A New Chapter in the European Rule of Law Saga?

‘[B]y adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’. At first glance, this plea seems almost unspectacular. Yet, when one takes a closer look, this very plea demonstrates the European Commission’s attempt to write nothing less than a new chapter in the saga of the European rule of law crisis. The Commission’s action concerns the controversial Hungarian law of the Fidesz government, which restricts information about transsexuality and homosexuality. For the supposed protection of children, the media are obliged to classify programmes dealing with homosexuality and transsexuality in the so-called ‘category V’, with the result that they may only be broadcast after 10 pm. Furthermore, the law prohibits minors from accessing content which educates about homosexuality and transsexuality, thereby further restricting the rights of minorities.

This blog post aims to provide an overview over the recent development and the academic debate regarding the justiciability of Art. 2 TEU in this context. I argue that although the mobilisation of Art. 2 TEU as a stand-alone provision might open new doors to tackle the democratic backsliding in some Member States, this approach has to be handled with great care.

The recent ECJ’s value-based case law

The infringement proceeding, which has now been initiated by the Commission, could thus join the fulminant line of the ECJ’s case law, which started with the judgment on the salary cuts of Portuguese judges (ASJP) from 2018 onwards. There, the ECJ ruled that the obligation of the Member States in Article 19 para. 1 subpara. 2 TEU to provide effective legal protection in the areas covered by Union law includes, in particular, the guarantee of an independent judiciary. The ECJ’s case law was confirmed in the LM case and gained further significance through the Repubblika judgment in 2021, in which the court established the so-called non-regression principle, which is considered by some authors to be no less than the ‘solution’ to the so-called Copenhagen dilemma¹⁾ (see also here).

The fact that the rule of law crisis and democratic backsliding has not died down, but is unfortunately becoming more relevant, can be seen in the number of cases currently pending before the ECJ (for recent evidence see here and here).

But back to the beginning: what has already been intensively discussed in the literature for several years has now been turned into reality by the Commission by bringing an action, based on Art. 2 TEU as a self-standing provision. In doing so, the Commission is likely to fulfil at least the bold dreams of some particularly enthusiastic scholars of European law (see e.g. here and here).²⁾ There is an almost unanimous view that the values in Art. 2 TEU are not merely ideological programme sentences, but valid, binding law.³⁾ But let us recapitulate: what were the arguments and reservations for the direct justiciability of Article 2 TEU?

What is being discussed: The academic debate regarding the justiciability of Art. 2 TEU

In the academic discussion, a distinction must be made between the indirect (in conjunction with other provisions) and the direct application of Article 2 TEU.  The fact that Art. 2 TEU could be used directly as a standard of review is initially supported by the fact that the Lisbon Treaty – unlike the earlier treaties, according to which fundamental principles were not justiciable – no longer contains a corresponding provision.⁴⁾ However, the restriction of jurisdiction by Art. 269 TFEU in relation to the Art. 7 TEU procedure, which deals specifically with the violation of Art. 2 TEU, appears problematic in this context. In part, an argument against the direct justiciability of Art. 2 TEU is seen in the design of the Art. 7 procedure in the form that it is precisely the ‘peers’⁵⁾ and not a supranational institution of the EU that decide on undesirable developments regarding Art. 2 TEU. This is one of the reasons why the Art. 7 TEU procedure is often referred to as a political procedure (for a good overview regarding Art. 7 TEU see e.g. here).

However, the restrictive interpretation resulting from the exceptional character of Art. 269 TFEU and the different procedural objective in relation to Art. 7 TEU provide no argument against the justiciability of Art. 2 TEU can be derived from this. Rather, the wording of Art. 258 TFEU (according to which the Commission may bring an action against a Member State if it fails to fulfil an obligation under the Treaties) refers to the treaties as a whole and does not contain any exclusion of Art. 2 TEU (unlike, for example, Art. 24 para. 1 UA 2 TEU).⁶⁾ If a limitation of the jurisdiction of the ECJ had been intended, this would also have been reflected in the Treaties.⁷⁾ Practical difficulties, however, are regularly raised by the open wording of ‘values’ contained in Art. 2 TEU (see e.g. here and here; and see also the debate specifically in relation to the value ‘rule of law’ here).⁸⁾ It should be noted here that the European institutions have in the recent past concretised the wording based on case groups, which facilitates judicial application (see e.g. for the Commission’s Rule of Law Report 2022 here).  Recourse to the case law of the ECtHR (see for a factsheet regarding the independence of the justice system here) or the work of the Venice Commission (see for a report regarding the rule of law here or the judicial independence here), as already suggested in some cases⁹⁾, also appears feasible here.  However, it should by no means be neglected that an interpretation of Art. 2 TEU by the ECJ, in view of the politically highly sensitive areas involved, could challenge conflicts of competence, and weaken the legitimacy of the court.  It is for good reason, therefore, that a large number of voices in the literature (see e.g. here and here) argue against an application of Art. 2 TEU as a stand-alone provision.

