Commission v. Poland marks a showdown in the EU’s
current “value crisis”. Its
possible results, however, seem rather predictable: With Advocate General
Tanchev’s recent opinion and the
Court’s orders rendered in
the case, it appears very likely that the CJEU will find Poland in breach of
Article 19(1)(2) TEU. Further, the Court seems to have already prepared the legal
adjudicating the case in its seminal ASJP-judgment.
latter is still surrounded by several uncertainties. In this decision, the
Court interpreted Article 19(1)(2) TEU as establishing an obligation of
judicial independence for every
Member State court that has the abstract
power to apply EU law – even if it does not actually
apply it in the specific case at hand. Thus, Article 19(1)(2) TEU reaches de
facto every Member State court. Two
points seem particularly difficult to grasp: First, the Court did not elaborate
on the complex relationship of Article 19(1)(2) TEU and Article 47 of the
Charter. And second, it is not entirely clear how it justified the immense scope
it has accorded to Article 19(1)(2) TEU. The CJEU’s reasoning seems to
oscillate between well-known effet utile
considerations and a new, ground-breaking rationale – the judicial
applicability of the Union’s common values enshrined in Article 2 TEU.
Commission v. Poland gives the
Court not only the opportunity to put ASJP
into practice but also to clarify the doctrinal framework for finally addressing
the developments in “backsliding” Member States under EU law. This contribution
will shed some light on these two uncertainties, suggest ways of how the Court
could resolve them and explore the potential repercussions for the EU legal
I. Extending the Charter through the backdoor of Article 19(1)(2) TEU?
In ASJP, the Court relied on Article 19(1)(2) TEU – not Article 47 CFR – in order to address judicial independence in a Member State. Pursuant to Article 19(1)(2) TEU, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, which includes guaranteeing an independent judiciary. Why did the CJEU not rely on the equivalent Article 47 CFR (on this equivalence, see e.g. Berlioz, para. 44)? Probably because the case at hand (and by the way also the respective Polish reforms in Commission v. Poland) fit uneasily with the scope of the Charter under Article 51(1) CFR. According to the Court in ASJP, however, Article 19(1)(2) TEU applies “irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) of the Charter”. Unfortunately, the exact meaning of this sentence remains obscure: Does it imply that Article 19(1)(2) TEU has a different or even a broader scope of application than the Charter?
1. The “shadow” of Article 19(1)(2) TEU
Prima facie, any
difference in scope between Article 19 TEU and the Charter seems odd. As Koen
Lenaerts formulated so famously with regard to the scope of the Charter under
Article 51(1) CFR:
“Just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter.”
If the Charter follows the scope of Union law (and ergo that of Article 19(1)(2) TEU) like a shadow, one would expect the Charter to reach as far as Article 19(1)(2) does. This view is supported by the Court’s stance in Åkerberg Fransson: “situations cannot exist which are covered … by European Union law without those fundamental rights being applicable.” Admittedly, this position has been subsequently watered down in the Court’s case law: The shadow of EU law has begun to develop a certain “penumbra”. Yet one situation has remained crystal clear: The Charter applies when EU law creates a “specific obligation” for the Member States (see Hernández, para. 35 and Siragusa,paras. 26-27).The creation of such “specific obligations” to guarantee an independent judiciary was exactly the reason for the Court’s interpretation of Article 19(1)(2) in ASJP.
In this sense,
Article 19(1)(2) TEU could be understood as defining the scope of Union law
within the meaning of Article 51(1) CFR. According to ASJP, Article 19(1)(2) TEU creates an obligation of judicial
independence for every national court which is abstractly empowered to apply EU
law. Letting the Charter and Article 47 CFR “follow” the scope of Article
19(1)(2) TEU would imply, therefore, that Article 47 (and the Charter as a
whole) is applicable in virtually every procedure
before a Member State court.
2. Far reaching implications
interpretation would entail an enormous extension of the Charter’s scope.
Before ASJP, a lack of effective
judicial protection in procedures concerning solely national law was deemed insufficient to trigger Article 47
CFR. The subject matter needed to be EU law in the specific case at hand (see e.g. Maurin, paras. 11-12). After ASJP, an individual can in theory rely on Article 47 CFR whenever
it is confronted with a judge lacking the necessary degree of independence.
