Trust under Pressure A Norwegian Perspective on Rule of Law Backsliding in the EU

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Trust under Pressure

A Norwegian Perspective on Rule of Law Backsliding in the EU

Candidate number: 213

Submission deadline: 12 February 2021 Number of words: 39 400

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1 Introduction

1.1 Topic and Background

The topic of this paper is rule of law backsliding in Europe. It will examine questions pertaining to the deterioration of the rule of law in certain Member States of the European Union (EU) from the perspective of Norway, a “well-integrated” non-Member of the Union.¹

The European common values – democracy, fundamental rights and the rule of law – are under threat. Considered common to all EU Member States and thus at the very core of the Eu- ropean identity, these vales have forged the “cornerstone of European integration”.² From the internal market to the Area of Freedom, Security and Justice (AFSJ), the rule of law enables the very functioning of a largely decentralised Union.³ In a “regulatory and judicial intercon- nected space”,⁴ a shared, overarching legal architecture rests on trust in the presumption that all national and EU institutions are law-abiding.

When availing themselves of the economic freedoms of the internal market or when being subjected to coercive measures arising from mutual recognition of judicial decisions within the AFSJ, economic operators and citizens are dependent on compliance with the rule of law in every Member State. Within these areas, enforcement of EU law is founded on the principles of mutual trust and mutual recognition of judicial decisions, meaning, in essence, that a court decision issued in a Member State must be enforceable in and enforced by other Mem- ber States. Accordingly, a threat to the rule of law in one EU Member State is not solely of national concern; on the contrary, it represents a challenge to the legal, political and economic basis of the EU cooperation as a whole.⁵

In recent years, significant deviations from the rule of law in certain Member States have led the EU into a “highly volatile and unpredictable” crisis,⁶ causing widespread concern across the Union and beyond.⁷ Unlike episodic infringements of the rule of law, these deviations are

1 Hillion (2011), p. 8 and 11-13 describing Norway as “the most integrated outsider” to the Union. See also Haukeland Fredriksen (2020), arguing that the ECJ, in C-897/19 I.N., confirms the impression of the EEA/EFTA States being Union “insiders” rather than “outsiders”, drawing not only on the comprehensive EEA Agreement which ties the EEA/EFTA States to the EU internal market, but on the number of agreements entered into covering different fields of law between the EEA/EFTA States, on the one hand, and the EU, on the other. This includes, as was the case in I.N., also the Parallel Agreement to the EAW mechanism.

2 von Bogdandy and Ioannidis (2014), p. 59.

3 Article 19(1) TEU.

4 Kochenov and Pech (2015), p. 512, 521.

5 As emphasised by the Commission in COM(2019) 343 final.

6 Finck and de Witte (2020) p. 1, Lenaerts (2020), pp. 29-34.

7 COM(2019) 343 final.

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of a systemic nature, ultimately aiming to blur the boundaries between law and politics and thus the separation of powers. Frequently referred to as rule of law backsliding, the phenomenon implies that a country once was better, and then has regressed.⁸

Norway is not an EU Member State. Nevertheless, through the European Economic Area (EEA) and a multitude of agreements, Norway and the EU have a special relationship that goes beyond economic and commercial cooperation.⁹ In 2012, the Norwegian EEA Review Committee compared the relationship between Norway and the EU to a “patchwork quilt”, gradually growing as new agreements have been being added, constituting a “multiplicity of diverse agreements and provisions that are not formally connected”.¹⁰ Arguably, Norway is equally involved and more legally, practically and economically integrated in the EU than some EU Member States.¹¹

Where does that leave Norway? This paper endeavors to ascertain how rule of law backsliding in EU Member States affects the Union and Norway. The comprehensive scope raises research questions across a wide variety of policy areas, at different levels of integration and in legal systems, ultimately aiming to elucidate the EU-Norway relationship in times of crisis.

The paper is structured in three main parts. The first main part of the paper will identify the issues by introducing the EU rule of law, conceptualising the notion of backsliding and intro- ducing the principles of mutual recognition and mutual trust as drivers for EU integration.

Whilst aiming to provide sufficient background for the subsequent discussion, the first main part will be located largely in the territory of EU law. In order to transform the discussion from the purely theoretical to the tangible, the notion of backsliding will be illustrated by the institutional reform of the Polish judiciary. The situation in Poland will serve as a common thread throughout the paper.

The second main part of this paper will discuss the adverse implications of rule of law backsliding, both internally and vis-à-vis Norway as a non-Member of the EU. Admittedly, an in- depth examination of all possible adverse implications related to rule of law backsliding is impossible within the scope of this paper. The fields of research conducted in this paper shall accordingly be focused on two particular areas of law originating from the AFSJ and the internal market.

8 Pech and Scheppele (2017), p. 8.

9 C-897/19 I.N., para 44 and 50, Haukeland Fredriksen (2020).

10 NOU 2012: 2 Utenfor og innenfor, p. 35.

11 Finstad (2018), p. 59.

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The main emphasis will be on the European Arrest Warrant (EAW) mechanism,¹² a system of simplified surrender based on mutual trust to which Norway is linked through a parallel agreement (Parallel Agreement or PA).¹³ The latter entered into force in November 2019 and constitutes a new and important part of the “patchwork quilt” still quite unexplored from a Norwegian perspective.¹⁴ The EAW mechanism provides fertile ground for studying the legal implications of rule of law backsliding, acting as a litmus test to rule of law enforcement within the Union.¹⁵ While pursuing the well-known European objective of limiting barriers to efficient cooperation across borders through the principle of mutual recognition based on mutual trust,¹⁶ the nature of the mechanism – the act of surrendering an individual for the purpose of criminal prosecution or execution of a custodial sentence or detention order – touches on highly delicate fundamental rights, paramount among them the right to a fair trial. In an environment of backsliding, the risk of a clash between the two is great.

Following an in-depth examination of the EAW mechanism, the paper then endeavors to broaden the perspective by examining possible adverse implications of rule of law backsliding for the field of EU competition law. The chapter is to be understood as a small discourse from the main emphasis, aiming not to be comprehensive, but to illustrate the width of the challenges pertaining to rule of law backsliding.

