If we are to believe Europa
– the EU’s official website – the EU is based on the rule of law because
“everything that it does is derived from treaties, which are agreed on
voluntarily and democratically by all Member States.” The clear and succinct nature of this explanation, regrettably, does not
reflect the complex nature of the EU principle of the rule of law. From a
preliminary overview of the EU constitutional framework, one can easily deduce
that this principle cannot simply be equated, for instance, with the basic
principle of conferred competences. For the sake of clarity, a preliminary
presentation of the rather tortuous history of the EU rule of law, and how this
ideal progressively became a key constitutional principle, will first be
offered. In a nutshell, the EC Treaty did not initially contain any explicit
reference to the rule of law and it was not until a 1986 judgment of the Court
of Justice that the concept was explicitly referred to. This first judicial
reference was followed, starting in 1992, by multiple references made to the principle of the rule of law in the EU’s
founding Treaties.
From Court’s Dictum…
In Les Verts, the Court of
Justice, for the first time, described the EC as a “Community based on the rule of law.” This original formula appears to directly derive from the German term Rechtsgemeinschaft
coined by Walter Hallstein, a renowned German Professor of Law who later became
the first President of the European Commission from 1958 to 1967. In the French version of the judgment, Rechtsgemeinschaft is translated
to communauté de droit. The Court, albeit obviously familiar with the
classical notions of Rechtsstaat or Etat de droit, which are traditionally used by national
lawyers to translate the English rule of law, has mostly refrained from making
any use of them. The most likely explanation for the Court’s reluctance to rely on the more
classic national concepts – a reluctance which is difficult for English
speakers to note as the English phrase does not refer to a state or government
– is that Community judges were reluctant to use terms which could give
ammunition to those who have constantly feared and denounced the emergence of a
European “Superstate.” The use of the term Gemeinschaft/communauté
de droit – “community based on law” if literally translated – leaves indeed
open the statehood question and the
Member States themselves might not have welcome a judicial description of the
Community as one which is governed by the principle of a “State” (Staat/Etat) governed by law. Another potential explanation is that the
Court wished to acknowledge the existence of a genealogical link between all
the national and EC concepts, but also sought to preserve its
power to construct an “autonomous” European understanding. A succinct analysis of the context in which
the original expression of “Community based on the rule of law” was
adopted will help clarify its core meaning as initially understood by the Court.
In Les Verts, the Court of
Justice had to rule on the delicate question of whether the European Parliament
could act as a respondent in annulments proceedings initiated by a private
party, i.e. a French association known as Les Verts - Parti écologiste. This was no easy legal question, not because of the substantive points raised
by the applicant but because of the eminently constitutional question at issue.
According to what was then Article 173 EEC (currently Article 230 EC), the
Court’s jurisdiction to hear and determine an action for annulment was
expressly limited to actions brought against measures adopted by the Council
and the Commission. In the words of the applicant, this limitation amounted to
a “denial of justice,” an ancient and fundamental legal notion which has
traditionally justified a large exercise of judicial interpretation when the
right to obtain a ruling is at stake. Not unsurprisingly, the European Parliament also realized that it would
politically benefit, as an institution (rather than as a litigant), from
advocating the view that the list of potential defendants in former Article 173
EEC should not be interpreted as being exhaustive. In the name of the rule of law and by reference to the “general scheme” of the
Treaty as well as its “spirit” as expressed in what is now Article 220 EC (“The
Court of Justice … shall ensure that in the interpretation and application of
this Treaty the law is observed”), the Court agreed to reinterpret – some may
say rewrite – Article 173 EEC as not excluding annulment actions brought
against measures adopted by the Parliament intended to have legal effects
vis-à-vis third parties. It is in this context of manifest judicial activism that the phrase “Community
based on the rule of law” first emerged in a key obiter which merits reproduction in extenso:
It must first
be emphasized in this regard that the European Economic Community is a
Community based on the rule of law, inasmuch as neither its Member States
While the Court’s judgment does not
precisely explain the origin and meaning of the rule of law at Community level
– the notion was not yet explicitly mentioned as such in the EC Treaty – it is
clear that the Court implicitly views it both as a positive good in itself and
as one of the fundamental principles underlying the EC’s entire constitutional
framework. This, in turn, explains why, in the eyes of the Court, a “generous
and dynamic interpretation” of the EC’s “Constitution” is not only a legitimate method of interpretation
but may be, at times, preferable to a literal reading. Advocate General Mancini
interestingly derived from the Court’s case law the principle that “the
obligation to observe the law” – a phrasing reminiscent of Article 220 EC previously
cited – “takes precedence over the strict terms of the written law.” As a result, “[w]henever required in the interest of judicial protection, the
Court is prepared to correct or complete rules which limit its power in the
name of the principle which defines its mission.” Two important initial points can be derived from Mancini’s analysis.
