Standing

If a EU institution does what is is not allowed to do, you file a lawsuit at a EU Court. So one might think. Usually, you don’t, though. Usually, you wouldn’t even need to: After all, it is the member states’ job to ensure effective legal protection in the areas covered by EU law, a job to which they have committed themselves in Article 19 TEU. Most EU legal acts need to be implemented in one way or another. And then one usually can seek recourse against this implementation before a national court and convince that court that the underlying EU legal act is unlawful and that the matter must be submitted to the ECJ. That’s how it normally works, and this ensures that conflicts in and through EU law can be litigated in court and that no one who has been wronged is left defenceless.

Or so one would think. As is well known, this is not at all how it works in Poland nowadays. Anyone who wants to litigate their conflicts in and through EU law before a court there must expect to end up not before an independent judge but before a minion of the government. And any independent judge who dares drawing legal conclusions from the unlawfulness of this state of affairs, a referral to Luxembourg perhaps, must expect to be disciplined, harassed and stripped of their job and livelihood. With its judicial policy, Poland is not only trampling on the rights of judges and legal subjects in Poland, but also on its obligations under Article 19 TEU. As determined by the ECJ itself.

Or so one would think. The European Council, however, including its member, Commission President Ursula von der Leyen, have taken the position that Poland’s violations of the law are actually not violations of the law after all. And the Commission has backed this by a majority. With its decision of 17 June to unblock the recovery-funds billions for Poland on a conditional basis, the Council has turned the obligation of Article 19 TEU into mere “milestones“. It has turned the legal imperative to obey the European Court of Justice into a mere political target to implement “reforms”. It has turned the rule of law in the EU into a matter of of opportunity and negotiating skills. And it has thus basically proved the right-wing populists right: Everything is politics, and the strongest always wins.

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Have the Council and the Commission done what they are not allowed to do? I suppose it is safe to say that they did. Can one file a lawsuit before the EU courts against this? This week, four European judges’ associations took a chance and brought actions for annulment against the Council decision of 17 June before the General Court. These proceedings will be one of the most exciting and potentially consequential for the constitution of the European Union in a long time.

Whether these actions are even admissible is a tricky question, and it is not at all hard to argue that they are not. To bring an action for annulment against an implementing decision of the Council, one must be “directly and individually” affected by it (Article 263 (4) TFEU). The European courts understandably does not want to be flooded with lawsuits by all sorts of aggrieved market participants every time the EU does something that harms their business. That is why the CJEU  has interpreted the term “individual” extremely narrowly for 60 years: One must be affected by the allegedly unlawful legal act in a comparably specific way as if it were addressed directly to one. For all others, no matter how hard they are hit, the Luxembourg gates remain closed.

In certain constellations, this can lead to legal protection gaps, which is why 20 years ago the General Court and Advocate General Francis Jacobs tried to loosen this cork in the bottleneck a bit. After all, access to legal remedy is guaranteed by the Charter of Fundamental Rights in Article 47. But no: With a powerful gesture, the ECJ immediately drove the cork back into the bottle where it has remained ever since. Until today.

What could convince the ECJ this time to consider the judges’ associations’ complaints admissible? Perhaps their argument that their Polish members, who have been suspended from their posts in the course of unlawful disciplinary proceedings and who by law should be returned to their posts immediately, are now instead forced to wait whether and until Poland may at some point fulfil any “milestones” or not? Who is individually affected, if not them?

But the ECJ will presumably only find this convincing if it looks at the situation not just in terms of procedural law, but also in terms of constitutional policy. It is actually the Commission’s job, as guardian of the Treaties, to ensure that the European legal order applies and is enforced. As long as it does this job, it makes sense not to encourage associations and individuals to make the task of European law enforcement too much their own. However, to the extent that it does not do this job any more, because of the political dependencies and ambitions of its President and the resistance from the member state capitals, it might become plausible to, so to speak, socialise this job up to a certain point: Then the European society, in the form of its organisations and associations, must be able to take matters into its own hands. After all, we are talking about Article 2, the fundamental values of the Union.

