Increasing the visibility of the constitutional fundamentals of the Union takes on existential importance in times of constitutional reckoning or, as some call it in more ominous terms, in times of “capitulation”. It is for that reason that art. 19(1) TEU should be amended to reflect the case law of the Court of Justice (“the Court”) and thus to codify the core that binds the Member States to the discipline of the legal order.
Why art. 19 (1) TEU ?
Art. 19 (1) TEU and its predecessors (art. 164 of the Treaty on the European Economic Community and art. 220 of the Treaty on the European Community) have read since the very beginning of the Communities (and long before the Treaty of Lisbon has introduced the oft-cited paragraph on the effective judicial protection): “The Court of Justice shall ensure that in the interpretation and application of the Treaties, the law is observed.” To fully understand the powerful reach and symbolism of art. 19(1) TEU, our attention must be focused on its most crucial, and yet often neglected, part of this provision and its reference to “the law”/ “le droit”/ “des Rechts”./“del diritto”/ “prawo”/.
At first this provision seems striking for its simplicity and terseness. And yet, it has played a crucial role in our understanding of how the Court has moulded its own function in the community based on the rule of law and how it has been framing and reframing the message to its most important audiences: the national courts, the Member States and the institutions (also here and here). The Court of the 1960s and 1970s and its judges always spoke of the law’s authority that binds together the union of “states, institutions, and individuals”. For its part the Court of 2022 is faced with the challenge of building on this most precious institutional memory and, on what former Judge of the Court late C. Kakouris, once called, “judicial ethos and mission”. The institutional trajectory of the Court clearly shows that Art. 19(1) TEU has always played a systemic and ordaining function. First, it has moved the governance from power-oriented to rule-oriented politics. Second, it has always stood for “the supranational legality”. Third, it has both empowered and delimited the Court. Fourth, it has expressed the fundamental idea of judicial protection which has allowed the Court to interpret the jurisdictional clauses in a manner that is coherent and constructive. Fifth, it has defined the jurisdiction of the Court and more broadly normative space within which the Court exercises its judicial power. Sixth, it has underscored that the courts of the Union are courts of law and that the Union is governed by law. As eloquently summarised by Advocate General F. Mancini, in Les Verts case:
“The obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court has been prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission.”
Art. 19(1) TEU meets the Union values (art. 2 TEU)
Today, we need to reflect at the level of the Treaties the paradigmatic shift taking place within the EU legal order and its arduous transition from a market-driven entity to a value-based community. The supranational legality built on, and around, art. 2 TEU and art. 19 TEU, becomes a key concept that not only defines the supranational design and governance, but also underscores the most distinctive feature of the post war supranational consensus: trust in the law and institutions. Today art. 2 TEU forms part of the EU law sensu largo in the same way the Court has interpreted the term “law” in Art. 19(1) TEU. The combination of art. 19 TEU and art. 2 TEU is essential as it leads to a novel reading of the commitments of the parties to the consensus and of its substantive content. Such a re-reading must respond, and be tailored to, the new dangers of creeping authoritarianism from within and the democratic backsliding. Art. 19(1) TEU and art. 2 TEU express the value of the rule of law defined by the reference to effective judicial protection and judicial independence as an essence of the fundamental right to a fair trial. The very existence of effective judicial review is of the essence for the rule of law. For effective judicial protection to be ensured, it is essential that judicial independence must be maintained. Art. 19 TEU is a constitutional basis for the shared judicial mandate and responsibility. The right to a fair trial and judicial independence functions as a guarantee for the effectiveness of all EU-derived rights and for the safeguard of the EU values.
New wording of art. 19 TEU
These precepts of the case law should find their way into the Treaties. Codifying the case law of the Court into the Treaties is no stranger to EU law as the locus standi of the European Parliament prominently shows. Such a codification would enhance the visibility of the Union’s constitutional essentials while also speaking more clearly to the citizens about the identity of their European legal order. In times of war and the rule of law demise, the messaging in the existential terms has never been more crucial. The road map offered here should be defined by the following signposts.
