A Network in Defense of the Rule of European Constitutional Law
In the face of the insidious erosion of the role of the judiciary, which is undermining the powers and the independence of many courts worldwide, European national courts stand in a stronger position than elsewhere. They benefit from the support of a robust network of actors, all committed to the defense of the same European values.
Initially, the crisis of the rule of law in Poland and Hungary caught the EU off guard. Europe was unprepared to face an unprecedented attack on the independence of the courts in some of its member states. At the time, Courts were at the apex of their success, as they have been the cornerstones of the new constitutionalism, born from the ashes of totalitarianism, that has dominated the scene for over 50 years. No one anticipated such a sudden turn of events.
The rule of law crisis marked a watershed in the development of constitutional democracies, in Europe as elsewhere. Today, we are living in a new different phase of constitutionalism. The role of courts, the protection of fundamental rights, and the rule of law are a matter of concern. Both in public discourse and in scholarship, they are often described as useless, burdensome and aristocratic limits to the will of the people. We see numerous concrete historical examples of attacks against the judiciary which raise alarms. Even in countries with a strong tradition of judicial independence like the UK, the atmosphere has changed and not for the better, and maybe judicial institutions as such are not openly attacked, but their decisions are disregarded. A striking example is the saga on Rwanda: With a decision issued on 15 November 2023, the Supreme Court found that sending asylum seekers to Rwanda was unlawful because the country is not safe and therefore asylum-seekers would be at risk of refoulement. In response, the Government planned a new treaty with Rwanda and in parallel introduced an emergency legislation designing Rwanda a safe country and thus overcame the prohibition decided by the Supreme Court, for more see Alice Donald on this blog.
A Reason for Optimism, or at Least of a Realistic Hope
Yet, I see a huge difference between the position of the judiciary in European countries and in other parts of the world. Outside Europe, Courts are in the uncomfortable position of being the target and the remedy to the attacks to the rule of law. In Europe, the crisis has triggered the development of a number of countermeasures of political, financial, dialogical-persuasive and judicial nature. As a result, national Courts are not left alone. They can count on a network of institutions that mutually reinforce one another and are all committed to the same purpose: the defense of the rule of (European constitutional) law.
The Example of Israeli Supreme Court
Consider the announced (and partly implemented) judicial reform in Israel, a case in point. In response to a reform aimed at significantly curbing its powers, the Supreme Court issued a milestone decision on January 1st 2024. The Court first affirmed its power to review basic laws, endorsing the doctrine of unconstitutional constitutional amendments. Second, it struck down the basic law through which the Knesset sought to limit the Supreme Court’s powers to review government acts on the ground of reasonableness.
The Israeli Supreme Court found itself in the uncomfortable position of being both the target and the defender of constitutional values, and namely of a robust independent judiciary. In this specific case, the Court proved strong enough to successfully resist the attack. However, while the first part of the decision received endorsement by a large majority, the second part, focusing on the reasonableness control, garnered support by a narrower 8-7 majority. The overall impact of this decision on the Court’s power remains unclear. It is difficult to predict whether the Supreme Court has been reinforced or weakened by this necessary and courageous decision.
For a European Rule of Constitutional Law
Consider now a hypothetical, unlikely, imaginary situation with similar events taking place in a European country (the tone is ironic, indeed, considering that court curbing is a trendy exercise worldwide, through various methods). Indeed, in front of an attack to the national judiciary, domestic remedies need to be activated in the first instance. National judicial review must take the initial step in addressing these unfortunate situations. National judges and constitutional courts serve as irreplaceable frontline safeguards. Even from a European perspective, they are expected to have the first say in line with the principle of subsidiarity which is a core tenet of the European system.
And yet, after more than a decade of “trials and errors”, in Europe judges know – and, most importantly, European citizens know – that they can count on other additional supports and backups.
On the European stage, by now we can identify at least four categories of actions that can be taken with the aim of countering threats to the rule of law in general and to the integrity of the judiciary more specifically: political (art. 7 TEU), financial (the conditionality regulation 2020/2092), dialogical-persuasive (the Commission rule of law reports and the opinions of the Venice Commission) andjudicial indeed: the decisions of the two European Courts in defense of the rule of law are countless. All these different types of actions reinforce each other. In particular the role of supranational courts is more effective thanks to the actions taken by other European institutions.
In Europe, the rule of law has been reinforced by a constitutional and a European dimension. The national judiciaries are not left alone. Rather, they are supported by Constitutional courts in the domestic arena and by European actors in the supranational context. The old continent is ruled by a multiple sphere of constraints, which are political, financial, legal, constitutional and European.
The current challenging situation makes even clearer the added value of belonging to a broader family that is united by bonds of common values, supported by a network of committed political and judicial actors, and yet pluralistic in nature.
Looking Retrospectively
If we look back at our history, the relations between national and supranational courts in Europe have not always been a honeymoon.
