by Michalis Trepas
All happy families are alike; each unhappy family is unhappy in its own way.
– Leon Tolstoy, Anna Karenina (1878)
Don’t tell me they didn’t have a choice. Now the whole world stands on the brink, staring down into bloody Hell, all those liberals and intellectuals and smooth talkers …and all of a sudden, nobody can think of anything to say.
– Rorschach, Watchmen (1986)
It takes a literary genius to distill and expand the philosopher’s wisdom in few words. It takes an unhinged fatalist vigilante to see bloody messes in only black and white. It takes less to sense that rule of law can be chipped away from many facets, slowly, one piece at a time. At least, we “liberals and intellectuals and smooth talkers” do talk about it. Shawnelle A. Martineaux (IQ 2.2) recounts ails that gnaw at the principle, focused on Trinidad and Tobago, in a piece anchored in liberty and underpinned by the “common law” tradition. Her approach acknowledged the judiciary’s vital purpose, at times putting it on the edge between overstepping and reluctance. I intend to use her sharp insights as a loose template, with a spotlight on the EU and the “continental law” tradition.
Following Martineaux’ lead, I would argue that the bird’s view in general, and the status this side of the Atlantic in particular, are disquieting, too. World Justice Project (WJP), an independent non-profit organization, every year publishes a “rule of law index” by country, via measuring eight components. The index takes the “ethereal” principle and turns it to a corpus of expectations relatable to everyday life, as it includes angles one may have a blind spot on or consider as “given”. Its findings, in a span of years-scale, are telling. WJP notices the ugly trend: For the sixth year in a row, rule of law has declined in most countries. Or, in other words, enter the “rule of law recession” world. The picture does not get any rosier, quite the opposite, if one narrows the sample to the so-called developed world countries. Martineaux only en passant touched upon the US situation.
In the European Union (EU) land, one finds rule of law at first row, among the Union’s values in art. 2 Treaty of the EU. It entertains a somewhat unexpected story and a not so illustrious present. The foundational Treaty of Rome (1957) noted “economic and social progress” and “peace and liberty,” but not rule of law. As EU legal order developed “from” the national legal orders and at the same time “beyond” them, a sprawling nexus of enactment, interpretation and enforcement of different types and levels of legislation had to be molded to a workable scheme. The institutional innovation of a supranational court, along with some boldness, provided for a way forward. The Court of Justice of the EU, not far from the vein of Martineaux’ judicial activism, charged to the governance void. Its case-law (Van Gend en Loos v Nederlandse Administratie der Belastingen, Costa v ENEL) rendered that EU law has direct effect within member states, set the blueprint for rule of law respect at Union level and outlined the critical principle of primacy: EU law takes precedence over national law (even constitutions), regarding those policy spheres where the Union is sovereign (it has exclusive competence, like for example competition; there are also shared competences, competences exclusive to member states, and some special ones). Another famous judgment, (Parti écologiste “Les Verts” v European Parliament) imprinted rule of law to the Union’s legal identity for good, before it was added to subsequent treaty provisions. This elaborate arrangement required good-willed deference (amidst lots of bickering). An effort to constitutionalize EU, thus buckling-up the architecture, was put to rest by referenda.
EU, a top-down, at times aloof initiative, in its democratic deficit and low salience, never ceased to be susceptible to either legit criticism or unfair scapegoating. Now, thirty years after the Treaty of Maastricht (1992), which consolidated the “ever closing union of peoples”, the introspective, soul-searching output by the supranational apparatus reveals lingering concerns, as does legal theorizing. For instance, some years ago, the European Central Bank (ECB) hosted a panel themed ‘Rule of law: what is the fate of the rule of law in the EU?’ under the auspices of its prestigious annual Legal Conference. Verfassungsblog, a leading forum “on matters constitutional” regularly features articles on rule of law and its complications. And if all this seems somewhat haughty or detached, more recently, the Head of EU Fundamental Rights Agency (FRA, another EU layer of human rights monitoring) urged for the defense of rule of law:
In other words, no matter where we are we must be ever vigilant to protect our society and its institutions. In practice, that means doggedly defending the interconnected trio of democracy, human rights and the rule of law… And when I refer to rule of law, I speak of the respect for legal certainty, equal access to justice in independent courts, accountability under law, ensuring non-discrimination and full respect for all human rights’ legal obligations.
Ever the usual faceless EU bureaucrat, he had the cheek to comment on the relatively poor performance of EU member states in WJP ranks and to offer scathing remarks on various slights regarding the respect of the contested principle: Border policy, discrimination, data/ privacy protection and abusive lawsuits against public speech (the so-called SLAPPs). Granted, the international environment has not been conducive – Brexit, Covid 19, war. But the wound runs deeper. In fearful symmetry with Martineaux, FRA Head also highlighted the uneasy position of the judiciary, within and without. Indeed, dark have been judges’ dreams of late. For one thing, European Court of Human Rights (ECHR, not an EU part, but its jurisprudence carries clout as top courts tend to cite each other in their expositions) and CJEU deliver more judgements than one would normally expect against EU member states in things rule of law. The latter’s tendency to tactically refuse or delay implementing them just makes it even more embarrassing.