Thirdly and lastly, having identified the phenomenon of rule of law backsliding and discussed adverse implications for the EU legal order and Norway within the fields of research, the third and final part of this paper will elaborate on enforcement of the rule of law, both internally and from the perspective of Norway as a non-Member of the EU. Firstly, the existing measures in the EU legal toolbox and their ability to achieve enforcement of the rule of law in the face of systemic deficiencies will be discussed. Thereafter, some reflections will be prof- fered on the enforcement and efficiency prospects for the recently adopted 2020 Conditionali- ty Regulation, which links EU budgets to rule of law compliance. Lastly, returning to the Norwegian perspective, some consideration will be given to whether a conditionality mechanism can be included in the Norwegian equivalent to the EU funds: the EEA and Norway Grants.

12 For the purpose of this paper, the Council Framework Decision of 13 June 2002 in the European arrest warrant and the surrender procedures between Member States will be abbreviated to “EAW”.

13 For the purpose of this paper, the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway will be denoted as “the Parallel Agreement” or abbreviated to “SPA”.

14 See, however, Ruud, Egseth and Græstad (2020), Butenschøn Skre (2017) and Mathisen (2009), the two latter published before the Parallel Agreement entered into force.

15 van Ballegooij and Bárd (2019) p. 353.

16 Chapter 3.

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4 1.2 Purpose and Challenges

The main purpose of this paper is to address the highly topical subject of rule of law backslid- ing from a Norwegian perspective. Whilst the EU perspective has been the subject of intense academic debate, the Norwegian perspective is, to my knowledge, largely unexplored, hence my academic curiosity.

Each of the different chapters contributes in their own way to the main purpose of this paper, encapsulating distinct purposes and challenges of their own, allowing the discussion to move through different policy areas, levels of integration and measures of enforcement. The paper as a whole aims to illustrate that rule of law backsliding is a comprehensive challenge requir- ing comprehensive solutions, also from an “outsiders” perspective.

There are nevertheless significant challenges involved in a study of rule of law backsliding and its effects. The highly volatile situation is a difficult subject-matter, one that keeps EU institutions and judicial scholars occupied with the continuous adverse developments. As compliance with the rule of law was simply taken for granted by the EU founders,¹⁷ rule of law backsliding in Poland and Hungary has forced the EU to tread new paths in order to ensure compliance, some of which were finalised about the same time as this paper. The rapid developments give rise to a need to follow events closely and rely on up-to-date literature in order to provide a timely analysis. The richness of the legal debate present challenges as pri- orities must be chosen, yet the absence of a Norwegian perspective makes it difficult to build on previous research of the same approach.

A situation in motion makes for a difficult terrain of study. In the course of 2020 alone, the situation in Poland worsened significantly, from the adoption of the “Muzzle law” in February to the dramatic Polish-Hungarian veto of the EU budget in December.¹⁸ From a Norwegian perspective, 2020 was also the year when Norway granted asylum to a Polish activist alleged- ly fleeing political persecution,¹⁹ and awareness of rule of law backsliding left the desks of the few and entered the attention of the many.²⁰ Hence, an analysis which seeks to address implications for Norway is both timely and highly relevant.

17 Scheppele, Kochenoc, Grabowska-Moroz (2021), pp. 1-121.

18 The importance of these events will be addressed in Chapter 2, section 2.3 and Chapter 6, section 6.3.

19 The unprecedented decision was widely covered in foreign media. Se,e inter alia, The Guardian (2020).

20 Aftenposten (2020), Morgenbladet (2021).

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5 1.3 Methodology and Material

The subject-matter of this paper is situated at the crossroads of EU/EEA and national law. For the purposes of this paper, legal elements will be drawn from both levels.

Although touching on highly political issues, the issues explored in this paper shall remain purely legal. In order to study the relevant legal material, a legal-dogmatic approach has been taken. The questions raised herein are of a partly descriptive, partly analytical nature and will be addressed de lege lata. However, given the ambition herein of going beyond merely establishing what the law is and the challenges thereto, certain matters will be addressed de lege ferenda.

As the main emphasis of the paper lies within the field of EU law, some introductory comments to the EU legal methodology are pertinent. Comments on methodological points relat- ing to EEA law or national law will be offered as necessary. The hierarchy of norms in EU law is based on a differentiation between primary and secondary law. Primary law consist of the Treaties – the Treaty of the European Union (TEU) and the Treaty of the Functioning of the European Union (TFEU) – as well as the Charter of Fundamental Rights of the European Union (CFR) and general principles of EU law established by the European Court of Justice (ECJ).²¹ Secondary law is derived from the principles and objectives embedded in primary law. The legal analysis is largely based on judgements issued by the ECJ read in conjunction with the Opinions of the Advocate Generals (AG).²² Lastly, some reliance shall be placed on academic literature to support the legal analysis and arguments.

1.4 Outline

Chapter 2 sets out to conceptualise the EU rule of law. Whilst positions of legal philosophy and lengthy discussions about the concept of the rule of law are beyond the remit of this paper, it will be argued that the EU rule of law encompasses both formal and substantive components. Delving into the core component, judicial independence, it will be argued that there is an intrinsic relationship between the rule of law and judicial independence, and that the ECJ has gone to great lengths to operationalise judicial independence in recent years. Chapter 3 focuses on the principles of mutual recognition and mutual trust as drivers for EU integration.

The principle of mutual recognition will be studied from both an internal market and AFSJ perspective. Originally considered interdependent, the current environment of backsliding places them on opposite sides of an equation, balancing judicial independence and the rule of law, on the one hand, and the object of efficiency, on the other.

21 Article 6 TEU.

22 For the purpose of this paper, Advocate General will be abbreviated to “AG”. The AG advises the Court in accordance with Article 252 TFEU.