Firstly, a purposive interpretation
is both legitimate and necessary when the objective is to correct any eventual
gap in the legal system in order “to meet the requirements of the rule of law.” In such a situation, the Court may exercise “a creative function” and act in a quasi constitutional capacity, which is exactly what the Court did in Les
Verts. Such judicial activism is not necessarily illegitimate. Indeed, it
was obvious in 1986 that ex Article 173 EEC had not kept pace with the
expansion of the Parliament’s powers since the signing of the EEC Treaty in
1957. As Tridimas observes, “as the Community develops, the ensuing increase in
the powers of the institutions has to be accompanied by adequate control
mechanisms, if the rule of law is to be observed.” While some may find this exercise of judicial power objectionable, it is not
unusual for constitutional courts to rely on the principle of the rule of law
to (re)interpret the national constitution and eventually justify an extension
of their jurisdiction or of the legal norms which may used to assess the
constitutionality of public authorities’ actions. Furthermore, in the Community
context, one may refer to Article 220 EC to make the additional argument that
the Court of Justice is actually under a legal obligation to ensure that the
rule of law is observed. While Article 220 EC does not expressly refer to the
rule of law, it has been convincingly argued that the principle is inherent in
this Treaty provision.
This leads to the second important
and more problematic issue raised by Les
Verts: How does the Court of Justice understand the rule of law? AG Mancini
seems to equate it with the notion of judicial protection or control. Although certainly preoccupied with the effectiveness of the individual right
to effective judicial protection – a general principle of EC law which is also
laid down in Articles 6 and 13 of the ECHR – the Court appears to view the rule of law in more encompassing but no less
procedural terms. In other words, the EC is said to comply with the rule of law
because it offers a complete set of legal remedies and procedures in order to
ensure (i) that its institutions (as well as its Member States where relevant)
adopt measures in conformity with the fundamental sources of EC law and (ii)
that natural and legal persons are able to challenge the legality of any act
which affects their EC rights and obligations. For the Court of Justice, therefore, the principle of the rule of law entails
more than the individual fundamental right to judicial protection. It first
provides the foundation for judicial review and implies the existence of
comprehensive and complementary judicial review processes. These processes, in
turn, enable the judiciary to ensure compliance with two key tenets of any
genuine legal system: the principle of legality, that is essentially the
requirement that public authorities enact measures in conformity with the legal
system’s hierarchy of norms and the principle of judicial protection, which in
particular implies the right to obtain an effective remedy before a competent
court for any person whose rights or interests guaranteed by law are violated
by public authorities. To put it differently, judicial review not only ensures
that public authorities respect legally protected “individual” rights and
interests, it also guarantees that these authorities enact measures in
compliance with all relevant superior legal norms.
