The European Rule of Law: Comparatives, Cases, and Crisis?

A post by Alvin Cheung

The rule of law is undoubtedly important to the European Union. However, is the use of comparative judgments obfuscating what European law is? Moreover, is the rule of law an “empty phrase”? Have European courts done enough to ensure that it is put into practice? Has the EU failed in the creation of more democratic and egalitarian societies by over-relying on the rule of law to consolidate the European integration project?

Introduction

The rule of law is a fundamental cornerstone to the European Union and integration. It is enshrined in Article 2 of the Treaty on European Union (“TEU”)[1] and is a means to achieve “pluralism, non-discrimination”, “justice”, and “equality”. The particular significance of the rule of law is elegantly illustrated by the first president of the Commission of the European Economic Community Walter Hallstein: “This Community was not created by military power or political pressure but owes its existence to a constitutive legal act. It lives in accordance with fixed rules of law and its institutions are subject to judicial review.”[2]

However, the European rule of law has faced potential destabilisation, especially in recent years, due to three developments: first, the increasingly multilayered and sophisticated international court systems; second, the possibility that the rule of law is an “empty shell” without protection of fundamental rights[3]; third, the recent establishment of illiberal democracies in Hungary and Poland. This essay will examine whether these developments will seriously threaten one of the main cogs in Europe’s constitutional framework.

Comparatives: obfuscating the law?

Comparative considerations in legal reasoning in EU law are becoming increasingly important. This has been intensified by an evolution initiated by national judiciaries and enshrined in the concept of what is called the “multilevel cooperation of courts” or Gerichtsverbund in the European Union. Termed as “judicial cosmopolitanism” by some judges, the need to consider international developments has certainly made head-way in countries such as South Africa, where the “interpretation of fundamental rights has to respect international law and has to take account of foreign law”.[4] In fact, the Charter of Fundamental Rights of the European Union has made such considerations mandatory as well, as per Article 52(6), which mandates “national laws and practices” to be taken full account of. It is clear that such a requirement is to achieve a well-balanced and generally accepted standard of protection in the field of fundamental human rights, which is recognized by the larger international community as well.

Although such a principle is undoubtedly desirable, there is the danger that this violates the rule of law due to the lack of transparency over the methodology or the process of selection of particular countries for comparison, thus undermining the clarity over the litigants’ position which they seek. For example, the rather short references in the Court’s judgment as per Gerhard Köbler v. Republik Österreich only constitute the “tip of the iceberg” and do not reflect the extensive comparative considerations in the conclusions of the Advocate General and on preliminary research done by the internal service of the Court.[5] Whilst there are cases and certain areas of law – including the confidentiality of written communications between lawyers and clients as per Akzo Nobel Chems and Akcros Chems v. Commission – this is not always found in other areas of law.[6]

Yet there is a need for an enhanced degree of awareness for inter-European comparative law considerations, especially for the protection of fundamental human rights. First, the European Court of Human Rights needs a “European consensus” or “commonly accepted standards” in order to pronounce jurisdiction on grounds of rationae materiae over alleged violations.[7] The Court’s consideration of multiple national judgments may help the Court to manipulate the contours of human rights principles, to reach an acceptable middle ground, and limit the wide margin of appreciation of cases granted in numerous “morally sensitive” issues, such as abortion, assisted suicide or conscientious objection, or controversial issues such as measures adopted in the name of national security and defence. By extension, this may lead to greater legal certainty in the European context in the long-run. On the other hand, it would be difficult for citizens to accept the protection offered by fundamental rights with respect to EU institutions or acts undertaken by Member States to implement Union law would offer a lower level of protection than the one ensured on the national level against “purely national acts” of public authority. Differences in level of protection would finally lead to a detrimental forum shopping in search of the most advantageous human rights protection.[8]

Of course, comparative law considerations can have international effects as well. The Inter-American Court originally did not follow the approach of the European Court as they denied costs and attorneys’ fees despite one of the consequences of a violation is a need for legal representation, as per Aloeboetoe et al. v. Suriname.[9] However, there is case law which supports the growing convergence of Inter-American and European Courts after the IAHRC considered the ECHR’s approach in Garrido and Baigorria v. Argentina.[10] As such, comparing the judgments of similar regional supranational courts and applying them in Europe has the potential to make international law – traditionally marred with inconsistencies – more cohesive.