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Chapter 4 introduces, analyses and discusses the EAW mechanism in the light of rule of law backsliding. Following an elaboration of the similarities and differences between the EAW mechanism and the Parallel Agreement, the chapter will study the development in the case law of the ECJ. As will be observed, the gradual shift in the case law of the ECJ from a presumption of trust to opening the door to rebuttal culminated in the introduction of the so- called LM test. The chapter will then discuss the workability of the test, before bringing the discussion back to the Norwegian courtroom and case law of the Norwegian Supreme Court.

It will be argued that rule of law backsliding has revealed the vulnerability inherent in the trust-based mechanism. While the ECJ has stepped in to limit the adverse implications for cooperation, their two-step LM test is a tool of limited effect. Chapter 5 offers some reflec- tions on possible adverse implications of the rule of law backsliding for the field of EU competition law.

Chapter 6 elaborates on measures for enforcing the rule of law at national level. It will be argued that none of the current measures in the EU legal toolbox are sufficient in the face of with systemic deficiencies. The chapter ends on a highly topical note with a discussion of the linking of funding to rule of law compliance. Chapter 7 summarises the findings and suggests avenues for further research.

2 A Union dependent on the Rule of Law

2.1 Introduction

First introduced in ancient Greek philosophy, shaped by scholars over centuries and acknowl- edged as the ideological heritage of the Enlightenment, the rule of law constitutes the cornerstone of the liberal democracy.²³ The legal and political concept of the rule of law has re- ceived widespread support, embraced, if only for rhetorical purposes, by national governments and international organizations all over the world.²⁴

The rule of law is epitomised by the EU legal system, building on and aspiring to improve the rule of law as commonly understood in the EU Member States rather than establishing a new legal concept.²⁵ In a Union of diversity, where it is neither possible nor desirable to replace all

23 Konstadinides (2017), p. 47-54, tracing the development of the rule of law as a restraint on arbitrary power back to Aristotle’s famous maxim “rule of law, not the rule of men”.

24 Pech (2009), p. 3, Konstadinides (2017), p.1-11.

25 Most EU Member States has included a reference to the rule of law in their national constitutions, see Ven- ice Commission, Report on the rule of law (2011), para 32. This includes the Polish Constitution, stating in Article 2 that the Republic of Poland “shall be a democratic state ruled by law (…)” (emphasis added).

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national legal acts with European legal acts, common adherence to the rule of law enables the reciprocal nature of the EU legal order.²⁶ Thus, the rule of law is a sine qua non – an essential condition – of EUs legitimacy, a prerequisite for the Union itself.

Still, the rule of law is an elusive legal concept,²⁷ encompassing broad and often abstract commitments. Therefore, the aim of this Chapter is to conceptualise the EU rule of law. We will study its legal basis and delve into its substantive qualities, focusing in particular on the principle of judicial independence. The intrinsic relationship between the rule of law and the principle of judicial independence has formed the base of a recent jurisprudential development in case law from the ECJ, aiming to operationalise the principle of judicial independence to ensure compliance with the rule of law. Prior to studying the legal development, however, the chapter will provide substance to the notion of “backsliding” in the light of the targeted attacks on the Polish judiciary.

2.2 Conceptualising the EU Rule of Law

2.2.1 Defining the EU Rule of Law

The EU legal order is founded on a set of common values stipulated in Article 2 TEU, inter alia, the value of democracy and the rule of law. These values are integral in forming the EU legal structure, which is “based in the fundamental premise that each Member State shared with all the other Member States, and recognize that the share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU”.²⁸

The EU rule law is derived from the constitutional traditions of the EU Member States.²⁹ Some of these constitutional traditions, like the British Rule of law, German Rechtsstaat and French État de droit have been particularity influential to constitutional developments in other EU Member States.³⁰ Although the terms are not fully synonyms, as “the precise content of

However, like in most EU countries, national law does not provide a definition of the rule of law. For a further discussion, see Pech (2017) p. 99.

26 Ballin (2015), p. 133, Fichera (2011), p. 207, the latter referring to mutual trust as “the reciprocal belief that other’s behaviour will not violate the basic common principles that lay at the heart of the EU legal systems”.

However, the notion must not be confused with the principle of reciprocity under international law. A Mem- ber State cannot, conversely to the principle under international law, unilaterally decide to relieve itself from its obligations under Union law simply because another Member State has breached its obligation, as explicitly stated by the ECJ in C-5/94, Hedley Lomas, para. 20.

27 Bogandy and Ioannidis (2014), p. 62.

28 Opinion 2/13, para. 168.

29 Lenaerts (2015), p. 243.

30 Venice Commission, Report on the rule of law (2011), para. 7-34.

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the principles and standards stemming from the rule of law may vary”,³¹ they share a set of core principles.³²

While there is no clear definition of the rule of law, neither in the Treaties nor in the case law of the ECJ, the notion of an ‘EU rule of law’ was first introduced in the case law of the latter.

In the seminal judgement of Les Verts, the Court famously referred to the European Commu- nity as a “[c]ommunity based on the rule of law”,³³ emphasising the constitutional character of the rule of law within the Union. The understanding of the EU rule of law has progressed significantly since then, arguably having developed from a predominantly formal understanding of the rule of law to an understanding that encompasses substantive qualities.³⁴

The latter distinction plays into a voluminous academic debate on whether the rule of law should be understood as a ‘thin’ (formal) or ‘thick’ (substantive) concept.³⁵ As a formal con- ception, the validity of the rule of law rests on compliance with certain formal rules, not to be confused with democracy or human rights.³⁶ Conversely, advocates for the substantive approach argue based on the content of the principle.³⁷ A ‘thick’ understanding of the EU rule of law encapsulates moral rights,³⁸ as it “tend to mirror the connections and interdependence between the rule of law, democracy and human rights”.³⁹ Whilst the particularities of the legal philosophical debate lie beyond the scope of this paper, the distinction is drawn due to the piece of the argument submitted. Rather than placing the EU rule of law on one side of the dichotomy, this paper finds the EU rule of law in an intermediate position, neither limited by formality nor solely embraced by substantive virtues. The EU rule of law include both formal and substantive components.⁴⁰

The perception of the EU rule of law as a multifaceted concept is reflected in the case law of the ECJ, either by emphasising both the procedural requirements and the substantive value

31 COM (2014) 0158 final, p. 4.

32 Konstadinides (2017) pp. 1, 15-16, 28-29.

33 C-294/83 Les Verts, para. 23.

34 Kellerbauer, Klamert and Tomkin (2019) p. 28, Pech (2009), p. 3, 71-72.

35 Konstadinides (2017), pp. 55-56, arguing that the ‘thin-thick’ dichotomy can educate EU legal scholars as to

“how the formal and substantive intertwined conceptions play out in the EU rule of law”, answering scholars who have questioned the expediency of the division. For an example of the latter, see Pech (2009), pp. 28-29 and 52.

