"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
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The 21st century witnessed the end of the age of innocence. Memories of the miraculous year that was 1989 have faded since 11th September 2001. A wave of terrorist attacks swept through several European capitals, calling into question the constitutional state’s ability to protect itself. In 2008, the global economic crisis brought the European social model to its knees. Later on, in 2020, the pandemic challenged humanity's relationship with nature. At the time of writing, Russia has invaded Ukraine, undermining the utility of cooperation as a political instrument. Meanwhile, the European Union is trying to find its rightful place, well aware that it is no longer enough to emphasise its socio-economic achievements. Fundamental consensuses appear to have broken down and the European project yearns for renewed political horizons with which to justify itself to its citizens.
This essay focuses on the political defence of constitutional values, which is one way the Union has tried to rebuild its legitimacy. At the outset, it is worth clarifying the very concept of political defence, which has deep historical roots and is essentially understood as a counterpoint to judicial review. Today it is of limited but necessary practical importance as reflected in Article 7 of the Treaty on European Union (TEU), together with the new instruments introduced in the last decade, the Rule of Law Framework, the Rule of Law Mechanism, and the Conditionality Regulation, whose common features in particular are: subsidiary action, having potentially preventive value, and aimed at articulating a rule of law standard.
Extending the means to defend the rule of law against regression in the Member States leads, in this author’s view, to two major developments. The first marks the shift from a project shaped around the importance of law to one based on values. The goal is to create a new paradigm of legitimacy, with its corresponding legal and constitutional theory, and changes in institutional architecture. Underlying all this is the notion that universal rationality compels the Union to uphold constitutional values. This situation brings about the second development, for in giving substance to the rule of law, the Union takes on the task of making constitutional policy.
2.1. Some terminological clarifications: political defence versus judicial review.
The political defence of the Constitution is a classical category in constitutional theory, but its practical relevance has clearly diminished since the advent of judicial review. Today, political defence is rarely called upon but is used, for example, in states of emergency, to maintain federal homogeneity and, to an extent, in the criminal prosecution of certain officials, most notably in impeachment.
The separation between political defence and judicial review is possible if a prior distinction is made between breach of the norm and lack of effectiveness. The former concerns the case in which one norm contradicts another superior norm. Lack of effectiveness describes the phenomenon whereby a norm, despite being in force, is generally disregarded in practice.[01]
At the dawn of constitutionalism, political defence was intended as an instrument to resolve a crisis involving breach of the norm or lack of effectiveness within the Constitution.[02] Insofar as a defence was attributed to political motivations, it de facto implied the protection of the majority or, at least, of the supposedly legitimate institutions. Ultimately, it was an instrument to prevent war within the state, a situation that points to a prerequisite of political defence: whoever exercises it must necessarily have sufficiently strong power of coercion.
2.2. The political defence of values in the Union. Origin and evolution.
The existing Article 7 TEU provides a mechanism for the political defence of constitutional values, which fits into the category outlined above. As a brief reminder, it originated as a complement to Article F of the Maastricht Treaty (1992).[03] Article F defined the constitutional configuration of the Union and the Member States, through a reciprocal relationship requiring the former to respect national identity and fundamental rights, and the latter to uphold a democratic system of government. The Treaty of Amsterdam (1997) introduced some conceptual nuances reflecting a different understanding. No longer was it enough for the Union to respect fundamental rights; it now had to be based on those rights, while also including freedom and democracy among the principles on which the Union was founded. Above all, however, the instrument of political defence was introduced, which is now regulated by Article 7 (formerly F1). By virtue of this precept, the constitutional principles on which the Union was based became a parameter for controlling the Member States’ behaviour and thus also a basis for its legitimacy. The assumption of fact that would trigger enforcement was established as an actual infringement ("the existence of a serious and persistent breach"), without risk of such an event being a prerequisite for action, something that would be incorporated later. Moreover, the political nature of the control was clearly stipulated, granting the Council the power to exercise it "in its composition of Heads of State or Government", to be applied through the suspension of rights, a measure under continual review.
The Constitutional Treaty (2004) and then the Treaty of Lisbon (2009) transformed the principles into values and expanded them. No clear conclusions can be drawn from this change in the type of norm, as both legal categories operate with a general effectiveness requiring further elaboration. Nor is the increase in the number of values more important than the clarity of the detail; under the previous criteria of freedom, democracy, and fundamental rights, it was easy to infer those of human dignity, equality, the rule of law, pluralism, non-discrimination, tolerance, justice, and solidarity.