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I am quite confident that the European Court of Justice will find a suitable formula to define and demarcate such a right of action for associations on the basis of fundamental values, if it wants to. But perhaps that will not even be necessary. The sheer existence of these proceedings – that’s the genius of it – is perhaps enough to steer the Council and the Commission further back towards the path of virtue. There are now proceedings pending in Luxembourg and will remain so for a while, first at the General Court, then at the ECJ. There will still be pleadings, hearings, press conferences. There is a lot at stake now for the Council and the Commission. When the Commission will have to decide again in the next few months whether it eventually considers the “milestones” to have been met by Poland, it will have to keep that in mind.

The rule of law, one might say.

Thanks to Daniel Sarmiento, Christian Calliess and Mattias Wendel for valuable input.

The week on Verfassungsblog

… summarized by PAULINE SPATZ:

PETER VON FELDMANN explains why the conditions under European law for the disbursement of money to Poland from the EU’s recovery fund are still not met.

Parliamentary elections are coming up in Italy, and a victory for the right-wing conservatives seems likely. GIACOMO DELLEDONNE comments on the current electoral law (the so-called “worst law ever”) and its role in both shaping the range of political options and the outcome of the election.

Recent reforms in Italy and Germany in criminalising acts in the context of child pornography punish behaviour that is related to the sexualisation of minors but does not directly imply their abuse. PAOLO CAROLI takes this as an opportunity to reflect critically on the purpose of criminal law, the concept of enemy criminal law and the role of the European Union.

In Greece, the domestic intelligence service tapped a politician’s phone for three months, severely shaking the political system. GEORGE KARAVOKYRIS on the constitutional background.

Australia recently faced questions about the legality of a prime minister secretly allowing himself to be sworn in to multiple ministerial positions. CHERYL SAUNDERS explains how this came about.

In Chile, the people will vote on a new constitution on 4 September. ALEXANDRA HUNEEUS considers it likely that the draft’s provisions on climate change and environmental protection will set a standard – even if the constitution is rejected.

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The ECtHR ruling on sea rescue in the Sea Watch case is analysed by NASSIM MADJIDIAN, who provides an overview of the ruling, its history and relevance.

If the ECtHR finds a violation of the European Convention on Human Rights, the German Code of Criminal Procedure allows for proceedings to be reopened – at least if the judgement is based on this violation. MORTEN BOE shows that behind this lies the question of how binding ECtHR judgments are in the German legal system.

Nudging used to seem to be the governance tool of the future – but then the replication crisis struck and obliterated much of the scientific basis of that concept. KONSTANTIN CHATZIATHANASIOU discusses the fallout.

The German traffic-light coalition plans to legalise cannabis – but to do so, it must overcome doubts under international law. DANIEL THYM explains why the sticking point here lies primarily in the interplay between international and European law, and what role the ECJ could play.

The Federal Ministry of Finance wants to create a Federal Financial Criminal Police Office. LUKAS MARTIN LANDERER explains why the restructuring is to be welcomed, especially from a European and constitutional law perspective.

FRAUKE ROSTALSKI sees the Federal Constitutional Court’s decision on compulsory measles vaccination as a yielding to a zeitgeist less and less prepared to accept health risks. Ultimately, she argues, it is a question of how much health we owe each other – with a mere justifiability test, the Federal Constitutional Court does not do justice to its responsibility and task of critically evaluating and judging.

In future, girls will be allowed to sing with the Regensburger Domspatzen, but the German UNESCO Commission still lists the “Saxon boys’ choirs” as a cultural heritage worth preserving. This is discriminatory, says ANNA PACURAR.

ALBERTO ALEMANNO concludes our blog symposium on Tarunab Khaitan’s critique of “scholactivism” in constitutional science with a post on why the erosion of democracy and the planetary emergency call us to rethink the role of the scientist in contemporary society.

That’s all for now. All the best, and see you next week!

Max Steinbeis