36 Raz (1979), pp. 211-214.

37 While not concerned with EU law in particular, Dworkin (1985) advocated for a substantive understanding of the rule of law.

38 Dworkin (1985), pp. 11-12.

39 Wouters and Burnay (2013), p. 2.

40 COM (2014) 158 final, p. 4, Konstadinides (2017) pp. 58-59.

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embedded in the rule of law,⁴¹ or by explicitly interpreting the rule of law through a lens of fundamental rights.⁴² Affirmative to the understanding of the EU rule of law as an intermediate position, the Commission has found it to be a “constitutional principle with both formal and substantive components”,⁴³ and provided a list of its core elements. Among these core elements is the principle of judicial independence, which will be subject to further review below.

Building on the abovementioned, this paper defines the EU rule of law as “the rules that bind the authorities both procedurally and substantively, the latter above all through fundamental rights”.⁴⁴ This definition refers to a system of law as oppose to a system of arbitrary rule, while encapsulating the intrinsic relationship between the rule of law and fundamental rights.⁴⁵ The latter is fully dependent on the former, only effective when it is justiciable.⁴⁶ 2.2.2 The Legal Basis of the EU Rule of Law

The rule of law has been imprinted in the Union from the very early stages of the integration process, although “not always textually obvious”.⁴⁷ Building on a set of shared, then unwrit- ten, values, the European Economic Community (EEC) solely welcomed democratic states devoted to protecting the rule of law and human rights.⁴⁸ Interestingly, it was not until the 1997 Treaty of Amsterdam that EU primary law explicitly stated that the Union was “founded on the principle of (…) the rule of law”.⁴⁹ The legal basis grew stronger with the Treaties of Nice and Lisbon, coinciding with the introduction of judicial cooperation within the field of justice and home affairs and the evolvement of a Union offering its citizens a borderless area of freedom, security and justice.⁵⁰

41 C-50/00 P UPA, paras. 38-39.

42 Joined Cases C-402/05 P and C-415/05 P Kadi, para. 316.

43 COM(2014) 158 final

44 Kellerbauer, Klamert and Tomkin (2019) p. 28 and Pech (2009), p. 52, stressing the interdependency between democracy, fundamental rights and the rule of law as construed in light of each other.

45 C-362/14 Schrems, para. 60, Konstandinides (2017), p. 15.

46 As argued by the Commission, “[t]here can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa”, see COM (2014) 158 final, p. 4.

47 Konstadinides (2017), p. 46.

48 Kellerbauer, Klambert and Tomkin (2019), p. 22 with further references.

49 Initially, Article F(1) Treaty of Maastricht stated that democracy was the basis of the Union. With the Treaty of Amsterdam, the provision was renumbered to Article 6(1) TEU and extended with a reference to both human rights and the rule of law.

50 Article 3(2) TEU.

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An important step to articulate the core principles of the Union predated the Treaty of Am- sterdam. With the 1993 Copenhagen Criteria for accession,⁵¹ the European Council identified a political, an economical and an administrative criteria as essential conditions all candidate States had to satisfy prior to becoming EU Member States. In addition to the economical criterion of a functioning market economy and the administrative criterion of administrative and intuitional ability to undertake the obligations of an EU membership, the political criterion required stable institutions “guaranteeing democracy, the rule of law, human rights and re- spect for and protection of minorities” (emphasis added).

The criteria, and in particular the rule of law, have continuously been expressed as part of the EU enlargement policy to satisfy the substantive requirements under Article 49 TEU. The latter “epitomises, and partly ‘constitutionalises’ the Copenhagen criteria”.⁵²

As of today, the EU rule of law is stipulated in Article 2 TEU, textually enshrined among the values who constitute the “untouchable core” of the EU legal order.⁵³ The provision found its current wording in the 2009 Treaty of Lisbon. Pursuant to Article 2 TEU,

“[t]he 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” (emphasis added).

For the purpose of the subsequent discussion, three elements to the rule of law are of interest.

Firstly, previously referred to as a principle,⁵⁴ the Treaty of Lisbon rebranded the rule of law as a value. The rebranding was interpreted both as a degradation and as an upgrade among legal scholars. While one could argue that there is a difference between values (desirable ide- als) and principles (binding rules), Article 2 TEU is clearly not deprived its legal value.⁵⁵ In- deed, as the values enshrined in Article 2 TEU produces legal consequences, are overreaching and constitutive, they are to be understood as founding principles. Various Treaty amendments have reinforced the constitutional significance of the values enshrined in Article 2 TEU

51 Criteria agreed upon by the 1993 Copenhagen European Council.

52 Hillion (2004), p. 3, Konstadinides (2017), p. 78.

53 Kellerbauer, Klambert and Tomkin (2019), p. 23.

54 Article 6(1) TEU (As amended by the Treaty of Amsterdam).

55 Further, von Bogdandy (2010) p. 22 and Pech (2010) p. 367, both drawing similar conclusions. On the contrary, Ballin finds “values” to be “more than a rule and even a principle”, see Ballin (2016), pp. 133-135. For an analysis of the terminological and theoretical confusions of the wording in Article 2 TEU, see Kochenov (2017) pp. 9-10.