Cases: Effective Judicial Protection and Access to Courts

The concept of the rule of law has been derided by some as an empty phrase: no matter than just a self-legitimizing device for governments and officials. However, many facets of the procedural and substantive rules of law which have been proposed by Raz and Dworkin respectively have been recognised by European courts: the substantive rules derived from the principle of legality legal certainty, the principle of confidence in the stability of a legal situation, as well as proportionality. However, how well has the rule of law been protected in recent jurisprudence? I will be focusing on two main aspects: effective judicial protection against restrictive measures and access to court.  

Effective judicial protection against restrictive measures will continue to be prominent in a post-9/11 world and the rise in global populism. In the case of ZZ v. Secretary of State for the Home Department, the ECJ had the dilemma of developing requirements of judicial control under circumstances of war on terror concerning a decision to refuse a Union citizen entry to the UK on grounds of public security. Although there is settled caselaw that the fundamental right to an effective remedy is denied if parties do not have the ability to examine “closed evidence” as per Kosep Peñarroja Fa. Joined Cases, the Court determined that the Court should be able to refuse full disclosure on the grounds of accommodating legitimate state security considerations regarding the nature and sources of information during the adoption of such a decision, as well as the ability of authorities to carry out future operations.[11]

In the famous Kadi II case, the ECJ deemed information or evidence which might have substantiated the reason concerned was lacking and thus concluded that none of the allegations against the defendant stands.[12] This provides compelling evidence to suggest the ECJ will not succumb to the fear-mongering statements by conservative politicians on being “infiltrated by terrorists”, and to give defendants the opportunity to an effective defence. In fact, such a right is comprehensively protected: in order to ensure the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by procedures followed by the judicial authorities, including the possibility of a judicial review as per Rowe and Davis v. United Kingdom.

Access to justice and the right to a fair hearing are extremely important to sustaining an effective recourse through the systems of law – these rights are enshrined under Article 6 of the European Convention on Human Rights. What are the parameters of one of the cornerstones to the rule of law?

In a recent case of Zubac v. Croatia,[13] the Croatian Supreme Court refused to consider an appeal in a property claim. The Supreme Court declared the appeal inadmissible rationae valoris considering the relevant value did not reach the statutory threshold under s 382(1)(1) of the Civil Procedure Act. In assessing the proportionality of the restriction, the Grand Chamber considered whether the restrictions involved “excessive formalism”. On the one hand, the observance of formalized rules of civil procedure is “valuable and important as it prevents arbitrariness and secures the effective determination of a dispute and adjudication within reasonable time and ensures legal certainty”.[14] However, the strict adherence to formal rules can undermine the practical effective right of access to a court under Article 6 of the Convention.

Ultimately, it seems, the right to access to justice is shaped and contextualized by other cornerstones of the rule of law. The Grand Chamber ruled, among other things, that the Supreme Court were found to be regulated in a coherent and foreseeable manner, the errors made were mainly and objectively imputable to the applicant on whom the adverse consequences fell. There was also proper administration of justice: the case had already been heard by two instances exercising full jurisdiction in the matter, and the Supreme Court’s role was limited to reviewing the application of the relevant domestic law by the lower courts. Whilst the court can be sympathetic to a litigant’s plight, the procedural regularities of the rule of law cannot be circumvented because of an amorphous “substantive” injustice.

Another important facet of the rule of law is the need to provide legal aid for the needy. Spending on legal aid has shrunk more than £1 billion in five years in the United Kingdom. The Ministry of Justice will see cuts to its overall budget of 40% - among the deepest of any government department by 2019-20.[15]Under austerity measures, underprivileged defendants are disproportionately affected – they fail to understand the significance of guilty pleas, and litigants in person are reported to have difficulties presenting legal arguments or complex financial information.

