In Les Verts [1989] C294/83 the CJEU said that the EU is a ‘’community based on the rule of law?’’

Option 1: In Les Verts [1989] C294/83 the CJEU said that the EU is a ‘’community based on the rule of law?’’

To what extent do you agree with the statement? Critically discuss with reference a range of (and where appropriate) treaty law, legislation, case law, general principles and academic literature. In answering the question, you may also choose to make comparisons to domestic law.

European Union (‘EU’) as a sui generis legal order is a community founded on the principle of ‘rule of law’ (‘ROL’). However, the meaning and scope of rule of law is a contested concept, due to inherent normative indeterminacy. This essay explores whether ROL in the EU is well-settled and well-established principle.[1] This is linked with EU’s past, present, and future, its legal foundations, treaty systems, institutional mechanism, relationship between community and national law,[2] and general principles. EU’s role in promoting and implementing ROL in Member States has been subject of much criticism.[3] EU promotes ROL through special procedures, judicial interpretation, extensive executive enforcement mechanisms, treaty provisions, and widespread support for it in each EU Member State, despite its detractors and top-down efforts to undermine it, latest example between codification through the Rule of Law Conditionality Regulation 2020/2092, providing broad allen incorporating internally-oriented ROL definition.[4] However, severe ROL challenges and crisis are faced by the EU.[5]

The essay will explore arguments relating various mechanisms for protection of ROL in EU, its development and clarity, and two challenges to the existence and application of the doctrine in modern times.

The basic precept of rule of law in the EU was succinctly summarised[6] by then EU Advocate General Bordona, which the ECJ confirmed in Hungary and Poland judgments,[7] in relation to Regulation 2020/2092, as following, which is termed as basis for doctrinal consolidation qua rule of law in the EU[8]:

“272. Although the concept of the rule of law as a value of the European Union enshrined in Article 2 TEU is broad, there is nothing to prevent the EU legislature from defining it more precisely in a specific area of application, such as implementation of the budget, for the purposes of establishing a financial conditionality mechanism.  273. The concept of the rule of law has an autonomous meaning within the EU legal system. It cannot be left to the national law of the Member States to determine its parameters, because of the risk this would pose to its uniform application […]”[9]

There are various legislative, executive, and judicial mechanisms for Rule of Law Promotion in the EU. There are various legislative, executive, and judicial mechanisms in the EU that encapsulate ROL as a fundamental value[10] and ensure its enforcement in community and national laws and legal systems under its Enhanced Rule of Law Mechanism.[11] EU’s toolbox approach to the ROL, under the Rule of Law Framework 2014, was adopted to implement, comply, monitor, supervise, and reform ROL implementation across the union with a strategic approach.[12] ROL’s compliance is linked with EU funding in member states.[13] Serious infringements are referable to the CJEU.[14] It promotes a culture of ROL through public outreach and leverages European Commission’s institutional competence to monitor and report on level of compliance with it.[15] These and various other principles, laws, rulings, and mechanisms are able to meet emerging ROL crises in the EU, especially by majoritarian politics of certain Member States.[16]

There is a plethora of case law by ECJ that drives the point home about EU’s institutional and legal commitment to promotion of rule of law. In fact, ECJ is a major actor in realizing this ideal contained in Article 2 TFEU. Judicial independence for instance one of the pillars of rule of law and ECJ has interpreted Article 47 CFR and Articles 2, 19, and 49 TFEU to ensure it in Portgugese Judges,[17] Commission v Poland,[18] AK v KRS,[19] and other cases. In MoJ v Equality specifically judged on ‘systemic breaches of the rule of law’ and fair trial.[20]

The development and evolution of ROL has led to doctrinal clarity and uniformity across the Union. ROL is given meaningful content – substantive and procedural – in the community law in various sources, giving it definitional clarity and settled meaning.[21] One of the precepts of ROL is that laws and law-making processes should be certain, ascertainable, non-arbitrary, non-discriminatory, and predictable.[22] The various mechanisms identified in Argument 1 would lack effectiveness if the scope, content, and application of ROL remains uncertain.[23] It is argued that ROL – while being an evolving concept and framework – is constantly adopted, modified, and perpetrated throughout the EU with doctrinal clarity.[24] Its content and meaning is reinforced through multi-lateral institutional framework and promoted throughout the union. It is applied to new scenarios through legislative, executive, and judicial institutions of the community.[25] The contours of rule of law and its implications have been fleshed out by the ECJ concerning limits on executive,[26] separation of powers,[27] judicial independence,[28] and so on. The substantive principles and protections such as equality, due process, non-discrimination, and human rights are now part of ECJ jurisprudence on rule of law.[29]

Having discussed the strengths, doctrinal clarity, and multi-institutional integration of ROL in the EU, it is important to discuss how there can be challenges to EU’s executive ability to act based on ROL.