As a first provisional conclusion,
the Court of Justice’s initial understanding of the notion of “Community based
on the rule of law” can be described as legalistic and procedural as it is
closely related to the traditional and interrelated legal principles of
legality, judicial protection and judicial review, principles which are
inherent to all modern and democratic legal systems. EU lawyers and judges, for
the most part, have welcomed the Court’s rather narrow and formal approach and
would likely broadly agree with Jacobs’ contention that “the key to the notion
of the rule of law is … the reviewability of decisions of public authorities by
independent courts.” Viewed in this light, one may reasonably argue that the rule of law, in the EU,
“has been effectively guaranteed by the wide jurisdiction conferred” on two independent courts, i.e. the Court of Justice and subsequently, the
Court of First Instance. This is not to say that this is how the EU rule of law
should be understood or that better or more effective compliance with this
principle is neither possible nor desirable. For instance, the rules governing
the locus standi of private parties
in annulment proceedings or the persistence of policy areas not subject (or only partially) to the
jurisdiction of EU courts have been regularly criticized. This paper’s aim, however, is not to subject
the EU Constitution to a “rule of law audit” but rather to explore the meaning, scope and impact of the rule of law as a
constitutional principle of the EU. This objective requires the pursuit of our
preliminary assessment of the EU’s constitutional framework. Indeed, a mere few
years after the Court’s first innovative reference to it, the rule of law was
endowed with formal Treaty blessing.
…to a Formalized
“Constitutional” Principle
The formal enshrinement of the rule of law in the EU’s founding
Treaties should be understood in the political context of the time. Following
the end of the cold war and what appeared, for a short time, as the universal
and permanent triumph of the Western democratic and liberal model, European countries agreed to commit themselves to promoting human rights,
democracy and the rule of law as the three fundamental principles on which the
“new Europe ” must be founded. From then onwards, the rule of law became a dominant concept in political and
legal discourses. In these circumstances, the Court of Justice’s relatively original reference to
the principle notwithstanding, it is not surprising that the EU Member States
decided to insert not one but multiple references to the rule of law in the EU
Treaties when negotiating the Maastricht Treaty (1992). These references were
nonetheless largely symbolic at first. For instance, the Preamble of the TEU
merely stipulates that the Member States confirm “their attachment to the
principles of liberty, democracy and respect for human rights and fundamental
freedoms and of the rule of law.” In addition, Article 11 TEU and Article
177(2) EC respectively assign to the EU’s foreign and security policy and the
EC’s policy of development cooperation the same objective of developing and
consolidating democracy and the rule of law and respect for fundamental rights.
A more noteworthy development
occurred in 1997. A new fourth reference was made to the rule of law. According
to Article 6(1) TEU as modified by the Amsterdam Treaty:
The Union
is founded on the principles of liberty, democracy, respect for human rights
and fundamental freedoms, and the rule of law, principles which are common to
the Member States.
While Article 6(1) TEU will be subject to further analysis, it may be useful at this stage to note that the TEU does not offer any
definition of the primary principles on which the EU is said to be founded.
Furthermore, the German and French versions of Article 6(1) TEU make clear that
the Court of Justice’s description of a Community based on the rule of law (Rechtsgemeinschaft/communauté
de droit) is not adopted.
Instead, the EU is said to be founded on the principle of Rechtsstaatlichkeit/Etat de
droit, i.e. on the principle of a State founded on the rule of law. Yet it is quite evident that
the EU is not a State. Could it mean that the principle is only binding
on the Member States? In the English language, the notions of a community based on the rule of law (Court of Justice’s
phrasing) and of a Union founded on the principle of the rule of law (Article
6(1) TEU) do not appear dramatically different from a conceptual point of view.
As we shall see, this may be for the best as the principles of Rechtsgemeinschaft/communauté de droit and of Rechtsstaat/Etat
de droit give the wrong impression of an important dichotomy when in fact
they illustrate the same basic idea: the exercise of public power is subject to
the law. In other words, Article 6(1) means that the EU is a polity that
complies with this principle rather
than being itself a State founded on
the rule of law.
Two additional and significant
references made to the rule of law in 1997 need to be briefly mentioned. The first one (Article 7 TEU) concerns the current Member States
while the second (Article 49 TEU) is applicable to the countries wishing to
accede to the EU.