After Lisbon, Articles 2 and 7, taken together provided a relatively clear legal regime. The values as a whole gave rise to a homogeneity clause, being a reciprocal basis for the political legitimacy of the Union and the Member States. They established a horizon of justice, they were standards for controlling the accession of new Member States and, existing Member States likewise had to uphold these values, or else suffer the consequences set out in Article 7.[04] In practice, however, the applicability of Article 7 was called into question almost from the outset. For instance, when a coalition government involving the FPÖ was formed in Austria, the other Member States staged an informal boycott and refused to invoke Article 7.[05] It was envisaged that this precept would create more problems than solutions, a view that seems to be a factor in the new instruments for the defence of the rule of law. Indeed, today three mechanisms aim to avoid the invocation of Article 7 through early intervention: the Rule of Law Framework (2014)[06]; the Rule of Law Mechanism (2019); and the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (henceforth referred to as the Conditionality Regulation).
What follows are a few brief remarks on the three instruments, which share some common features. The first concerns the concept of the rule of law in use since the Second World War, at least in continental Europe, as part of the broader category of the constitutional state, also encompassing its democratic and social nature. The axiom of the social and democratic rule of law has become a paradigm. However, this rise of the concept of the rule of law does not mean an erosion of the principles to be upheld. When the Framework describes the features of the rule of law, the characteristics of the constitutional state appear, in that "there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa". This is also the case with the Conditionality Regulation, which stipulates that the "rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights […]”.
A major difficulty is justifying the legitimacy of Union intervention to ensure that constitutional values are being properly upheld in a Member State. This is why the Blueprint stresses that Union action will always be subsidiary, with the primary obligation resting with the Member State.[07] Union action would be underpinned by the well-worn principle of cooperation that “underlines the duty of the Union and the Member States to assist each other, which means there is a responsibility on all EU institutions to provide proportionate assistance to Member States in ensuring the respect of the rule of law”. The Union’s weak position largely explains why the Framework and the Mechanism have been articulated through soft law. In this respect, the fact that the latest instrument takes the form of a Regulation underlines the gradual consolidation of the idea of a Union of values, something about which conclusions will be drawn later.
The Framework and the Mechanism place emphasis on prevention. The former “seeks to resolve future threats to the rule of law in Member States before the conditions for activating the mechanisms foreseen in Article 7 TEU would be met. It is therefore meant to fill a gap”; the latter introduces “significant developments”. This preventive role perfectly explains the use of dialogue procedures for finding solutions. Such a dialogue mechanism is, however, much more evident in the Mechanism than in the Framework, since the latter largely replicates the procedure prior to recourse to Article 258. Likewise with the Conditionality Regulation, which has already moved beyond the threshold of prevention and into the realm of enforcement, leading to the suspension of payments, commitments, disbursements, and loans.
The parameter of control becomes a key factor. Insofar as the three instruments, particularly the Framework and the Mechanism, are intended as an alternative to Article 7, any such parameter would have to draw a line at a threshold before the “risk of a serious breach”. The Framework opts for the category of "systemic threat” resulting from new measures or widespread practices. It is difficult, however, to distinguish this from the risk of a serious breach, and could conceivably even exceed this threshold, since the threat must affect the constitutional structure, i.e. more than one element, or one so important that it compromises the entire model. However, in light of the dialogue procedure and the aim of prevention rather than enforcement, it can be assumed that this parameter is being defined gradually depending on the circumstances, as is the case with the accession of new States. All in all, there is a clear attempt to bring the political steering approach established for the economy in the European Semester into the domain of the rule of law.
In the Conditionality Regulation the parameter is split. Firstly, breaches must “seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way”. Secondly, there must be a breach of the principles of the rule of law, such as the independence of the judiciary, arbitrary or unlawful decisions by public authorities, or limitations on the effectiveness of judicial protection or the prosecution of breaches of the law. And although the breach is not defined by intensity or number, the framing of the parameter leads to the logical conclusion that a sporadic breach is not enough, but that it must be widespread or likely to become systemic.[08]
3.1. The Community of Law.
a) Founding myth and countermyth.