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and thus the rule of law,⁵⁶ stressing their status as legal commitments with a binding character. Furthermore, the values find resonance both in relation to internal⁵⁷ and external⁵⁸ EU policies. To uphold the Union as envisaged, these commitments cannot be diluted. As continuously stated by the ECJ, the rule of law is a prerequisite to ensure enforcement of all other founding values.⁵⁹

Secondly, the values enshrined in Article 2 TEU applies to all areas of EU law and is applicable to both EU Member States and their citizens. By emphasizing that the Union is founded on these values – in contrast to merely respecting them – it becomes clear that the values perme- ates the EU legal system as a whole. Indeed, unlike the Union acquis sensu stricto, compliance with Article 2 TEU has simply been presumed.⁶⁰ Thirdly and finally, the values are common to the Member States. A common set of values facilitate mutual legal obligations between the Member States and justify the existence of mutual trust.⁶¹

2.2.3 Substantive elements to the EU Rule of Law

The 2014 Rule of law Framework included a non-exhaustive list of the core elements to the EU rule of law,⁶² aiming to conceptualise the rule of law despite the different constitutional traditions of the EU Member States. Affirmative to the argument of an intermediate concept above, the listed principles are neither purely formal nor procedural, but rather a “vehicle for ensuring compliance with and respect for democracy and human rights”.⁶³ Derived both from the case law of the ECJ and from the European Court of Human Rights (ECtHR), the core elements listed by the Commission are largely similar to a list of elements to the rule of law previously issued by the Venice Commission of the Council of Europe.⁶⁴ According to the Commission, the core elements of the EU rule of law are:

i. the principle of legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws;

ii. legal certainty;

56 Kellerbauer, Klambert and Tomkin (2019), p. 23.

57 See Article 3(1) TEU and Article 4(3), reiterated in, respectively, Article 13(1) TEU and 13(2) TEU. Most importantly, however, Article 7 TEU operationalises the values enshrined in Article 2 TEU by introducing a mechanism of enforcing rule of law compliance. For a further discussion on Article 7 TEU, see Chapter 6.

58 Article 21(1) TEU and Article 49 TEU.

59 See, inter alia, C-455/14 P EUPM in Bosnia and Herzegovina, para 41, C-362/14, Schrems, para. 95 and C- 441/17 R Commission v Poland, para. 102.

60 Kochenov (2017), p. 11.

61 Lenaerts (2017), pp. 805-840.

62 COM(2014) 158 final. The Rule of Law Framework will be revisited in Chapter 6.

63 Ibid, p. 4.

64 Venice Commission, Report on the Rule of Law (2011).

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iii. prohibiting the arbitrary exercise of executive power;

iv. independent and impartial courts;

v. effective judicial review, including respect for fundamental rights, and;

vi. equality before the law.

While arguably an “all-encompassing understanding of the rule of law”,⁶⁵ the list incorporates the consensus as to the elements characterising Member States governed by the rule of law.⁶⁶ At its core, the EU rule of law endeavors to reduce arbitrariness and provide its subjects with the ability to regulate conduct.

As newly stated by the EU Commission President von der Leyen, the rule of law is the “guar- antor of our most basic of every day rights and freedoms”, “protect[ing] the people from the rule of the powerful”.⁶⁷ Pursuant to the list, the EU rule of law offers all members of society a system where they are equally subservient to the law and can seek justice in front of an independent, impartial and efficient judiciary.

Building on the findings above, we will delve into a particular element of the EU rule of law:

the principle of judicial independence, which has been regarded the very core of the EU rule of law ever since the Les Verts judgement, continuously accentuated as the main element to the rule of law.⁶⁸ As a preliminary point, the legal concepts of the rule of law and the principle of judicial independence are interdependent. Whilst the independent judiciary is of cardinal importance when guaranteeing the rights derived from EU law – and, in particular, the values enshrined in Article 2 TEU – the rule of law enhances independent judiciaries as one of its core values. Accordingly, the rule of law foresees independent judiciaries, while, simultaneously, an independent judiciary presupposes the rule of law.

This is of importance to both safeguarding fundamental rights and judicial cooperation between European judiciaries. Indeed, with reference to the latter, both horisontal communica- tion between the judiciaries of the Member States based on mutual recognition and the com- munication between national judiciaries and the ECJ through the preliminary reference procedure presupposes independent judiciaries.⁶⁹ The EAW mechanism, as will be thoroughly ex- amined in Chapter 4, merges the twofold role of judicial independence.

65 Konstandinides (2017), p. 21.

66 Kochenoc and Pech (2015) p. 522. Arguably, the list could have included the principle of accessibility of the law, principle of protection of legitimate expectations and principle of proportionality.

67 State of the Union Address 2020 by EU Commission President Ursula von der Leyen.

68 C-294/83, Les Verts, para 21.

69 Article 267 TFEU, C- 64/16 ASJP, para. 43 and C-216/18 PPU, LM para. 54.

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13 2.2.4 Judicial Independence

The enforcement of EU law is largely decentralised, resting on a system of “dual vigilance” in order to ensure effective legal protection.⁷⁰ National courts are the “gatekeepers of the rule of law within the EU”,⁷¹ ensuring “the full application of European Union law” and “judicial protection of an individual’s rights under that law”.⁷² There are neither district courts nor ap- peal courts within the EU legal system. Thus, national courts are EU courts.⁷³

Effective judicial protection is a general principle of EU law, stemming from the constitutional traditions common to the Member States.⁷⁴ It is part of EU primary law, embedded in Arti- cle 6(1) TEU, Article 19(1) TEU and Article 47 CFR. Furthermore, the right is enshrined in Articles 6 and 13 of the European Convention of Human Rights (ECHR), to which all Mem- ber States are parties. The importance of the principle has been emphasized by the ECJ nu- merous times. Indeed, as stated by the Court in Rosneft, “the very existence of effective judi- cial review designed to ensure compliance with provisions of EU law is of the essence of the rule of law”.⁷⁵

The concrete expression of effective judicial protection is enshrined in the second subparagraph of Article 19(1) TEU, which requires that all Member States “provide[s] remedies sufficient to ensure effective legal protection in the fields covered by EU law”.⁷⁶ While Article 19(1) embraces a wider scope of substantive qualities than the principles of judicial independence, our focus will solely lie with the latter. The principle of judicial independence requires, in essence, that judges can discharge their judicial duties under the law without undue inter- ference.