First, amend art. 19 (1) TEU first sentence by making an explicit reference to the role of independent national courts in ensuring together with the Court of Justice that the law is observed and thus to finally anchor the European mandate of these courts directly into the TEU:
“Independent national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly of ensuring that in the interpretation and application of the Treaties the law is observed”.
Second, amend what is now art. 19(1) second sentence by introducing a new art. 19(2) that would include direct reference to art. 2 TEU and art. 4(3) TEU:
“The Member States are obliged by reason of the principle of sincere cooperation set out in Article 4(3) TEU, to ensure, in their respective territories, the full application of and respect for EU law. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law in accordance with art. 2 TEU”.
Third, add a new art. 19(3) TEU stating that:
“Every Member State must ensure by reason of the principle of sincere cooperation set out in art. 4(3) TEU to ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, are fully independent and meet the requirements of effective judicial protection”.
The case-law has also made crucial connection between Article 47 of the Charter on the right to an effective remedy and to a fair trial and Articles 2 TEU and 19 TEU. Therefore, for reasons of clarity and internal coherence, a reformulation of Article 47 of the Charter should be also considered to reflect this emerging case-law. Anchoring art. 2 TEU and art. 19 TEU in art. 47 of the Charter would create important synergies between two constitutional documents of the Union and make the effects of the case law more visible for the citizens. A new sentence would then read:
“The requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected by the courts within the meaning of art. 19 TEU and that the values common to the Member States set out in Article 2 TEU will be safeguarded.”
June 2022: We are past beyond the wake-up call
While the Preamble to the TEU should explain at the meta level why we came together and created a community, art. 19 TEU must be read as setting out the constitutional essentials that explain how and what we do when come together. Revisiting art. 19(1) TEU along the lines suggested here would thus invite a much-neglected discussion on what it means to be a Member State of the Union. The rule of law as the expression of the ideal of “law” in art. 19(1) TEU must be understood in 2022 as a fundamental principle with a clear identifiable minimum legal content that entails obligations binding on all EU actors. While it has implicitly underpinned the original Treaties in 1951 and 1957, it must continue to do so explicitly more than sixty years afterwards.
As the EU moves forward and ponders and narrates its myths, the memory of why states joined the European integration project in 1952 is of fundamental importance: to make sure that the excesses of the no-holds-barred majoritarian politics would never be repeated on the European continent. Therefore, the European elites must be challenged to move out of their comfort zone always marred by empty institutional tinkering and self-congratulatory patting on the back. Instead, they must finally internalise the hard truth that with everything that has happened in Poland since 2015, the European Union project finds itself well beyond a critical juncture. This is where art. 19(1) TEU must be put front and center as the symbolic reservoir of what the union of law should stand and strive for. The mutually intertwined rule of law, the judicial independence and effective judicial protection contribute to the emergence of a non-negotiable core of the European public space and serve as the benchmarks of European constitutionality. Today it must be made clearer than ever that those who reject this core by doing bad things at home betray the foundations of the post-war European settlement: rule of law, human rights, and the culture of constraint. Their actions are simply not within the range of what is acceptable for, and expected of, a good democratic liberal Member State. In 2022 and beyond the ethos of membership must be about good faith and practice that continues to renew our commitment to a Europe of law, and not a mere Europe governed by a majoritarian sleight of hand and momentary impulses.
Revisiting art. 19(1) TEU must be read as the litmus test for the European belonging and identity: “Commit to the law and you belong, reject the authority of the law and you do not belong.” The European discourse is in dire need of accepting that there is simply no middle ground here. Only those states who are ready to profess such a manifesto merit being called a “Member State of the Union”, a noble title that must be earned by repeteadly doing good things at home and abroad.
All this is a very tall order indeed, but such was always the dream, goal, and aspiration of “creating an ever-closer union” not merely among the peoples of Europe but also among “good and law-abiding Member States”. Does this dream stand for anything in A.D. 2022 and do the Member States still care?