Who guards the guardians in Europe?

European judges are taking legal action, given the failure of EU institutions to uphold the rule of law.

Over the last decade the European Union has been involved in a stand-off with Poland and Hungary over breaches of the rule of law and other EU common values—such as democracy, equality and human rights—by the two countries.

While the European Commission has opened the procedure provided for in the Treaty of European Union (article 7) to hold governments accountable when their actions threaten the bloc’s core values, the Council of the EU has avoided holding a vote which could have stripped these countries of their voting rights. It has done so on the assumption that Hungary and Poland would cover one another in the European Council through their veto power, thus blocking the adoption of any such sanction.

Conditionality climbdown

In an attempt to break the political impasse, the commission tried to set up alternative channels of control over rebellious member states, based on peer pressure—such as the annual rule-of-law report. But this was to no avail.

More recently, the EU institutions also agreed that disbursement of funds from the NextGenerationEU package, established to stimulate recovery from the pandemic, would be rendered conditional on respect for the rule of law. Yet while the Hungarian national recovery plan under the package has yet to be agreed, in June 2022 the commission gave a qualified go-ahead to the Polish proposal, followed by the council.

As highlighted by some members of the commission who expressed their dissent, this came despite the Court of Justice of the EU declaring in July 2021 that the Polish government, dominated by the populist Law and Justice party, had breached the rule of law with its ‘reforms’ of the system for disciplining judges. The decision was however given political credence by Poland’s generous welcome of 1.5 million Ukrainian refugees.

The commission proposal made disbursement of funds conditional upon compliance not with the ruling by the court but with a set of less demanding ‘milestones’. Instead of being obliged to reinstate suspended judges, as the CJEU had insisted, Poland was now merely required to contemplate the possibility.

The climbdown was denounced by the European Parliament and members of the legal community. Not only has the commission failed (once more) to act as guardian of the treaties. By tacitly allowing EU member-state governments to delegitimise the CJEU, it has—supported by the council—breached the very rule-of-law principle it is supposed to uphold.

Decision challenged

This unparalleled situation unveiled the existence of yet another oversight mechanism over the respect of EU core values. If the EU institutions reveal themselves unable—or unwilling—to uphold the rule of law, the baton must pass to civil society. Which is exactly what happened last week, when four European judges’ associations challenged the decision approving Poland’s recovery plan in an application to the General Court of the EU.

This is not only the first time that European judges have come together to file an action before the Luxembourg-based court—going against their own governments—but also the first lawsuit directed at preserving the EU judicial system as a whole. While the immediate goal of the judges’ associations is to express solidarity—particularly with the Polish judges suspended and subject to disciplinary actions for applying EU law—their ultimate intention is to enable the court to reclaim its authority vis-à-vis the non-compliant member states and the council.

This unprecedented case carries major legal and political ramifications, which transcend the spat between Brussels and Warsaw. Legally, it reveals a thus-far-neglected channel to uphold the rule of law within the EU legal order. This appears potentially capable of filling the gaps left open by an incapable or unwilling commission and a complicit council.

When the EU institutions fail to uphold the rule of law, and depart themselves from CJEU rulings, the European judiciary might act as the ultimate guardian of the treaties, safeguarding the integrity of the EU legal order. This could be done directly, as with the European judges’ associations’ action, or indirectly, via a referral to the CJEU by national courts.

Powerful reminder

Politically, the case is not only set to play a role in the assessment of the ‘milestones’ crafted for Poland and therefore its chances to obtain the recovery funds before the parliamentary elections in autumn 2023. It could also impinge on the commission’s evaluation of the Hungarian national plan, the only one still to be approved.

Regardless of its outcome, this unparalleled case has already sent a powerful reminder to all EU institutions: any departure they might undertake from the rule of law will not go unchallenged. The EU judicial system was designed to resist the worst possible attacks—even when they come from within.