The Case for Legal Interventionism - The Guiding Light of the Court of Justice in the EU Rule of Law Crises: A Study of the Approaches of the Court of Justice and the Commission of the European Union in Responding to Rule of Law Backsliding in the Republic of Poland

AuthorKate Frisby
PositionCandidate with the Law Society of Ireland and will soon be taking up a position as a trainee at the European Parliament in Brussels
Pages19-48
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THE CASE FOR LEGAL INTERVENTIONISM THE GUIDING LIGHT OF THE
COURT OF JUSTICE IN THE EU RULE OF LAW CRISIS:
A STUDY OF THE APPROACHES OF THE COURT OF JUSTICE AND THE
COMMISSION OF THE EUROPEAN UNION IN RESPONDING TO RULE OF LAW
BACKSLIDING IN THE REPUBLIC OF POLAND
Kate Frisby*
A INTRODUCTION
The European Union is founded on the values laid down in Article 2 of the Treaty on European
Union (TEU), amongst them respect for human dignity, democracy, equality, the rule of law
and human rights.
1
The Court of Justice of the European Union ruled in its seminal judgment,
Associação Sindical dos Juízes Portugueses, that these values are common to the constitutional
traditions of the Member States in a society in which justice prevails.
2
Mader has also noted
that these values form the constitutional identity of the European Union.
3
For many years, little
attention was paid to the foundational values of the Union, as many presumed that compliance
with these values was a given in most Member States as European integration steadily
progressed to new levels. However, in recent years, we have witnessed the gradual erosion of
respect for these foundational values, in particular democracy and the rule of law, and have
discovered how much compliance with these values has been taken for granted in some
Member States, as the rise of illiberal, populist and authoritarian political regimes across
Europe becomes undeniable.
4
Respect for the rule of law is one of the preconditions for
membership of the Union as laid down in Article 49 TEU and further specified by the
* Kate Frisby is currently an FE-1 Candidate with the Law Society of Ireland and will soon be taking up a position
as a trainee at the European Parliament in Brussels. She graduated from University College Cork in 2018 with a
First Class Honours Bachelors degree in Law and French and graduated from Leiden University with an LLM in
European Law in 2019. Her main areas of interest are EU law and corporate law.
1
Consolidated version of the Treaty on European Union [2012] OJ C326/01.
2
Case C-64/16 Associação Sindical dos Juízes Portugueses v Tribunal de Contas [2018] ECLI:EU:C:2018:117,
para 30.
3
Oliver Mader, ‘Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value
Homogeneity in Times of Persistent Challenges to the Rule of Law’ (2018) 11 Hague Journal on the Rule of Law
113, 118.
4
For a review of the rise of the illiberal regime in Hungary see Bojan Bugaric, ‘Protecting Democracy and the
Rule of Law in the European Union: The Hungarian Challenge’ The London School of Economics and Political
Science Europe in Question Discussion Paper 79/2014
tute/LEQS%20Discussion%20Paper%20Series/LEQSPaper79.pdf>
accessed 24 February 2020; for an overview of th e political challenges facing Poland, see Wojciech Sadurski,
‘How Democracy Dies (in Poland): A Case Study of An ti-Constitutional Populist Backsliding’ (2018) Sydney
Law School Research Paper 18/2018, 1> accessed
24 February 2020.
(2020) 19 COLR 20
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Copenhagen Criteria.
5
However, there seems to be little active supervision of rule of law
compliance in the Member States once they have acceded to the Union and indeed, it has been
contended that ‘the Copenhagen criteria used in accession negotiations are largely insufficient
to provide legal guidance on adherence to EU values’.
6
Mader contends that it is important that
the Union not only enforce the Article 2 TEU values against offending Member States, but also
that they actively supervise and encourage respect for the rule of law.
7
At the outset, the concept of the rule of law should be explained, as much of the paper will
focus on the ways in which it is being undermined by the Polish authorities and how the EU
can respond to this situation. The rule of law within the EU legal order was traditionally a
vague notion and these vague norms set out in Article 2 TEU lacked the legal implementation
which would allow them to be fully justiciable principles which could be ruled upon by the
Court.
8
Therefore, the question of rule of law enforcement was always going to be ‘a hard nut
to crack’ due to the values’ lack o f specificity and absence of clear implementing principles
which would make them fully justiciable.
9
However, in recent years the Court of Justice has
taken steps to define and operationalise this value within the EU legal order so that the
Commission can more easily enforce the rule of law against backsliding Member States. The
Venice Commission lays out certain benchmarks of the rule of law, namely, legality, legal
certainty, prevention of abuse of powers, equality before the law and non-discrimination,
access to justice and the right to a fair trial.
10
While there is no specific definition of the rule of
law provided by the Court of Justice within the EU legal order, it came close to articulating a
definition of the rule of law when it stated that the European Community is ‘a community based
on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review
of the question whether the measures adopted by them are in conformity with the basic
5
Copenhagen European Council Meeting Conclusions 1993.
6
Michael Blauberger and Roger Daniel Kelemen, ‘Can Courts Rescue National Democracy? Judicial safeguards
against democratic backsliding in the EU’ (2017) 24(3) Journal of European Public Policy 321; see also, Dimitry
Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of
Democracy and the Rule of Law (Kluwer Law International 2004).
7
Mader (n 3).
8
Kim Lane Scheppele and Laurent Pech, ‘Is the Rule of Law Too Vague a Notion?’ (Reconnect Blog, 1 March
2018) of-law-too-vague-a-notion> accessed 24 February 2020;
see also, Luke Dimitrios Spieker, ‘From Moral Values to Legal Obligations: On how to activate the Union’s
common values in the EU rul e of law crisis’ (2018) Max Planck Institute for Comparative Public Law &
International Law Research Paper 24 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3249021> accessed
25 February 2020.
9
Bugaric (n 4) 6.
10
European Commission for Democracy Through Law (Venice Commission), ‘Rule of Law Ch ecklist’ (Study
711/2013, Council of Europe 2015).

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