With the entry into force of the Amsterdam Treaty, current Member
States can theoretically be subject to EU sanctions under Article 7 TEU if they
are guilty of “a serious and persistent breach … of principles mentioned in
Article 6(1),” i.e. liberty, democracy, respect for human rights and
fundamental freedoms, and the rule of law. This provision was further amended by
the 2001 Nice Treaty to additionally authorize preventive sanctions in the situation where there is “a clear risk
of a serious breach by a Member
State Union . According to Article 49
TEU, any European State wishing to become a Member of the EU must
respect the principles on which the Union is
founded. This provision must be understood in the context of the controversial and
permanent debate about the ultimate borders of the EU. Faced with fresh
applications for admission after the fall of the Berlin Wall, the EU Member
States decided – as they often do – to opt for the easy way: to define
“objective” criteria rather than seeking an agreement on the geographical outer
limits of Europe. In Copenhagen in 1993, the
European Council unanimously approved the principle of the Union ’s enlargement. However, candidate countries were
asked to fulfill a set of criteria: the stability of institutions guaranteeing
democracy, the rule of law, human rights and respect for and protection of
minorities (political criterion); the existence of a functioning market economy
as well as the capacity to cope with competitive pressure and market forces
within the EU (economic criterion); and the ability to take on membership
obligations including adherence to the aims of political, economic and monetary
union (criterion concerning adoption of the Community acquis). A few
years later, as described above, the Amsterdam Treaty stressed the importance
of the political criteria and inserted a new provision currently known as
Article 49 TEU.
The Lisbon Treaty, if successfully ratified, will amend the wording of Articles 6, 7 and 49 TEU. In line with the defunct
Constitutional Treaty, the Lisbon Treaty refers to all the principles currently
mentioned at Article 6(1) TEU as values. It also offers a fairly inflated list of those values upon which the EU is said
to be founded:
The Union is founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities. These values
are common to the Member States in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity and equality between women
and men prevail.
Strangely enough, the rule of law is still identified as a principle
in the Preamble of the EU Charter of Fundamental Rights. Is there a rational explanation for this vocabulary change? While one may
theoretically distinguish between values and principles on the basis that “values have a more indeterminate
configuration, whereas legal principles
possess a more defined structure which, combined with their clear nature as
‘ought to be’ propositions, make them more suitable for the creation of legal
rules through judicial adjudication,” it is doubtful that those responsible for this terminological variation
intended to introduce these type of theoretical distinctions into the EU
Treaties. The replacement of the term “principle” by the term “value” is
nonetheless regrettable. A distinction between the EU’s fundamental moral values (human dignity,
freedom, etc.) on which the EU is founded, and the “structural” principles
(democracy and the rule of law) on the basis of which the EU must function,
would have been more appropriate. It may very well be that the EU’s Member
States did not view the use of the term “value” as a meaningful change but if
“principle” and “value” should be understood as synonymous, the need for a
terminological change does not appear pressing. If the term “value” indicates,
however, that Member States intended to make it more difficult to sanction any violation
of the “principles” mentioned at current Article 6(1) TEU, either by themselves
or by the EU, this would hardly be reconcilable with the long advertised goal
of increasing the EU’s legitimacy and the successive Treaty amendments which
have been adopted to strengthen the democratic and rule of law dimensions of
the EU. This is why this terminological variation will not be interpreted here
as implying any substantive change.
More decisive and more intriguing is the multiplication of Treaty
references to a principle/value that is nowhere defined in EU primary law but
rather presented as one which is common to the Member States. A comparative
overview of how the rule of law has emerged and been relied on in different
European legal traditions seems therefore in order before attempting to outline
and assess the emergent unique meaning and scope of the EU rule of law. This is
not to say that from a legal point of view, the EU rule of law must necessarily
be interpreted and applied in conformity with national understandings but that
these understandings will provide a useful benchmark when it is time to assess
the extent to which the principle of the rule of law has been “Europeanized.”
One also needs to explore the accuracy of the argument according to which the
rule of law cannot simply be described as a common principle to the EU Member
States. This lack of common understanding, the argument goes, makes it either
vain for the EU to rely on the rule of law or necessary for it to develop its
own and entirely autonomous understanding.
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