

Conclusion

In conclusion, it can be inferred that threats to the rule of law in the UK and in the EU are not only real but serious. An element which is common to the English and the European context is the attack to judicial independence, together with the attempts to increase Executive’s powers. Nonetheless, it is different the nature of the risks involved. In fact, on the one hand the UK will not become an illiberal state but, since it is not a member of the EU anymore, if a balance between the powers is not restored, it can happen that temporarily civil liberties are reduced on a government’s whim. On the other hand, if the EU fails to contain the spread of illiberal tendencies, its authority and capacity to maintain order and promote integration will be hopelessly affected. Of course, the European project is not perfect and sometimes the economic interest to a correct functioning of the common market has prevailed over social issues. However, if we have the privilege to live in free democratic societies, it is because after two devastating world-wide conflicts, European countries decided to create a new legal order, based on some shared values. Therefore, an infringement of this fundamentals cannot be tolerated and is not consistent with the EU membership. Lastly, every citizen should be concerned,^[35] because while public debate is still focused on issues connected to the COVID-19 pandemic, there is another pathology infecting the core values of democracies: the erosion of the rule of law.

References

1. A. VENN DICEY, An Introduction to the Study of the Law of the Constitution (first published 1885), 10th edn, 1959, London: Macmillan, pp 39–40. ↑
2. A. VENN DICEY, Introduction to the study of the law of the Constitution, Macmilian, London, 1915, pp. 110-115. ↑
3. T.R.S. ALLAN, Constitutional Justice, a liberal theory of the rule of law, Oxford University Press, 2001, p. 20. ↑
4. A.W. BRADLEY – K.D. EWING, Constitutional and Administrative Law, 15^th edition, Pearson Education Limited, 2011, p. 94. ↑
5. A.W. BRADLEY – K.D. EWING, Constitutional and Administrative Law, 15^th edition, Pearson Education Limited, 2011, p. 97. ↑
6. W. BLACKSTONE, Commentaries on the laws of England, Book the Fourth, Univ. Chicago Press, 1979. The expression refers to the unlimited legislative power of the Parliament. ↑
7. T.R.S. ALLAN, Constitutional Justice, a liberal theory of the rule of law, Oxford University Press, 2001, p. 14. ↑
8. R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5. ↑
9. R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41. ↑
10. R (Cart) v Upper Tribunal [2011] UKSC 28. The Supreme court censored the use of prerogative power by the government of the Prime Minister Boris Johnson, since it frustrated the constitutional functions of Parliament. In fact, by such prorogue the Government would have prevented the Parliament from monitoring the subsequent Brexit plans. ↑
11. Equality and Human Rights Commission parliamentary briefing on Judicial Review and Courts Bill, October 2021. ↑
12. Idem. ↑
13. Idem. ↑
14. Tom Sargant Memorial Lecture 2013, Justice in an Age of Austerity by Lord Neuberger, President of The Supreme Court, Tuesday 15 October. ↑
15. Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05, also known as Kadi I. ↑
16. ECLI:EU:C: 2018:117, Judgment of the Court (Grand Chamber) of 27 February 2018, Associação Sindical dos Juízes Portugueses v Tribunal de Contas. ↑
17. PECH L. The Rule of Law as a Well-Established and Well-Defined Principle of EU Law. Hague Journal on the Rule Law 14, 107–138 (2022). ↑
18. XXIX FIDE CONGRESS The Hague, 3 – 6 November 2021 Opening Ceremony on 4 November 2021, Constitutional Relationships between Legal Orders and Courts within the European Union by Koen Lenaerts. ↑
19. https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism/2022-rule-law-report_en. ↑
20. European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), para. 1. ↑
21. Commission Communication, further strengthening the Rule of Law within the Union. State of play and possible next steps, COM(2019) 163 final, 3 April 2019; Commission Communication, Strengthening the rule of law within the Union. A blueprint for action, COM(2019) 343 final, 17 July 2019. ↑
22. The Commission’s Rule of Law Report and the EU Monitoring and Enforcement of Article 2 TEU Values. ↑
23. Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget. ↑
24. BARAGGIA A. – BONELLI M., Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges, in German Law Journal, 23(2), pp. 131-156(2022). ↑
25. Judgments in Cases C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council. ↑
26. ANTAL A., Environmental justice and autocracy in Eastern Europe, The case of Hungary, in Environmental Justice in the Anthropocene, Routledge, 2021, p. 11. ↑
27. MAZZA M., The Hungarian Fundamental Law, the New Cardinal Laws and European Concerns, in ACTA JURIDICA HUNGARICA, 54, No 2, pp. 140–155 (2013). ↑
28. Opinion n. 614 of 28 March 2011, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)001-e. ↑
29. Opinion no. 621/2011. ↑
30. VARJU M. – VINCZE A., Hungary The New Fundamental Law, in European Public Law, Volume 18, Issue 3 (2012), pp. 437 – 453. ↑
31. Questions and answers: European Commission endorses Hungary’s €5.8 billion recovery and resilience plan subject to meeting rule of law milestones, 30 November 2022, https://ec.europa.eu/commission/presscorner/detail/en/qanda_22_7274. ↑
32. GAJDA-ROSZCZYNIALSKA K. – MARKIEWICZ K. Disciplinary Proceedings as an Instrument for Breaking the Rule of Law in Poland, in Hague Journal of the Rule Law 12, 451–483 (2020). ↑
33. KELEMEN R. D. – PECH L., The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland, published online by Cambridge University Press, 04 November 2019. ↑
34. Tom Sargant Memorial Lecture 2013, Justice in an Age of Austerity by Lord Neuberger, President of The Supreme Court, Tuesday 15 October. ↑