Judicial independence as a precondition of the fundamental right to a fair trial is stipulated in Article 47 CFR, stating, “[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in the Article”. These conditions are, inter alia, “a fair and public

70 Lenaerts (2020) p. 29.

71 Ibid, p. 31.

72 Opinion 1/09, para. 68. For a further discussion, see Kellerbauer, Klambert and Tomkin (2019), pp. 175-176.

73 Lenaerts (2020) p. 30. For a further discussion, see NOU 2012:2 Utenfor og innenfor, p. 206.

74 C-64/16 ASJP, para. 35.

75 C-72/15 Rosneft, para 73.

76 The second subparagraph of Article 19(1) TEU codifies C-50/00 P UPA, para. 41, where the Court stated that it was for the Member States to “establish a system of legal remedies and procedures which ensure the right to effective judicial protection”. The provision offers judicial protection against both EU institutions and EU Member States. For a further discussion, see Kellerbauer, Klambert and Tomkin (2019), p. 182.

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hearing within reasonable time” in front of “an independent and impartial tribunal previously established by law”. Article 47 CFR largely mirror Article 6 ECHR. Conversely to Article 19(1) TEU, the Charter is applicable “only when they are implementing Union law”.⁷⁷ Despite not being an explicit part of the Copenhagen criteria,⁷⁸ judicial independence was seemingly vital for the accession process to the EU.⁷⁹ Accordingly, lack of independence has traditionally not constituted major problems to the Union. Arguably, it was assumed, albeit wrongfully, that no national governments could – or would – challenge an “uncontested and incontestable”tenet of its own democracy.⁸⁰ Thus, it was taken for granted that national governments would trust the courts as arbiters even if they opposed the will of the Government.

Long considered an axiomatic principle in EU law, necessitating neither mentioning nor monitoring, the principle of judicial independence has gained increased attention in the case law of the ECJ over the last years.⁸¹ Prior to elaborating on the mentioned case law, however, we will study the backsliding of the principles having been presented thus far.

2.3 Rule of Law Backsliding

2.3.1 An Introduction to the notion of ‘Backsliding’

“Rule of law backsliding” has no official definition.⁸² However, the phenomenon of “backsliding” implies that that something or someone, in this case an EU Member State, has regressed from a better position.⁸³ Poland and Hungary represent the most prominent EU exam- ples of a broader international trend, referred to by legal scholars as, inter alia, “democratic backsliding”⁸⁴ or “authoritarian reversion”.⁸⁵ When this paper refers to “rule of law backsliding” is it not to distinguish itself from these descriptions, but to emphasize the importance of the law and the pivotal role of the judiciary.

77 Article 51(1) CFR.

78 Arguably, the focus was on the stability and efficiency of judicial institutions rather than their independence.

For a critical approach, see Smilov (2006), pp. 313-334.

79 Zinonos (2019), p. 616.

80 von Danwitz (2018), p. 21, Lenaerts (2020) p. 31.

81 Zinonos (2019), p. 616.

82 The phenomenon of backsliding is not new to the EU. Indeed, the notion of a “rule of law crisis” was intro- duced by the then Vice President of the Commission already in 2013, see Reading, Speech/13/677 (2013).

83 Pech and Scheppele (2017) p. 12.

84 Kelemen (2020), pp. 481-499.

85 Huq and Ginsburg (2018).

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Pech and Scheppele has defined “rule of law backsliding” as the process where elected authorities “deliberately implement governmental blueprints which aim to systematically weak- en, annihilate or capture internal checks and balances on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party”.⁸⁶ The comprehensive description includes checks and balances beyond the judiciaries.⁸⁷ However, the judiciary offer protection to key democratic allies and is thus the most important institu- tion in a broader system of checks and balances. That is why the judiciary is no accidental victim of an illiberal government.

A detailed elaboration of Member States experiencing backsliding lies beyond the scope of this paper. However, as the rapid changes to the Polish judiciary currently forms to the epi- center of rule of law backsliding within the EU, occurrences originating from Poland will serve as a red thread throughout this paper. A brief summary of the targeted attacks on the Polish judiciary will therefore be provided.⁸⁸

Once internationally recognised for its transition from a communist dictatorship to a liberal democracy and considered one of the most developed democracies in the region,⁸⁹ the continuous attacks on the independence of Polish judges make for an interesting case study. The subsequent paragraphs aims to provide a brief introduction to these targeted attacks.

2.3.2 The Tale of the Polish Judiciary

The Polish judiciary has undergone swift changes over the last five years, starting with two pivotal elections in 2015. Following the marginal and unexpected presidential election victory of the young newcomer Andrzej Duda from the Law and Justice party (PiS), his party won an absolute majority of five seats in parliament (the Sejm) and thus the authority to govern sin- gle-handedly.⁹⁰ Under PiS party-rule, the Polish judiciary has been under continuous siege, starting with deliberated attacks on the Constitutional Tribunal (CT) shortly after the electoral victory and culmination with the adoption of a ‘Muzzle law’ in February 2020.

86 Pech and Scheppele (2017), pp. 9-10.

87 As the notion of ‘checks and balances’ embraces more than the traditional three branches of government, some scholars argue that the term denotes the current situation better than the more narrow alternatives, see von Bogdandy (2020), p. 706. The term includes, inter alia, other key democratic institutions such as opposition parties, the media, academia and civil society organisations.

88 This paper does not argue that the rule of law backsliding in Poland exceeds similar developments in other EU Member States, and in particular, Hungary. However, Poland is the first EU Member State to be subject to both an Article 7(1) TEU procedure and the special PACE monitoring procedure. For a comprehensive study of the judicial reforms of the Polish judiciary, see Træet (2019).