First, the development of common constitutional principles in Europe, particularly in the field of fundamental rights, along with the case law developed by the two European Courts challenged or, to put it better, were perceived as challenging the monopoly that national constitutional courts had as the guardians of rights. The core business of national constitutional courts, namely the protection of fundamental rights, has incrementally become a shared mission: on the one hand, with both the European Court of Human Rights and the Court of Justice of the European Union and, on the other hand, with the national judges who are indirectly empowered by the principles governing the European Convention and, even more so, by European Union law.
Second, as the European Courts gained greater importance, national constitutional courts have lost their position of final authority and this was a major change. In most countries, the decisions issued by a constitutional court are final within the domestic system and no appeals are allowed.
And yet, within the European context, the same decisions are not at all final. The same case can be brought before one of the two European Courts, especially the European Court of Human Rights, even after a national constitutional court has given its ruling. This is not a remote possibility. In fact, there have been many cases decided in Strasbourg where an individual complaint has challenged a previous decision by a national constitutional court. For instance, the Hannover case, a landmark German case on the right to privacy, and the Lopez Ostra case, a Spanish case on the right to environment, are famous examples where the ECtHR reversed the decisions taken by the respective national constitutional court. In other cases, the Strasbourg Court confirmed the decisions of national constitutional courts. For instance, in the case relating to the strike of the Beamte in Germany, Humpert v. Germany, if one reads the German decision, it seems clear that the Karlsruhe’s reasoning was (also) addressing the Court of Strasbourg, as if bearing in mind the likely possibility that an unsatisfied German citizen could bring an individual complaint to the Court. As it turned out, sometime later the prediction came true.
All in all, the possibility of further review by supranational courts on the same case ultimately enhances the quality of domestic decisions. Conflict and disagreement between national and supranational courts arise, just like in any group of friends and family. Occasionally, they may hold divergent views on the same cases, follow different interpretations of the same rights, or provide different balances between competing principles.
And yet, the supranational context brought to light that national constitutional courts, while final in their domestic systems, are not infallible (paraphrasing Justice Robert Jackson). Today, national constitutional courts in Europe are neither infallible nor final.
Not only have European Courts eroded the monopolistic position of the national constitutional courts, but they can also contradict them and challenge their final position in the system. It is no surprise and no scandal, therefore, that national constitutional courts initially perceived the European Courts as competitors in the same marketplace and that some of them have occasionally taken a defensive stance.
Over time however, national courts, including constitutional courts, have come to realize that their role and power are not diminished by the presence of other human rights adjudicators, especially at the supranational level. On the contrary, they mutually support and strengthen each other.
In fact, on the hand, national constitutional courts implement ECHR and EU Law, contributing to the dissemination of the European law and case law within the member states (in a way they act as European courts at the local level). On the other hand, the European law on fundamental rights provides national constitutional courts with additional instruments, tools and arguments for reviewing national legislation.
National constitutional courts are empowered – rather than undermined – by the very presence of other counterparts in Europe rowing in the same direction. The same is true and can be repeated the other way around, that strong domestic courts are essential for the proper functioning of the European system.
It is a win-win situation. Indeed, even in this collaborative environment, specific cases may still lead to disagreements and conflicts. Yet, in the long term and in a broad perspective, all judicial actors are partners in the same game rather than rivals.
Creating Virtuous Synergies
Over the past decade or so, the different judicial (along with non-judicial) institutions across Europe have shown an extraordinary ability to “close ranks” and work together for the common goal of protecting the rule of European constitutional law, made up of common constitutional principles and traditions, whereby any power is free to interpret their national identity but at the same time is bound to abide by a higher law.
The erosion of the rule of law in some countries has triggered a stricter legal cooperation in Europe among courts, along with other political and non-political supranational institutions. As the (then) President of the European Court of Human Rights O’Leary recently emphasized – especially during the solemn hearing of the Opening of the Judicial Year 2024:
“…[w] here the common values underpinning the Convention are openly challenged, common values which derive from Europe’s common constitutional heritage, both European courts assist directly and indirectly in their defence, in defence of the other European system and in defence of independent and impartial national constitutional and supreme courts.”
In these turbulent times, Europe has demonstrated its ability to create virtuous synergies for a common purpose, with the judiciaries actively engaging in this collaborative effort. They reference each other’s work and row in the same direction, thereby enhancing the effectiveness of actions taken by any other institutions. They can do better, if only they decide to overcome their reluctance to a more formal cooperation, by means of instruments that are on the table, but are still to be (fully) implemented: like Protocol 16 to the ECHR and the Accession of the EU to the ECHR, for example.
Over the past years, experience teaches that courts’ cooperation brings benefits to all actors involved. All in all, if we broaden our perspective and look at other countries, we can humbly say that, in this turbulent era, any citizen should feel safer and more secure within our European complex, multilayered, and sometimes bizarre and convoluted legal system than in single, isolated countries.