This would render the organisation of the whole national judiciary justiciable for individual actions under EU
Such an extension of the Charter’s scope was
probably neither the drafters’ nor the judges’ intention. In a speech held immediately after ASJP, Judge von Danwitz emphasised that the recourse to Article
19(1)(2) TEU was meant as a way “to resist the temptation to go beyond the
limits of the scope of the Charter as set out in the first paragraph of its
Article 51”. The only way out of this dilemma seems to be an eventual departure from
the Court’s clear-cut stance in Åkerberg
Fransson. The CJEU could draw a line between two dimensions: On one hand, a
structural, objective rule of law dimension under Article 19 TEU which is concerned
with the EU judicial system as a whole; on the other hand, an individual,
dimension concerned with individual fundamental rights violations under the
Charter (and thus Article 47 CFR). Both dimensions would preserve an
independent nature, rationale and function justifying a diverging scope.
Yet there are good arguments for the Charter’s application in situations covered by Article 19(1)(2) TEU. First, the EU legal order relied from its very beginning on the “vigilance of individuals … to protect their rights”. Empowering the individual to enforce Treaty obligations is therefore not alien to EU law. In its recent L.M. judgement, the Court seems to have taken a further step into this direction. It allowed for the general possibility to postpone a European Arrest Warrant when judicial independence in the issuing Member State is at stake. According to the Court, an individual can challenge its surrender to such a Member State based on Article 47 CFR. This has been interpreted as empowering “individuals for defending European values” (see here). Second, the Court has already begun to increasingly expand the scope of the Charter to situations in which EU law does not concretely apply in the specific case at hand. In a recent line of cases, the CJEU applied the Charter to horizontalsituations between individuals in which EU law (a directive) did not actually apply. For the Charter to be applicable it was sufficient that the “field [was] covered by EU law” (see Egenberger, para. 76, Bauer, para. 85, Max-Planck-Gesellschaft, para. 74 and Cresco Investigation, para. 76). Interestingly, this is exactly the same wording we find in Article 19(1)(2) TEU as well.
Eventually, the Court will have to make a decision: Either it will have
to further attenuate Åkerberg Fransson
and accept that there might be many diverging and different scopes in EU law;
or it might opt for expanding the Charter’s application in national court
proceedings. To say it bluntly: Either the Court sacrifices Åkerberg Fransson or it puts Article
51(1) CFR at risk. It cannot have it both ways.
II. Explaining the broad scope of application of Article 19(1)(2) TEU
major issue of ASJP was the massive
extension of Article 19(1)(2) TEU’s scope. According to the Court’s
interpretation, Article 19(1)(2) TEU creates obligations for every Member State
court which is potentially in the
situation of applying EU law. This means de facto every Member State court. A thorough analysis of ASJP reveals two (complementary?)
rationales justifying this ample scope reaching far into domestic territory.
1. A recourse to the effet utile …
the Court seems to employ the well-established effet utile rationale. First, it refers to the functioning of the
preliminary reference procedure under Article 267 TFEU. National courts have an
indispensable position in the effective and uniform application of EU law. As
they are obliged to apply EU law in the respective Member States even where it
may conflict with national law, they are considered to be the first “Union
courts” (see e.g. Simmenthal or Les Verts). However, such a
system cannot work if Member State courts are not independent.Second,
the rationale behind Article 19(1)(2) TEU supports the Courts findings. Instead
of further lowering the demanding locus
standi criteria for individual actions before the CJEU (see Article 263(4)
TFEU), the drafters of the Lisbon Treaty opted for a strengthened decentralised
judicial system based on both the CJEU and Member State courts. The very function
of Article 19(1)(2) TEU is to ensure that this diffused judicial system works
and that no protection gaps arise. This necessarily enables the CJEU to specify
and harmonise Member State provisions regarding judicial remedies and
procedures (see e.g. Unibet, paras. 40-43 and Factortame I, paras. 19 et seq.).
two considerations seem to strongly indicate that ASJP is not the tectonic shift “reconfiguring the EU constitutional
order”.Instead, the CJEU could be seen as applying its
well-known effet utile argument.
2. … or rather a recourse to “values”?