The notion of the European Communities as a Community of Law is one of the founding myths of the integration process [09], not forgetting its political counterpart, and arguably its nemesis, the European Political Community and, to a lesser extent, the European Defence Community. With “law” being the operative word, politics was sidelined from the European community, being a matter for the States. At the same time, however, it reflected an approach to law-making, typically involving procedures geared towards reaching a broad consensus between the parties concerned. It thus separated itself from the dichotomy between majority and opposition, the rationale lubricating the wheels of state institutions. More than anything, it dovetailed perfectly with the overriding objective of integration, which was none other than the construction of an internal market. It went without saying that this required legal security above all else and was separable from the state.
b) Legal theory: the Treaty as Constitution.
Very soon, the academic world gave the idea of the Community of Law a legal theory, no doubt spurred on by case law from the Court of Justice, where individual rights were recognised in norms couched in wording typical of an international treaty[10]. Often hailed as revolutionary, this shift had a number of important consequences. To begin with, despite the clear economic content of the individual rights recognised by case law, technically they functioned in the same way as a fundamental right, i.e. they protected a range of interests even vis-à-vis the state legislator. Secondly, the theory behind the Court of Justice’s case law largely endorsed the trend towards a dogmatic approach to fundamental rights, which helped rationalise their application. This approach also paralleled the evolution of constitutional law, which in turn was understood as a law of individual rights[11]. And finally, the widespread recognition of individual economic rights left compliance with Community Law in the hands of thousands of individuals and companies.
c) Constitutional theory.
Less clear was the political-constitutional theory accompanying this legal-constitutional theory. Early attempts were made to explain Community Law as a legal order of original autonomy, fruit of a sort of Hart-style legal revolution, whereby state regulators would supposedly recognise Community Law as supreme even vis-à-vis their own Constitution.[12] However, this thesis had no real basis, either because no such recognition took place de facto, or because it was impossible to overlook the role of national Constitutions in ongoing treaty reform. It was, in essence, a thesis lacking in explanatory realism.
Perhaps more profound is the idea that it is possible to create a Community of individual rights primarily within the economic sphere. It was indicative of a functional division, with the Community playing a balancing act against protectionism while leaving the State to get on with the main political functions.[13] This view was also rooted in a classic problem, that of the distinction between state and society, law and economy. Moreover, this constitutional theory applied John Ely's theses to the integration process. Whereas in his view, fundamental rights should correct the legislative procedure by accommodating the interests of overlooked minorities, in Union law, fundamental freedoms would rectify state legislative procedures, making room for the foreign economic operator who had been disregarded.[14]
d) Institutional theory.
Finally, this theoretical conglomerate was rounded off by an institutional architecture, in which the Communities lacked both the administration and the judiciary for law enforcement. Making state administrations and judiciary community-based was undoubtedly intended to improve efficiency. However, it also reflected a democratic strategy, as the Communities relied on two pillars of the rule of law - administration and judiciary - upon which many of the grounds for legitimising state action were projected. So, in a manner of speaking, the Communities and then the Union were subrogated to the State’s constitutional position.
3.2. Union of values.
a) In search of a new myth and countermyth.
The poor handling of the 2008 economic crisis prompted the search for a new narrative, as it was clear that under no circumstances could austerity be used to explain the Union's raison d'être.[15] The pandemic and the rise of populism have provided an opportunity to revisit assumptions of legitimacy, with a significant shift towards the concepts of solidarity and a Union of values. It is this second factor which lies at the heart of this essay.
Populism would seem a priori to be the contradiction to the Union of values, in its crudest forms deploying measures that clash with our constitutional culture. However, there is no disputing that populism stems from a sophisticated and robust premise - national identity - with deep constitutional roots, as shown by the German Constitutional Court[16]. National identity asserts uniqueness so great that it cannot be curbed by Union nor any other law. Ultimately, national identity (and whoever determines it) overrides legal forms.
However, the Union of values also lays claim to an identity, albeit an identity that does not separate but unites. The Union’s values are shared by the Member States, which is precisely why they have become the Union's own.[17] Under the circumstances, in principle there should be no clash of identities. However, constitutional values are inherently contested concepts.[18] Indeed, they were born to be contested, and their interest lies in the debate they provoke.[19] Anyone is capable of crafting a definition of the rule of law general enough to be accepted by the masses. But it is feasible and indeed reasonable that each definition will vary. This will lead later to the issue of standards.
b) Legal-constitutional theory.