As an alternative, there is the possibility of applying Art. 2 TEU in conjunction with norm-concretising provisions, as practised by the ECJ for the first time in AJSP. With the judicial operationalisation of Art. 2 TEU, in ASJP the ECJ specifically extended on the one hand the scope of application of the provision Art. 19 para. 1 UA 2 TEU (which protects the institutional right to effective judicial protection), which is explicitly limited to the ‘fields covered by Union law’. By using Art. 2 TEU in this context, the ECJ has the possibility to extend the scope of application of the respective concretising provision. This is not unproblematic, particularly with regard to the limited wording of e.g. Art. 19 para. 1 UA 2 TEU and provisions such as Art. 51 CFR, which define the scope of application of certain laws. Furthermore, the common reading makes it possible to concretise the rather abstract values from Art. 2 TEU and thus to translate them into legal, justiciable obligations.¹⁰⁾ Dimitri Spieker speaks illustratively of mutual reinforcement of the respective provision in this regard.

While the successive readjustment of Art. 2 TEU by the ECJ and parts of the literature is interpreted negatively by some as a transformation of Art. 2 TEU into a ‘federal homogeneity clause’¹¹⁾, it remains questionable whether such an approach by the Commission is ultimately a blessing or a curse. If the ECJ were to allow Article 2 TEU to suffice as a stand-alone provision, judicial review of all the values in Article 2 TEU would be conceivable in the future. So far, the ECJ has needed a normative provision such as Art. 19 TEU and thus was limited to partial sections of Art. 2 TEU. The use of Article 2 TEU as a stand-alone provision would entail a considerable expansion of the ECJ’s competence, which is not only a risk institutionally¹²⁾, but could also prove difficult in phases of political explosiveness. In any case, it is clear that Art. 2 TEU, due to its broad scope and fundamental content, covers all member state activities and, as a stand-alone provision, could further mutate into a ‘quasi-federal standard of review’¹³⁾ that places itself in a dangerous tension with member state pluralism.¹⁴⁾ This applies all the more in those cases where the judicial review by the ECJ concerns fields of law that are fundamentally reserved for the regulatory competence of the Member States.

It is possible that the ECJ could at least partially address the above concerns by further developing the non-regression principle introduced in Repubblika. According to this principle, the Member States must not amend their legislation in a way that leads to a reduction in the protection of the value of the rule of law.¹⁵⁾ At least at first glance, the application of the non-regression principle appears to be a mitigation in the sense that instead of setting positive legal standards, it refers to the member states’ own order and thus seems to leave more room for pluralism in the member states. At the same time, numerous open questions remain, such as the exact point of reference for assessing the regression or how the existence of a regression is to be determined at all.¹⁶⁾

It should also be borne in mind that Article 2 TEU should be interpreted narrowly because of its extremely far-reaching character and foundational content. Proceedings based on Art. 2 TEU should therefore not be a procedure for bagatelle cases. In this context, Kim Lane Scheppele‘s proposal regarding the so-called systemic infringement actions could gain new relevance (see here and here). According to this, instead of focusing on individual treaty violations, the Commission should bundle several specific, interrelated violations of the rule of law in order to demonstrate their systemic nature.  Furthermore, bringing systemic actions could have a resource-saving effect due to the bundling of infringements and additionally give the Commission the opportunity to address infringements that would not have a high chance of success in individual proceedings. Admittedly, even the systemic charge does not help to overcome the difficulties which arise in the interpretation of values like ‘democracy’ and ‘rule of law’, which exist in comparison to the application of other Union law.¹⁷⁾

Finally, the expansion of the ECJ’s competence, which goes hand in hand with the assessment of systematic violations, would be an enormous test for its legitimacy, which appears problematic especially against the background of existing criticism regarding the independence of its own judges.

The need for a credible European Union as a reliable guarantor of the rule of law

In view of the conflicting interests and the effect on national identities, which is expressed in their fundamental political and constitutional structures (Art. 4 para. 2 TEU), the need for credible Union institutions cannot be overestimated. To be able to withstand the authoritarian temptations of individual member states, there is a need for democratically legitimised organs at Union level as well as a transparent public discourse.¹⁸⁾ The EU can only be a reliable guarantor of the rule of law where it is consistently committed to its own values under Article 2 TEU. Reference is made here only to the prominent debates around degressive proportionality in relation to the European Parliament or even, in connection with judicial independence, the possibility of re-election of judges at the ECJ.

In any case, one thing is certain: if the Commission submits such a proposal, the further development of the European rule of law saga will remain exciting. At present, hardly any judgement of the ECJ will be awaited with such suspense surrounding the ECJ’s method and normative justification.