Yet there is
another, potentially ground-breaking justification for the ample scope of Article
19(1)(2) TEU. Due
to their open- and vagueness, it has been highly debated whether Article 2 TEU
values create any legal obligations for the Member States or
whether they unfold any justiciable legal effects. As such, it was
not clear whether Article 2 TEU can be relied upon against developments in the
Member States challenging the Union’s very foundations. At the crucial passage of ASJP, the Court now states that
TEU […] gives concrete expression to
the value of the rule of law stated in Article 2.”
establishing this connection, the Court seems to render Article 2 TEU
judicially applicable. It implicitly rejected an isolated, direct application
of Article 2 TEU and opted for a “combined approach”. The CJEU uses a provision
containing a specific obligation to “operationalise” the values
enshrined in Article 2 TEU. They are judicially applied via a more specific
provision translating them into specific legal obligations (for first
articulations of this idea, see already here and here).
What is the effect of this approach? At first glance, it could lead to a limitation of Article 2 TEU to the specific provision’s scope. Accordingly, Article 2 TEU operationalised by Article 19(1)(2) TEU would be limited to the latter’s scope: “fields covered by Union law”. This limitation of Article 2 TEU’s effect by its specific carrier-provision, however, seems to severely neglect the overarching importance of Article 2 TEU and its unrestricted scope of application. The scope of Article 2 is not limited to the scope of application of the Treaties: The Member States are bound by it even in areas not covered by any (other) Union law. To allow a provision of primary law to unilaterally prevail over Article 2 TEU would frustrate its overarching importance and probably not conform with the methods of systematic interpretation.
And indeed, the CJEU does not seem to
limit the scope of Article 2 TEU operationalised by Article 19(1)(2) TEU to the
“fields covered by Union law”. In ASJP,
it established standards for any
Member State court. How can this extended scope of Article 19(1)(2) TEU be
explained? According to my reading, the interplay
of Article 2 TEU with another more specific provision creates a “mutual amplification”: The specific
provision of EU law (here Article 19 TEU) translates Article 2 TEU into a specific legal obligation. At the same
time, the specific provision is “charged” with the general nature of Article 2
TEU. This “charging” effect also
pertains to the specific provision’s scope. In this cumulating
interplay, each contributes what the other lacks – specificity and unrestricted scope. As such, the
combined provision of Article 2 TEU and its “carrier” creates legal obligations
for the Member States even beyond the scope of (any other) Union law (see in
In this sense, the logic of a “mutual
amplification” kills two birds with one stone: It allows for the judicial
applicability of Art. 2 TEU and its application beyond the scope of (any other)
Union law. Eventually, such a mutual amplification could be operated with any
other provision of EU law giving “concrete expression” to a value enshrined in
Article 2 TEU and containing a specific obligation for the Member States. In
order to not upset the federal equilibrium, however, such an approach needs to
be accompanied by carefully construed limitations (for such limitations, see here).
III. Commission v. Poland: A stepping stone towards a strong “Union of values”?
As seen above, ASJP did not only establish a framework for addressing illiberal
developments in the Member States threatening the Union’s common values (at
least as far as judicial independence is concerned); it also leaves us with
several uncertainties clouding the reach, justification and construction of these
Union law responses.
Yet there is a pressing need to clarify the legal framework under which legal actions against “backsliding” Member States can take place – especially when the link to EU law is weak or difficult to establish. Further Commission procedures directed against Poland (see here and here) as well as Polish judges seeking the support of the Court depend on such clarity. Many Polish courts have submitted preliminary references to the CJEU concerning the retirement ages and the new disciplinary regime. Some of them are subject to disciplinary measures for the sole reason of launching a preliminary reference concerning the internal organisation of the Polish judiciary (see e.g. the accounts of Iustitia, Themis and the Helsinki Foundation). In light of these developments, a firm response of the Court establishing a solid legal framework for violations of Article 2 TEU seems therefore more urgent than ever.
ASJP was already a huge step in this direction. But as András Jakab noted so concisely: “a usual method for expanding judicial competences is to establish the competence but not to use it … The next step … is the establishment of a violation.” And this “next step” – this time a veritable stepping stone towards a strong “Union of values” – does not seem far away.