Values are a classical legal category in constitutional theory. Scholars generally hold that values do not provide a mandate, but rather point to something that is good in itself[20]. This quality implies low justiciability, which is developed through other precepts that give values substance in different areas. In this sense, the Commission and the Court of Justice have shown great skill in ensuring their recognition in the courts, establishing precise legal rules concerning the organisation of the judiciary from the value of the rule of law.[21]
Traditionally, values have enjoyed a normative status beyond the courts’ reach. Firstly, within constitutional norms, they do the job of appealing to the ordinary citizen, rather than to the legal practitioner, so that when they read the Constitution, they find something that gives them an idea of justice[22]. Secondly, values should permeate the whole legal system, defining the social structure. One need only recall the impact that constitutional values have had on the objective understanding of fundamental rights.[23]
It is worth pausing to consider the new regulations that the Union is developing from values, or at least from the value of the rule of law. Turning to the instruments, the Rule of Law Mechanism in particular, the Union is transforming the value into a standard, i.e. an institutional model. In other words, the Union is creating constitutional models that already involve balancing the value of the rule of law against other values. It is obvious that this was the very function of (state) constitutions, i.e. to declare a set of values and then flesh them out with detailed institutional norms.[24]
c) Constitutional theory.
The rule of law needs no constitutional theory to explain it. When it is declared a value of the Union and common to all the States, it is assumed that it has gone beyond the justification phase and that the rule of law is good in itself. The difficulty lies in arguing for a Union power to impose the rule of law on Member States whose constitutional arrangements differ from the shared standard.[25]
The issue is at its most problematic when a crisis of the rule of law in a Member State is the result of the sustained strategy of a government majority with strong electoral support. At this point, some would argue that there is nothing new under the sun and that this is the classic question that gives constitutionalism its raison d'être: constitutional law exists to restrict the majority and protect the minority. It would then be enough to revisit the old theories explaining the meaning of the Constitution. Within the State, restrictions on the majority are accepted for two basic reasons. One is moral: how we treat the dissident, the minority, is a measure of our quality as a political community. The other is functional, some might even say opportunistic: the majority must be reined in because tomorrow ‘I’ may be in the minority; a minimum of respect for the rules of the game makes the game itself possible. However, these positions are weakened in the supranational context for one simple reason: the boundaries are external to the political community. Why should foreign barriers be allowed to stand in the way of defining our constitutional nature?
This is no minor stumbling block. It becomes even greater considering that, in practical terms, enforcement requires a certain degree of coercive power. The real power of legitimate authority is realised through coercion. If legitimate authority cannot be imposed through coercion, then public power loses its footing and becomes redundant.[26]
It should also be remembered that there are various solutions to the problem. Dawson has argued, for example, that the EU could respond to the current challenge of populism in two different ways.[27] It could isolate itself from the problem, thereby shielding the Union from contamination without engaging in the conflict. Alternatively, it could counteract by allowing primary law to take account of certain singularities that diffuse conflict, or by channelling and managing it through the institutions.
The Union has however decided to intervene, with various Union documents calling for loyal cooperation. Nevertheless, loyal cooperation cannot be an argument for legitimising the constitutional pre-eminence of the Union, but rather the consequence of it. It does not address the main issue: why the Union should enjoy new powers. In official documents, the need for the rule of law to ensure the smooth operation of the internal market is often linked to mutual recognition. There is no doubt that the market needs legal certainty. But it is common knowledge that this legal certainty only needs to apply to certain areas, such as investment. The example of China is paradigmatic in this regard. China is a major player in global capitalism, and is so without conforming to the rule of law paradigm.
Having discarded these possibilities, it appears only two remain. The first relates to a classical view of federalism: the Union could intervene in Member States’ constitutional affairs because it enjoys political pre-eminence. This is the thinking behind Article IV, Section Four of the U.S. Constitution. The Federation is above the States and has a protective and even corrective role to play in order to maintain the very conditions of belonging that define this political community. Here, however, it seems we are far from being able to proclaim the Union's political pre-eminence, essentially because it lacks a federal-like coercive power.
At this point, the Union's intervention can only be justified if we acknowledge the universal validity of certain values. These values confer a sense of belonging to the Union, meaning that there is only one way to belong. The Union would no longer just regulate the market, compensating against the excesses of the nation-state (protectionism). Now it would also regulate justice, likewise compensating against the excesses of the nation-state (populism).
d) Institutional structure: coercion through spending.
