Solving the Copenhagen Dilemma

One of the immediately apparent flaws of the legal-political organization of European Union enlargements consisted in the so-called ‘Copenhagen dilemma’: EU’s inability to reshape the legal-political developments in the Member States falling outside the material scope of EU law post accession date. The ‘dilemma’ was directly connected to the nature and strict interpretation of the principle of conferral: the EU would simply have no competence. By proclaiming an entirely new ‘non-regression’ principle in EU law based on the connection between Articles 49 TEU (EU Enlargement) and 2 TEU (EU values, referred to from Art. 49), the Court of Justice achieved huge progress in addressing a well-known lacuna undermining the EU legal order. ‘Non-regression’ consists in the blanket prohibition of any national rules, including constitutional provisions, which could ‘constitute a reduction, in the state concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence’ (para. 65). The ‘non-regression’ principle is a new important direction in the notable fight for the EU rule of law started with the discovery of EU competence in, in particular, the area of judicial independence and the organization of the judiciaries in the EU Member States, via the re-interpretation of Article 19(1) TEU in the Portuguese Judges decision

While the Portuguese Judges and their glorious progeny as analysed, inter alia, here and here, will undoubtedly be counted as key legacy of Baron Lenaerts’ Court, ‘non-regression’ is a step further. This step potentially opens the door to extending the scope of EU law interventions justified by the Rule of Law beyond the ambit of Article 19(1) TEU and the expression of the essence of effective judicial protection in Article 47 of the Charter. Otherwise put, while the Portuguese Judges brought a significant reinterpretation of the scope of the limits of the Court’s possible intervention, connecting its ability to correct particularly atrocious violations of the Rule of Law at the national level limited to matters of judicial independence and irremovability due to the very nature of Article 19(1) TEU as the ‘activator’ or Article 2 TEU values (among many other possibilities), the limits of this approach have been quite clear: not all the vital values of Article 2 TEU bear a relation with the judiciary. Indeed, the Rule of Law taken alone is already significantly broader, as Laurent Pech has demonstrated. Repubblika with the non-regression rabbit masterfully put out of the wizard’s hat by Lucia Serena Rossi, the juge rapporteur, solves this problem, since notwithstanding the Court’s current allusion to Article 19(1) TEU in para. 65 of the judgment, non-regression cannot in all cases be issue-specific. This is thus an overwhelmingly significant generalizing upgrade of the ‘valeur juridique des valeurs’.

The very specific reading of one particular value of Article 2 TEU is not enough. Indeed, among so many values deserving protection, including of course not only the most obvious candidates, such as democracy and fundamental rights (for a powerful case for non-regression in fundamental rights protection in the EU legal order, see eg Armin von Bogdandy and colleagues as well as, more recently, Dora Kostakopoulou), but also all the other aspects of the rule of law beyond the margins of judicial independence, the Court had to find the way to potentially build a bridge to them all. This is what it started doing in Repubblika – building upon the opinion of the EFTA Surveillance Authority in A.K. decision that once a certain level of the protection of judicial independence has been attained, there should be no erosion of the guarantees adopted for that purpose (with reference to Article 49 TEU). A seemingly straightforward case from the smallest EU Member State is thus a grand opening marking something new and potentially truly far-reaching.

Don’t go to bed with the bad guys

The case will be welcomed by all due to the very non-tenability of living with the core problem it is starting to tackle: the Copenhagen dilemma. When EU enlargements are being prepared, the EU is free to ensure, to paraphrase Jan Klabbers, that it ‘does not go to bed with bad guys’. To do that, the Copenhagen criteria and countless Copenhagen-related instruments have been prepared by Union in the context of the promotion of deep institutional reforms and the assessment of all the aspects of performance of the national legal, economic, and political systems of the Member States-to-be: a customary EU enlargement law was born. Of crucial importance is the fact that it was not subjected to the same scope of delegation limitations as any other aspect of EU law, since, precisely, what is now the values of Article 2 TEU are equally, inseparably, meaningful in the context of purely national as well as EU competence. The whole point of adding the Copenhagen criteria next to the pre-accession requirement to internalize the whole body of the acquis was that the acquis, naturally limited by EU law’s scope, was not about these values. All such pains and labours notwithstanding, the EU has now found itself precisely where it did not want to be: in bed with those very bad guys. Worse still, so far, the bad guys have absolutely no intention to leave, warnings of a possible Polexit notwithstanding. The pre-accession conditionality in the sphere of democracy and the rule of law did not manage reach its only goal, that is to prevent what has happened in Poland and Hungary: it failed. Be that as it may, the failure would be less irreparable, if not for the unfortunate realization by the Commission and others that when the clock chimes ‘accession’, all types of all-intrusive behaviors telling states how many judges to appoint, how many readings to have in parliament and what kind of public administration school to put in place has to stop. It falls outside of the scope of conferral. This midnight boundary when crystal carriages tend to turn into pumpkins and pre-accession justice dreams into Zbigniew Ziobro is what the Court has potentially undone in Repubblika. The importance of this undoing is huge for three reasons:

Firstly, we have to remember that there have never been more closely scrutinized countries in terms of EU values and institutional reforms that Poland and Hungary – undoing the midnight boundary of the Copenhagen dilemma could thus allow the Court to try to remedy the consequences of the Commission’s pre-accession failure, where heightened scrutiny did not translate into a guarantee against democratic and rule of law backsliding. In this context, it is definitely useful to delimit a proper boundary between ‘bad’ (as in C-619/18) and ‘tolerable’ (according to the 2018 Justice Scoreboard, most Member States have it) involvement of political actors into decision-making on judicial appointments and careers. The defense “we only do what others are doing” is frequently referred to by these two Member States (like in the White Paper of Poland; for its criticism, see here and here).

Secondly, to emerge as a promised constitutional system the EU was bound to start drawing on the substantive values instead of declaring them off-limits. Failing to do this would produce a system which boasts enforceable values only vis-à-vis those willing to enter – but not vis-à-vis those who are in. Repubblika tackles this, but only in a deeply discriminatory manner. The problem of valuing the moment of accession is obvious: what about Greece, which, according to the Commission’s own assessments, was barely ready to accede? Are its institutions to be allowed not to fall below the 1981 standard, while for Malta we move more than two decades forward? Could the point of reference precede the Copenhagen criteria of 1993 at all? Or do we just use Article 49 TEU as legal grounds for non-regression, while non-regression itself is dynamic and not linked to a particular moment – in other words, where Member States make a progress, there is no way back?

Thirdly, and in direct connection to the previous two: the belief that there will be no democratic, rule of law and fundamental rights backsliding once a state joins the Union has been baseless all along. The Court is now coming to terms with this. One may wonder what’s next – the educational rights of persons belonging to minorities in Latvia, restrictions on family life of LGBTIQ in Hungary or the Global Security Act in France? There’s quite a crowded field of regression examples. Repubblika, with its crucial new principle, has an overwhelming potential to do justice.