Can Europe Make It?

The European Court of Justice as a bastion of democracy and rule of law

The crucial role of the ECJ appears even more important in present times, when things taken forgranted, such as democracy, individual freedom and the rule of law, are in danger.

Costantino Grasso
20 September 2018

Head of Poland's Supreme Court Malgorzata Gersdorf and judge Jozef Iwulski after a meeting with President Andrzej Duda at the Presidential Palace in Warsaw on 3 July 2018, Gersdorf vowing to resist the government's steps to remove her from her post. NurPhoto/Press Association. All rights reserved.

The express purpose of the European project is to assure peace, promote fundamental values and improve the well-being of nations. The painful  lesson  we  have  learned  with  the  Brexit  referendum  is  that  we  have  lost  track  of such  a  fundamental  objective. Public debate and discussion about the 2016 EU Referendum campaign was dominated by a single theme: the economic consequences of Brexit. Both leavers and remainers assessed whether or not the costs of leaving were greater than the likely benefits. A deeper discussion about the fundamental values on which the European Union is based was sadly missing.

The misconception is common that the European project should only aim at integrating the economies of the member states, whereas any attempt to influence their socio-political sphere has to be regarded as an undue interference in the internal affairs of the various countries.    

For practical reasons, the European Economic Community started operating as a regional organization which merely aimed at integrating the economies of Europe, but the plan for a political integration was always an integral part of the European project, built into its DNA. Just to mention a few of the visionary leaders who inspired the formation of the EU, in 1946 Winston Churchill advocated the establishment of the “United States of Europe,” urging Europeans to create a common family of justice, mercy, and freedom. The French political and economic adviser Jean Monnet publicly declared, well before the advent of globalization, that: “The countries of Europe are too small to guarantee their peoples the necessary prosperity and social development. The European states must constitute themselves into a federation...”.

Pluralist democracies

There is an intimate connection between the European Union project and the ideas of democracy and the rule of law. Since the Second World War, European nations have worked to build constitutional and parliamentary systems which protect individuals and minorities from arbitrary power. Pluralist democracies are the bedrock of this system, not only because they should be characterized by a dispersion of power among a variety of economic and ideological pressure groups, but also because they give citizens the right to be different and to criticise authority.

The very motto of the European Union, "United in diversity," which refers to the enrichment resulting from the continent's many different cultures, traditions, and languages, is emblematic of the close connection between the European Project and the concept of pluralist democracy.

In order to safeguard such democratic rights, any democracy has to establish a legal framework based on the rule of law, which, as ancient Greece and Republican Romans taught, consists of the idea that laws should be applied equally to all citizens.

It is not surprising that, under Article 21(2) of the Treaty on European Union, among the key objectives that define the Union's common policies and actions is included the aim of consolidating and support democracy, the rule of law, human rights and the principles of international law.

On the European continent, two fundamental international organizations, the Council of Europe and the European Union, aim at protecting human rights, pluralist democracy and the rule of law, as well as promoting awareness and encouraging the development of Europe’s cultural identity and diversity.

Nationalism and xenophobia in Europe today

This is a role which we need today more than ever. As the Council of Europe has highlighted in the 2017 report on the state of democracy in Europe, nationalist and xenophobic parties have made gains in a growing number of countries, challenging elites and exploiting public anxieties over migration.

In many European countries populist political parties are damaging democracy by limiting debate; delegitimizing dissent; dismantling the rule of law, parliamentary authority, free media and civil society; undermining individual human rights and minority protection; and challenging international checks on unrestrained state power.

European Union institutions may serve as a bastion of democracy and the rule of law, when national institutions drift towards authoritarianism and national governments prove to be incapable of defending the very fundamental values on which our free societies are based.

In particular, this crucial role may be played by the European Court of Justice (ECJ), which is not bound by the political constraints that typically limit the action of the European Commission.

European Court of Justice

In a decision earlier this year – Judgment of the Court (Grand Chamber) of 27 February 2018, Case C-64/16 – the ECJ has affirmed that judicial independence (i.e., judges’ responsibility to deliver justice independently, making impartial decisions based solely on fact and law) is a fundamental principle that has to be safeguarded all over the Union.

The case concerned the potential infringement of the judicial independence of Portuguese judges through the enactment of Law No 75/2014, by which the Portuguese legislature temporarily reduced the remuneration of a series of employees of the public sector.

Although the ECJ concluded that the salary-reduction measures at issue did not impair the independence of the Portuguese judges, its decision is potentially revolutionary in that it considers any attempt to undermine the independence of the judiciary of a member state as an attack on the entire Union. As a result, the ECJ is conferring upon itself the right to intervene against such attempts carried out at the national level.

In order to reach such a judgment, the ECJ confirmed that the principle of judicial independence is enshrined in both Article 19(1) of the Treaty on European Union and Article 47 of the Charter. It then affirmed Article 2 of the Treaty, to the effect that the European Union is founded on values, such as the rule of law, which are common to the member states in a society in which justice prevails; and national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly. In other words, from the ECJ perspective, the various national judicial authorities are part of a common European judicial network whose integrity is essential for the correct functioning of the European Union.

In particular, according to the reasoning of the Court, the independence of national judicial authorities is vital to assure effective judicial protection of individuals’ rights all over the Union, which in turn represents the very essence of the rule of law.

The case of Poland

With this judgment the ECJ has prepared the ground to rule on the independence of national judiciaries in any other member states. The obvious candidate is Poland, where the nationalist Law and Justice (PiS) government has reduced the public broadcaster to a propaganda organ, packed the civil service with loyalists purging the public administration, and undermined the independence of the judiciary by stacking the Constitutional Tribunal with its cronies and enacting pieces of legislation to put under its control judicial appointments. In July 2018, the head of the Polish Supreme Court, Małgorzata Gersdorf, was even forced to step down from her job through a retirement law passed by the ruling party. The senior judge described the law as “a purge of the supreme court, conducted under the guise of retirement reform.”

The judgment taken by the ECJ is a glaring example of how the European Union institutions can give full force to the four freedoms — the movement of goods, services, capital, and people — that our national politicians struggle to deliver. This crucial role appears even more important in present times, a time where things taken for granted, such as democracy, individual freedom and the rule of law, appear to be in real danger. The following statement made by Barack Obama in his inspiring speech Defending Democracy is emblematic of such a situation: "I am not being alarmist, I am simply stating the facts. Strongman politics are ascendant suddenly, whereby while elections and some pretense of democracy are maintained, those in power seek to undermine every institution or norm that gives democracy meaning."

Europeans have the privilege to live at a time where the European Union, established on the rubble of the European cities destroyed during the Second World War, watches over the application of the rule of law in their countries.

But the European Union project does not have a God-given right to survive. Europeans must continually rediscover its fundamental importance and take on responsibility for ensuring that the European project is safeguarded. This is particularly important at the present time when illiberal forces are advancing across the European continent, and when the consequences of the Brexit referendum may potentially destabilize the very structure of the Union.

This article draws upon material from my opening remarks to the international conference “Rediscovering the European Union Project in the Light of the Brexit Referendum” held in London on July 20, 2018 and the paper presented during the same event.

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