Within the EU legal constellation, the beast takes the shape of an “ouroboros” that mirrors bad qualities Martineaux noted, legislative authoritarianism and judicial activism. Certain governments have meddled with the independence of judiciary, eliciting EU reprimands and damning CJEU judgements. Wayward governments have pushed back, in turn, by hampering collective decision-making, while a few national high courts have scolded CJEU for overreach and looming threats to their respective “constitutional identities”. To wrap things up going forward, EU Commission initiated a yearly “Rule of Law Report,” (in flawless lingo bureaucratica) “a preventive mechanism, aimed at improving the rule of law situation across the EU, raising awareness of challenges and facilitating solutions early on to prevent deterioration.” The process outlines the central role of rule of law respect and involves actions that range between dialogue with and sanctions against perceived “bad apples.”
The institutional awkwardness found an apogee of sorts – a banner for slippery slopes fans – back in 2020, when the continent’s most respected high court engaged the CJEU (Heinrich Weiss and Others, aka the Weiss Saga): A complaint was brought before the German Federal Constitutional Court (GFCC), regarding the legality of asset purchases – quantitative easing – ECB conducted from 2015 on to counter deflation. The policy impacted not only interest rates, but also financing conditions for member states. This raised concerns for indirect implication of German taxpayers, without a democratic seal of approval, as ECB is an unelected, independent by EU treaty body, that holds exclusive power in matters monetary (for those EU member states that have also joined the common currency). The referral, in short, asked whether ECB had overplayed its hand, unlawfully crossing over to fiscal space, and if its policy tool of choice was “proportional” (a way to say in legalese “suitable, necessary, and beneficial at the face of its allover costs”). CJEU replied that ECB did not exceed its designated boundaries and the purchases conformed to the proportionality test. GFCC, while upholding the legality of the program, opted to substitute “deference” with “defiance” with regards to the rationale of the EU Court. Its reasoning used harsh words, even coining the European Court’s decision as partly “ultra vires,” raising eyebrows. A duo of legal professors lamented:
[I]f every constitutional or high court of each of our Member States were to emulate the German example, it would really spell the end of the EU as an integrated legal space of justice and the rule of law and fatally damage the single market. In the name of the rule of law, the rule of law was breached; in the name of proportionality, the German court trammeled all over the exigencies of proportionality in the delicate, dialogical, relationship between Member State courts and the Court of Justice […]
The Saga did not come out of the blue, either. The Eurozone sovereign debt crisis of the 2010s prompted emergency legislation and judicial review loops at the national and the EU level. Other monetary “unconventional” tools were also scrutinized then (Gauweiler and Others). As one would expect, individual rights – particularly property rights – gave way before aggressive fiscal retrenchment in the name of “general interest”, namely, to avert bankruptcy. Courts generally reasoned along these lines: (i) stringent measures come from the democratically elected lawmakers (ii) they relate to complex economic matters; thus, the lawmakers are credited with a wide margin of appreciation (iii) the courts cannot and should not replace the lawmakers (for example, Koufaki and ADEDY v Greece). The Saga affair, on the other hand, involved a technocratic agency acting in its sole power, upsetting individuals in doing so. Here the EU Court, like in Gauweiler, went like this: (i) ECB’s mandate and independence are conferred on by democratically elected politicians (ii) it enjoys a wide margin of appreciation due to the complex nature of the subject at hand (iii) the Court cannot and should not contest a specialized agency’s expertise, while the latter pursues its mandate.
The symmetry, even if not fearful, is stark. In both strands of jurisprudence, the pendulum between activism and reluctance swung hard to the latter. Judges neither intervened at the face of grave national economic tidings, nor tried to impede monetary policy, opting for a lax standard of review. I will not fault them for this, but at times the courts’ reasoning seemed more inclined to justify, rather than critically inspect, policymakers’ choices. Shifting further to the “technocratic” policy cases, US experience offers some smatterings of best practice: Courts have bestowed upon the Federal Reserve System a delineated core of non-justiciable actions, so that it can exercise its monetary duties unhindered. In the EU realm, ECB is subject to CJEU review at large, but legalistic sophistries over blurry authority limits muddle the appropriate standard of review, twisting the impartial application of law. In addition, the whole “judicial scrutiny” mantra could potentially crowd-out other attempts to accountability and transparency, as central banks and other similar agencies also act in domains like regulation, or privacy.
In contrast with Rorschach’s assertiveness, rule of law in the EU is hardly hanging on the brink. This is more of an elegy we are dealing with. It buckles but does not break, I think, yet public trust to its watchmen wanes. The FRA Head told us so. Let us see how things will wax again.
Michalis Trepas is a contributing editor to Isonomia Quarterly and lives in Athens, Greece with his family. Send him mail.
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