89 For a further discussion, see Bugarič and Ginsburg (2016)

90 Sadurski (2019), pp. 1-34.

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Prior to the emasculation of the judiciary, the Polish CT had proven to be an important actor defending human rights, monitoring the integration of EU law and protecting democratic institutions against the other branches of government.⁹¹ Admittedly, from a strong liberal democratic perspective, certain judgements were controversial, particularly when dealing with religion.⁹² In relation to integration of EU law, the CT eagerly helped aligning the Polish legal system with the one of the Union.⁹³ Furthermore, and of particular interest to this paper, the CT recommended a constitutional amendment that allowed Poland to join the European Ar- rest Warrant Mechanism.⁹⁴

Similarly, the CT had ruled some of PiS-party’s legislative proposals unconstitutional,⁹⁵ creat- ing a general frustration with the judiciary within the party. Moreover, the very idea of a judiciary with power to invalidate laws adopted in Parliament – uncontrollable to both the legislative and executive branch of government – was repellent to the PiS-party, as to most illiberal authorities.⁹⁶ Hence, the targeted attacks on the judiciary begun shortly after securing the Par- liament majority. The attacks were twofold, targeting both the CT (“First phase”) and the judiciary as a whole, including the constitutional body responsible for protecting the independence of the judiciary (“Second phase”).

The first phase of the attacks on the judiciary begun in 2015, when the newly elected parliament cancelled the appointments of five CT judges made by the previous parliament and appointed five new CT judges of their liking.⁹⁷ Admittedly, the previous parliament had over- stepped its constitutional room for manoeuvre by appointing five judges when only three positions would become vacant within their term, forcing the CT to review the lawfulness of the appointments.⁹⁸ Unsurprisingly, the CT concluded that only three out of five judges had been lawfully appointed, based on the simple principle that appointment of new judges to the Con- stitutional Tribunal is reserved for the sitting Sejm.

91 Ibid, pp. 58-60.

92 Arguably, in cases of, inter alia, teaching religion in public schools (Ref. No. K 11/90) and ‘Christian val- ues’ in broadcasting (Ref. No. K 17/93), discussed in Sadurski (2014), pp. 188-193, 239-240.

93 Sadurski (2019) p. 60, elaborating on judgements finding unconstitutionality in Poland’s ratification of the Accession Treaty (Ref. No. K 18/04) and the Treaty of Lisbon (Ref. No. K 32/09).

94 Ref. No. P 1/05.

95 Sadurski (2019) p. 61.

96 Ibid.

97 Shortly after inauguration, the new Parliament passed an amendment to the Act on the Constitutional Tribu- nal, of which a new Article 137a gave them legal basis to redo the appointment of judges. The amendment was found unconstitutional in Ref. No. 35/15.

98 Ref. No. K 34/15.

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However, late at night before the issuing of the CT judgement,⁹⁹ president Duda swore in the five newly appointed judges, filling all fifteen seats in the CT.¹⁰⁰ In the subsequent legal- political thriller, President Duda refused to swear in the three judges who were lawfully appointed, arguing that their seats had already been filled. Simultaneously, CT president Rzeplińsk refused to assign cases to the three un-lawfully appointed “quasi-judges”. This marked the beginning of a permanent conflict between the Government and the CT, expressed through, inter alia, a bombardment of legislative enactments regarding the CT¹⁰¹ aimed at paralyzing the judicial activity by keeping them occupied with cases concerning themselves¹⁰² and refusing to publish key decisions of the tribunal.¹⁰³

The second phase of the attacks on the judiciary begun in 2017, consecrated by the retirement of CT President Rzeplińsk. The new president, Julia Przyłębska, ended the conflict between the Constitution and the Government. As one of her first decisions, she allowed the three un- lawfully appointed “quasi-judges” to participate in adjudication, which, in combination with the retirement of other judges, ensured majority of judges appointed by the PiS party Gov- ernment in the CT.¹⁰⁴ Having completed the capture of the CT, the government turned to organisation of the judiciary as a whole. With three legislative acts, regarding the National Council for the Judiciary (NCJ),¹⁰⁵ the organization of the Common Courts and the organization of the Supreme Court, PiS party representatives aimed to reform the entire judiciary. All bills easily passed the Sejm. However, due to extensive international pressure, president Duda vetoed the laws regarding the NCJ and the Supreme Court, causing a swift moment of hope for the opposition and international organizations. When presented with his counter-proposal, it was evident that hope was in vain.

Although admittedly different from the original proposal, both acts “enabled the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element to the rule of law”.¹⁰⁶ The laws have now been enacted and amend the laws on the Supreme Court¹⁰⁷

99 Śledzińska-Simon (2015), referring to the newly appointed judges as “midnight judges”.

100 Pursuant to Article 194(1) of the Polish Constitution, the Constitutional Tribunal shall consist of 15 judges.

101 The adopted laws can be divided into three categories; provisions exempting recent PiS legislation from constitutional scrutiny, provisions paralysing decision-making by the Constitutional Tribunal and provisions enhancing the powers of the executive and legislature towards the Constitutional Tribunal. Further, Sadurski (2019) p. 70-75.

102 Matczak (2020), p. 423.

103 Gajda-Roszczynialska and Markiewicz (2020), p. 457.

104 Sadurski (2019) p. 61.

105 Article 186(1) of the Polish Constitution state that the NCJ is responsible to safeguard the independence of courts and judges.

