A Closing of Ranks

On 11 and 12 October the Court of Justice of the European Union sat in Full Court composition (a rarity) to hear Hungary’s and Poland’s challenge of the legality of the rule of law conditionality regulation (Regulation 2020/2092) under an expedited procedure (another rarity). That the Court opted to accumulate rarities underlines the importance it attaches to this case. Its ruling will follow (hopefully shortly) the Advocate-General’s Opinion announced for 2 December 2021. It will most likely reconfirm that the Union legal order is based on clear and binding rule of law norms, and that these must, of legal necessity, apply across all EU policy fields, including the EU budget. It will be a judgment of great significance about the very nature and purpose of the EU.

Legally the case centered around four issues. (1) Is Article 7 TEU the only and exclusive EU legal avenue to deal with rule of law issues, and should the Court therefore only be able to look at rule law issues after a (European) Council act under Article 7 TEU (i.e. under Article 269 TFEU)? (2) Is Article 322(1)(a) TFEU the correct legal basis for an instrument that introduces additional safeguard measures to ensure the protection of the EU budget? (3) Are rule of law aspects with a direct bearing on the soundness of financial management laid down in Articles 3 and 4 of the Regulation (judicial independence, prosecutorial independence, effectiveness of legal remedies) sufficiently clear as Union law concepts, and therefore capable of guaranteeing legal certainty in the application of possible measures to Member States? (4) Are criteria the Commission can use to determine the proportionality of measures to block funds, laid down in Article 5(3) and recital 18 of the Regulation, capable of guaranteeing legal certainty in the application of possible measures to Member States?

A full blow-by-blow account of arguments (and in the case of Hungary and Poland, non-arguments) made and questions asked by the members of the Court can be found here. Little in the hearing indicated that the Court was especially critical of arguments and justifications presented by the European Parliament and Council as co-legislators. The answers to the four issues – contrary to the challenge by Poland and Hungary – are very likely, respectively, no, yes, yes, yes (perhaps with a slight instruction by the Court as to how different elements in these clauses should be read together). Therefore, the significance of the hearing lay elsewhere.  Five moments stood out.

Moment 1: Listening to judges’ footsteps in a salle d’audience

It takes a while for almost 30 people to take their seat around a huge demi-circle of a table. In a community of law there is something especially poignant when they are the highest judges slowly and serenely walking in. Interest in this hearing is so overwhelming that those wishing to witness it can only watch it on screen in another room across the hall from the courtroom. Some twenty journalists sit in yet another room. Some of them will, for the first time, experience that – no – a Court hearing is not easy to follow, even for well-informed euro-observers. That it is structured around a list of questions made available in advance to the parties, but not the wider public.

Still, they came because highly political issues loom over the hearing. Is there really something to the Hungarian and Polish legal challenge? Will something be revealed about the likelihood these Member States may still get access to COVID/Recovery funding? Is it not very odd for the Polish government to stand before the very Court whose authority it has just openly rejected by instructing a Constitutional Tribunal in-name-only to issue a bombshell statement undermining a key-tenet of Union law (see here). Even if the language spoken is highly technical legalese, the relevance of the film projected here escapes no-one.

Moment 2: Germany and France intervene

Member States are all equal. But, politically speaking, some are more equal than others. It matters and resonates when Germany shows up in Luxembourg and helps defend the legality of a piece of legislation. And it matters too that France is there, along with Belgium, Luxembourg and The Netherlands. Five out of six of the EU’s founding members in a courtroom together in a case of foundational significance. Denmark, Finland and Sweden, as well as Ireland and Spain also sent their agent to help the Council and the European Parliament, the co-legislators, defend the rule of law conditionality regulation. The Commission, as Guardian of the Treaties, is there too. Thirteen sets of legal agents speaking with one voice in the direction of a Full Court is quite the spectacle. 

Member States, unlike at political meetings, speak without diplomatic filter. This is a court of law. The Danish agent states: “it is very sad in and of itself that EU co-legislators thought it at all necessary to develop an instrument like under discussion today. After all, all Member States freely entered into all EU obligations. These simply included basic values”. The Irish agent adds: “without independent investigation and prosecutorial services, and without independent judicial review, sound financial management of the EU budget simply cannot be guaranteed”. The Hungarian and Polish government are isolated. Supporting only each other. As the Commission agent puts it: “an independent observer could be forgiven for asking herself whether the different parties in this dispute are discussing the same legal order”. Touché.

Moment 3: President Lenaert’s unprovoked (but deliberate) billion-euro question

It didn’t take long. It is the second day of the hearing, Tuesday. This is the Q&A session. The Court president, during the questions asked by Judge-rapporteur Arabadjiev, interrupts and asks the co-legislators: “if a Member State refuses to implement a Court ruling, would it be “in trouble” immediately under the rule of law conditionality regulation, given that compliance with binding Court rulings is an essential element of complying with the rule of law in the Union legal order?”. There is subtle stress on the second part of the sentence.

The answer is obvious. But then again, it is not really a question. It is a message from one EU institution president to a few others, in Brussels. Some rule of law elements are so fundamental that they cannot be negotiable, even when very large sums of EU money are at stake. Including when not disbursing such EU money, such as EU Recovery and Resilience (COVID) funds, may complicate decision-making on other files or delay pushing through political priorities. It feels intentional. It is highly consequential. This is the president of the Court, surrounded by all other judges, drawing a red line.

Moment 4: Judge Safjan’s constitutional identity-question to the Polish government representative

Tuesday, sometime late morning. Court President Lenaerts gives the floor to his Polish colleague, Judge Safjan. His question is addressed to the representative of the state of his own nationality. Reacting to the repeated argument about the supposed inherent vagueness of rule of law principles, and that this cannot be resolved at EU-level by the EU-legislator or the Court, he asks: “do you really mean to say that the rule of law can only be defined with reference to national identity, or does the EU itself have a constitutional identity that contains the rule of law, as stated in Article 6 TEU?”

The Polish agent does not answer the question to the satisfaction of her compatriot on the bench. “Do you agree that the rule of law is part of the EU’s constitutional identity?”, he asks – again. The Polish agent rephrases her answer. She states: “We do not challenge the importance of rule of law principles. We just think they can – and should – only be concretised at the national level”. A clash of two Polands. Only one  consistent with Union law.

Moment 5: Luxembourg rain, separate taxis, a new business-as-usual

Tuesday, around 17.00. Outside the Court building. It is raining, like it so often is in Brussels too. Three groups of legal agents, having represented three EU institutions, have taken off their togas and are each waiting for separate taxis home. The common front they have publicly formed away from the intense limelight of Brussels, how they have closed ranks with the help of ten Member States in unprecedented powerful fashion, dissipates in typical euro-anonymity. But their faces show. There is something about the way they wave each other goodbye. This was an essential one. This one could not be lost. They knew it when they prepared together. And they know they will win.

What they leave behind at the Kirchberg Plateau is a sense of a new business-as-usual. One where the rule of law is a legally undisputable and non-negotiable foundation and cornerstone of all EU activities, including in how EU monies are disbursed. It is now for their political masters in Brussels to pick up the ball. And run with it, finally.