It is quite unsatisfactory, in the writer’s opinion, that the granting of legal aid depends on factors such as “the complexity of the relevant law or procedure” and “his or her prospects of success in the proceedings” as per the cases of Airey v. Ireland[16] and Steel and Morris v. the United Kingdom.[17] Surely the only issue that the European Court should be concerned about is whether the matter concerning the defendant is personally important to him.

However, jurisprudence on the effectiveness of the legal aid is quite satisfactory. Assigning a lawyer to represent a party does not in itself guarantee effective assistance (Sialkowska v. Poland).[18] This is particularly important, considering the situation in the United States where state attorneys are often overburdened with work and cannot effectively represent their client, to which they pressure their defendants to agree to a plea deal. Under European jurisprudence, competent national authorities need to practically provide effective assistance if the lawyer shirks his duties or is unable to fulfill them.

Crisis: Hungary and Poland – the Destabilisation of the Rule of Law Framework?

The recent establishment of “illiberal democracies” in Hungary and Poland have caused much cause for concern. I will attempt to make two main arguments here: first, the EU used the rule of law merely as an incentive, but failed to sincerely implement it, which has caused the instability in the European integration framework. Second, there are multiple problems with Article 7 of the TEU, and it is unclear whether such problems can be remedied via the Rule of Law Framework.

In the context of helping post-communist countries to fend off reversions to socialist regimes, the rule of law became an objective for development policy “in its own right”. In the early 1990s, the World Bank openly tied governance and rule-of-law reforms to loan disbursement conditions. Under the Washington Consensus, there was a mix of neoliberal policies and legal and human rights reforms. The rule of law constituted by judicial independence, transparency and accountability worked as a vague and adaptable terminology that legitimised broad economic reforms which entailed greater privatisation of property rights and contractual freedoms.[19]

However, what the EU failed to take into account during these macro-level reforms was to ignore micro-level internal reforms. Many judges in post-communist countries remained at odds in enforcing private and regulatory law regimes – for example, European environmental and consumer protection regulations tackling economic inequalities were not successfully transplanted.[20] The policies did not specifically address the spiking inequalities between the East and West or between the cosmopolitan elites who collected benefits of free movement and those who were stuck with stagnant wages and high levels of unemployment. This has caused politicians in such countries to implement protectionist, autocratic and isolationist policies which undermine the very nature of transnational legal regimes which thrives on cooperation and integration.

Second, there are multiple issues with Article 7 of the TEU. First, there is an incredibly slow reaction time to the clear risk of serious breaches of the rule of law, given that none of the potential initiators of the Art 7 procedure adopted a reasoned proposal until the Commission did so in December 2017.[21] Moreover, even though a reasoned position is made by the potential initiators, there is no guarantee that the Council would confirm the positions expressed in the proposal with the required majority. Of course, these are due to political agendas – for example, the Brexit situation and the concern over future trade relations might impede the UK Government from making their “rule-of-law” concerns heard. Hungary certainly would not support deployment against Poland over Article 7 due to the similar nature of their “illiberal democracies”.

Finally, it is uncertain that sanctions against such breaches can be enforced in any way, given the nationalist regimes of the concerned countries such as Hungary and Poland have already built up antilegal constitutional systems. These governments may be dangerously uncooperative – as per Article 7(2) of the TEU, the recalcitrant Member State has to be “invited” to “submit its observations” in order to ‘determine the existence of a serious and persistent breach by a Member State of the values referred to”.[22]

Therefore, the over-reliance on the rule of law has caused liberal democracies to fail in post-communist regimes as they were treated as “part-of-the-package” for shock therapy reform. Moreover, the preventive and sanctioning mechanisms of Article 7 are incredibly ineffective.

Conclusion

In this piece, the writer has argued that the lack of transparency over the methodology in comparative judgments might obfuscate the law but are ultimately needed. Second, it has argued that effective judicial protection and access to court – two fundamental cornerstones of the rule of law – is still kept intact with recent rulings from the ECJ and ECHR. Third, it has examined the causes of the destabilisation of the rule of law framework in Europe.