106 Venice Commission, CDL-AD(2017)031, para. 129.

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and the National Council of the Judiciary.¹⁰⁸ While the scope of the paper prevents a detailed study of the legislative acts in themselves, a few elements are of particular importance to the subsequent discussion. Firstly, the law on the Supreme Court lowered the mandatory retirement age¹⁰⁹ for judges and changed the structure of the court by introducing two new chambers: the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Af- fairs.¹¹⁰ The former was entrusted with the power to decide on disciplinary cases against other judges of the Supreme Court,¹¹¹ and the latter was given the power to review highly political cases such as the validity of elections, and, as will be discussed in Chapter 5, jurisdiction in areas of particular importance to the EU internal market. In addition, the Chamber of Extraor- dinary Review and Public Affairs was given power to review final judgements, including judgements issued by other chambers of the Supreme Court.¹¹² Secondly, in relation to the law on the NCJ, the structural reforms of the NCJ deprived, in essence, judges from their ability to influence subsequent recruitment to the judiciary. Not only in its design, but evident from its actions,¹¹³ the NCJ was transformed from into an enabler of the Government, eventually also suspended from the European Network of Councils of the Judiciary for no longer being a guardian of the independence of the judiciary. All judges to the new chambers of the Supreme Court were appointed by the newly established NCJ.¹¹⁴

In December 2017, shortly prior to the entry into force of the new legislation, the Commission activated the Article 7(1) TEU procedure against Poland.¹¹⁵

2.3.2.1 The 2020 ‘Muzzle Law’

Fast forward to current events, the structural reforms the Polish judiciary has thus far culminated with the entering into force of a new piece of legislation, un-formally known as the

‘Muzzle Law’.¹¹⁶ Against strong condemnation of ‘1000 Robes’ gathered in the streets of Warsaw to protest the Parliament majority’s plans of a new disciplinary regime,¹¹⁷ the ‘Muz- zle Law’ has further weakened the independence of Polish judges.

107 Act of 8 December 2017 on the Supreme Court

108 Act of 8 December 2017 amending the Act on the National Council of the Judiciary and some other acts

109 Act of 8 December 2017 on the Supreme Court Article 37(1).

110 Ibid, Article 3.

113 Sadurski (2019), p. 106.

114 Bernatt (2019b), p. 8.

115 COM (2017) 835 final.

116 Officially, the ‘Muzzle Law’ is called the Act of 20 December 2019 amending the Act on the organisation of the common courts, the Act on the Supreme Court and certain other acts.

117 The ‘1000 Robes March’ gathered lawyers and judges from the entire continent, including Norway.

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The 'Muzzle Law' broadens the notion of disciplinary offences and thus the number of cases where the content of a judicial decision in itself can qualify for a disciplinary offence, ultimately allowing the legislation to be used as a system of political control with the judiciary.

Under the new amendments, questioning the legality of judicial bodies or the validity of judicial appointments can be met with disciplinary sanctions.¹¹⁸ Similar sanctions can be put upon judges engaging in activity that will hinder the functioning of the judicial system.¹¹⁹ Judges are required to disclose personal information on non-professional character, such as political activities and current memberships in associations.¹²⁰ Adding to the complexity, any challenges of judicial decisions is referred to the newly established Chamber of Extraordinary Control and Public Affair of the Supreme Court,¹²¹ a Chamber, as will be elaborated on shortly, was found to be un-lawfully established by another chamber of the Supreme Court. While entrusting the chamber with sole competence to adjudicate on cases regarding judicial independence, Polish courts are prevented from, inter alia, requesting the ECJ for preliminary rulings on the matter.

The ‘Muzzle Law’ met immediate resistance throughout a unified choir of legal scholars,¹²² arguing that the new law would be the last nail in the coffin to an independent Polish judiciary. In an Urgent Opinion,¹²³ the Venice Commission stated that the law would “diminish judicial independence” by putting Polish judges in an impossible situation of facing judiciary proceedings while acting in compliance with EU law.

Two months later, the Commission launched an infringement procedure regarding the ‘Muz- zle Law’ by sending a letter of formal notice to Poland.¹²⁴ The Commission found the amendments to be contrary to the requirements of judicial independence under Article 19(1) TEU and the principle of primacy of EU law and to be incompatible with the right to respect for private life provided in the Charter. In its response, the Polish Government contested the view of the Commission and required the discontinuing of the infringement procedure.

118 Article 107 of the Act on the common courts, as amended by the Muzzle Law.

119 Ibid.

121 Article 26 of the Act on the Supreme Court, as amended by the Muzzle Law.

122 See, inter alia, the open letter to the President of the European Commission by Pech, Sadurski and Scheppe- le et al. (2020) with reference to a similar letter issued in 2019.

123 Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe, Opinion No. 977/2019.

124 Press release, Rule of Law: European Commission launches infringement procedure to safeguard the inde- pendence of judges in Poland, 29 April 2020.

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In January 2021, the Commission sent the third of thus far three reasoned opinions to Poland regarding the ‘Muzzle law’. Given the absence of meaningful dialogue and high level of ten- sion between the parties, all indicates that the case eventually will reach the Court in Luxem- bourg.

2.4 Operationalising the Rule of Law

While this paper primarily rests on Poland an example of rule of law backsliding, serious con- cerns as to structural changes of the Hungarian judiciary formed the basis of an infringement procedure years earlier.

In 2011, Hungarian authorities introduced an early retirement policy, removing ten percent of its senior judges from the judiciary. As the reform ultimately permitted the Government to replace the newly retired judges with judges of their liking, the retirement policy was an obvious threat to the independence of the Hungarian judiciary. However, due to “absence of any general EU legislative competence over the independence and impartiality of national judiciaries”,¹²⁵ the Commission had to build its case on age discrimination when issuing an infringement procedure on the matter.¹²⁶ The eventual win was not solely a victory, leaving the threat to the rule of law unchallenged.

Reminiscent of the Hungarian case, the Commission identified the lowering of the mandatory retirement age of Polish judges in the new law on the Supreme Court to be a violation of the principle of judicial independence. Triggered by the legal engineering of recent case law, however, the Commission took a different and far more ambitious approach when issuing an infringement procedure on the matter. Relying on a newly established linkage between Article 2 TEU, Article 19(1) TEU and the Charter, the Commission had competence to protect the independence of the judiciaries at national level.

The infringement procedure in Commission v. Poland (Independence of the Supreme Court)¹²⁷ is part of a legal development of which the ECJ has encouraged the protection of national judiciaries. The development has contributed in two parallel ways, by emphasising the interdependency between the rule of law and judicial independence, but also by elaborating on the concrete content of judicial independence.

125 Kochenov and Pech (2015), p. 520.

126 C-286/12 Commission v. Hungary.

127 C-619/18 Commission v Poland (Independence of the Supreme Court)

Trust under Pressure A Norwegian Perspective on Rule of Law Backsliding in the EU