Two main issues might be highlighted in relation to ROL in the European composite administration.[30] As a result, administrative organisations are not required to adhere to a consistent set of legally enforceable standards while using their public authority. This problem stems from a lack of clarity on the legal foundation for the exercise of administrative power within the composite administration.[31] The lack of established procedures for judges to independently monitor the use of authority inside the composite administration is the second issue.[32]

No particular entity or body with administrative competence at the EU level is named in the EU Treaties.[33] The judicial and legislative branches, on the other hand, are clearly defined. Many clauses that were added after the Lisbon Treaty recognise the presence of these authorities, although in a roundabout way. According to Art.258 TFEU, “an open, efficient, and independent European administration shall support the institutions, bodies, offices, and agencies of the Union.” Furthermore, in accordance with the founding acts of the administrative bodies, this administration is recognised by Art.263(5) TFEU as having the power to enact legally binding actions that are susceptible to judicial review by EU courts.[34] The European Union does not have the independent legislative power to control the internal administrative systems or practices of its member states. 

As a result, the administrative cultures of the many parts of the European composite administration are different, and the composite administration as a whole lacks a unified constitutional framework.[35] As a result, separate constitutional frameworks control the various components of the composite process, the relevant laws of the European Union and the participating Member States, and other constitutional frameworks. In some types of administrative collaboration, this blending of constitutions is more noticeable than in others.[36] To protect the external borders, EU forces work with national border agency officials via Frontex, the European Border and Coast Guard Agency. In this setting, different standards apply to different groups of people. Data may cross national boundaries and authorities within the European Union EU and US, according to the administrative cooperation frameworks used by Data Protection Authorities, Financial Supervisory Authorities, or Competition Authorities.[37]

For the administration of public information, common standards have been set by the various Member States. Sector-specific EU legislation has put these criteria into effect. GDPR lays out a complicated set of guidelines controlling the processing of personal data in the context of public administration, and there are many instances of widely used policies regarding the confidentiality and secrecy of such information.[38] On the other hand, GDPR gives Member States a great deal of latitude in determining the reasons for processing personal data in certain circumstances as well as the steps necessary to adhere to proportionality requirements.[39]

European Union and national governments have different rules on document access inside the EU and criteria for efficient administration, such as the duty of care, file access, and stakeholders' right to be heard in administrative proceedings.[40]There are no set rules outlining who is responsible for protecting the person's right to be heard or other procedural protections when private or disparaging information about them is transferred from one competent authority to another pending an administrative decision.[41] This is because there aren't any universal rules controlling the exchange of this kind of data. Furthermore, the legal protections put in place to protect people's data rights may be undermined or even completely destroyed when data is moved across constitutionally distinct states. Personal health information collected for research reasons must be sent to the European Health Data Space upon request.[42] However, there are no clear rules guaranteeing that research participants' informed consent or established ethical approval processes will be followed in the proposed European Health Data Space. 

The previously mentioned problem of the lack of regular procedures to independently regulate the exercise of power within the composite administration is negatively impacted by the absence of a uniform legal framework for European composite administration.[43] As the ultimate authority on EU law, ECJ must have the authority to evaluate all legal actions taken in compliance with the EU Treaties, whether directly or indirectly.[44] This is the foundation of the "comprehensive system of legal remedies" established in the Les Verts case. It is difficult to discern between measures established directly under the EU Treaties and those passed under national legislation within the framework of procedural autonomy in composite administration, where EU and national constitutional and administrative norms are administered interdependently. It is not always clear that the court has the authority to examine the specifics of an administrative action or the decision that was given.[45]

There may inevitably be situations when the administrative or constitutional requirements of one legal system—whether it be the European Union or a national legal order—will be important when evaluating a matter in a different jurisdiction.[46] Only the vertical upholding of ROL from a national court to ECJ is the goal of the preliminary ruling system. There is no one system in place to independently control how power is used inside the composite administration. This happens in cases involving horizontal issues between Member States and when ECJ is in charge of evaluating national laws.[47]

This essay has argued that ROL is a cogent, well-settled, and meaningful doctrine and principle in the EU, and EU has developed nuanced and robust laws, mechanisms, judicial interpretation, and implementation measures for promoting ROL across its member states. There are multiple arguments on both side of the equation, for and against contention that rule of law is being promoted and protected in the EU. There are multiple institutions involved in its promotion. The rule of law is not merely an implied concept of value, rather it is enshrined in the Article 2 of the TFEU that promotes, inter alia, rule of law, democracy, and human rights in internal and external affairs of the Union. Moreover, the institutional mechanisms, ECJ’s jurisprudence, treaty system, and commitments of the Member States all support the contention that the EU law promotes, protects, and entrenches rule of law vertically and horizontally. There are considerable tensions between legislature, executive, and judiciary of Member States and EU institutions concerning breaches of rule of law.

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