The EU’s budget proposal for 2021-27 contains a new tool to take away funding from member states that undermine the rule of law. Although not specifically mentioned, the proposal is motivated by authoritarian government actions in Poland and Hungary threatening judicial independence.
In theory, the proposal ought to be popular because who would not support the rule of law and judicial independence? And that is precisely the problem: these concepts are over-determined and capacious – they mean different things to different people. Even tyrants profess to support the rule of law.
Perhaps the bigger problem is that the EU rule of law conditionality is tackling the symptom and not the disease. Threats to judicial independence are a symptom of a bigger malaise. Taking away funding might make the symptom go away but will do nothing to address the disease: insufficiently developed democratic institutions and lack of public socialisation about the need to support the rule of law.
First, what is being proposed? The EU is being given power to adopt measures when a generalised deficiency ‘affects or risks affecting the principles of sound financial management or the protection of (EU) financial interests.’ Measures include suspension or reduction of payments and funding commitments, and a ban on new commitments. Examples of deficiencies include ‘endangering the independence of judiciary,’ failure to ‘prevent, correct and sanction’ arbitrary decisions by public authorities, and imposing constraints on the availability and effectiveness of legal remedies.
A recent ECJ case illustrates how difficult it is to determine threats to judicial independence and the rule of law. In the case of Associação Sindical dos Juízes Portugueses (Case C-64/16), the Portuguese legislature temporarily reduced the pay of public sector employees including judges of the Tribunal de Contas (Court of Auditors). The ASJP, acting on behalf of the judges, commenced proceedings before the Supreme Administrative Court of Portugal to annul the order. They argued that the salary-reduction measures violate ‘the principle of judicial independence’ in Portugal’s Constitution, and article 19(1) TEU, and article 47 of the Charter.
The ECJ opined that article 19 TEU “gives concrete expression to the value of the rule of law stated in Article 2 TEU” and “entrusts the responsibility for ensuring judicial review” across the EU legal system both in the ECJ and national courts. Therefore, national courts play a role in ensuring proper application of EU law.
The court explained that member states are “obliged, by reason … of the principle of sincere cooperation …[in] Article 4(3) TEU, to ensure … the application of and respect for EU law.” Further, per Article 19(1) TEU, they are to “provide remedies sufficient to ensure effective judicial protection for individual parties” – a “general principle of EU law stemming from the constitutional traditions common to the Member States.”
Moreover, effective judicial review is of the “essence of the rule of law” and courts must “meet the requirements of effective judicial protection.”
The court also noted that judicial independence “presupposes …[court] exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.”
In that context, just as judges have to be given security of tenure, they must also receive pay “commensurate with the importance of the functions they carry out.”
Despite these statements, the ECJ ruled that the salary-reduction did not violate the rule of law. The reduction was linked to Portugal’s budget deficit, was temporary, and not solely targeted at judges. The court concluded that “the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude general salary-reduction measures.”
To be sure, it is possible that more specific targeting of judges may run afoul of the court’s boundaries. Nonetheless, the court’s reasoning exposes the difficulty in defining what constitutes an illegal intrusion into judicial independence.
In addition, much of the support for the EU’s proposal is based on adverse actions against courts or judges. But what if a smart government doubles the pay for judges and provides them with extremely luxurious conditions? Would that violate judicial independence? And would the EU suspend funding to such a member state?
Clearly, in such a situation, the EU cannot expect judges to complain. Judicial independence may be undermined by bribery and golden handcuffs just as by threats and coercion.
The true antidote to these problems is not to look at the symptoms but to tackle the disease. Hungary and Poland are experiencing problems because the rule of law has not been sufficiently embedded into their polities. Both states have had very short democratic histories and there may not have been sufficient effort to develop public understanding of the importance of the rule of law or independent institutions that are necessary for its sustenance.
In the absence of public understanding, it is easy for politicians to attack the judiciary under various guises: that judges are overpaid and underworked elites, courts are corrupt, judges obstruct quick solutions to problems, protect those from privileged backgrounds, etc.
It is only possible to resist such attacks if the public values judicial independence and votes out politicians who threaten it. External interventions are undemocratic and unlikely to be effective – politicians will mobilize citizens against external meddling and the EU’s actions may prove counterproductive.
Instead, the EU can protect the rule of law by socializing citizens of all member states about its importance. Socialization eliminates the need for additional bureaucracies to monitor judicial independence.
One innovative solution may be something akin to a pledge of allegiance for all EU citizens: instilling respect for EU law, institutions, and the democratic norms that underpin the union. That would be cheaper and more efficient than a rule-of-law budget conditionality. It would also eliminate conflict between member states and the EU, and translate abstract notions such as the rule of law into an uplifting participatory event for all citizens.