The European Union did not need coercion vis-à-vis the Member State, coercion in the sense of the various forms of power to impose measures on or prevent action by those who would break the rules (by way of penalties, subsidiary execution, enforcement on assets, and coercion on persons, etc.). Coercion was essentially articulated within state institutions. The current context presents an unexpected hypothesis: how to impose a political concept of justice on a Member State when it has not been defined by a majority of the citizens of that State. The situation resembles cases where the primacy of Union law has been contested in court, insofar as coherence over fundamental principles is breached. In this second case, however, the crisis occurs within the framework of the judicial dialogue and is framed in the context of a case. It is a conjunctural moment, with the situation being recomposed by mixed messages from the courts, the way in which the ruling is put into practice, and its future course. Court rulings are a starting point and not an endpoint.
Certainly, the instruments safeguarding the rule of law, especially the Mechanism, embrace this idea of process, of gradual integration, which is used for Member States seeking accession to the Union. The pursuit of shared objectives is expected to ensure alignment and obviate the need for coercion. The Conditionality Regulation, however, represents a radical shift. This is not to be confused with the control and liability assumptions for expenditure instruments provided for in the Financial Regulation. These mechanisms are strictly concerned with the consequences of maladministration, and are not coercive measures in the sense of imposing or preventing action. By contrast, under the Conditionality Regulation, the suspension of payments, commitments, disbursements, or loans is the consequence of a breach of the rule of law and has a clear mandatory purpose aimed at putting the Member State to rights.
It is worth recalling that the Constitutional Treaty was an attempt to confer upon the Union a dual legitimacy on a par with that of state constitutions: in terms of origin, generating a sort of constitutional moment, in which national instruments (referenda, qualified majorities) would endow primary law with a singular democratic legitimacy; in terms of content, attempting, through language, to give the Union an air of constitutionalism comparable to that upheld in constitutional culture. Lisbon was a tactical way of escaping the failure of the European Constitution, putting on hold the need to define the European political project more precisely. Since then, the economic and health crises have accelerated the need for decisions of obvious constitutional significance.
The functional division that had characterised the integration process has undoubtedly broken down.[28] The economic crisis has made it clear that the Union no longer merely compensates for the economic excesses of the nation-state but, through conditionality, has moved directly into setting the pace for economic and social policy in many States. The austerity mandate, introduced through economic solvency and liquidity assistance, made internal devaluation through wage cuts and rising unemployment the new paradigm for dealing with the hardships of the day. This, in turn, brought the Union squarely into the realm of social conflict. This foray into day-to-day political affairs accounts for the Union's turnaround in the second crisis when, mindful of its own fragility, it adopted unprecedented solidarity measures, including the issuance of Union debt.
It is in this context of long-term redefinition that the Union of values is established. As in the economic sphere, this upends the traditional functional division between the Union and the Member States. The Union is now involved in issues on which it has hitherto had little or nothing to say, as they were matters of national concern (judicial independence, corruption, the media, etc.). Moreover, it is taking the unprecedented step of setting standards or models, and overseeing Member States' compliance with them.[29] To put it bluntly, the European Union is making constitutional policy.[30]
The concept of constitutional policy is best understood when set against that of constitutional jurisdiction. Constitutional jurisdiction marks the boundaries of policy making; constitutional policy is a type of policy making that explores the margins of the Constitution and gives them substance, generating a broader discourse that shapes the boundaries. They play different roles, hence they are formed in different ways. The courts pursue objectivity through legal means and operate within the narrow scope set by the parties to the proceedings. Constitutional policy should instead be forged through a process involving socially relevant players, culminating in a source of law (either a law or a constitutional amendment). Constitutional policy is thus a kind of surrogate for the Constitution, in the sense that it helps address problems with no definitive solution, and so usually relies on sources with a procedure demanding special legitimacy. Here, however, the Union departs from the classical model. The Commission creates the standards drawing on materials generated by the Court of Justice, the ECHR, and the Venice Commission. These are not drawn up in a source of law, but in a contentious procedure, or in a dialogue procedure.
The Union's approach to upholding values raises some concerns. First of all, it reveals a clash of identities that is difficult to resolve. The efforts of some constitutional courts to define a constitutional identity have long been called into question. The very existence of such an identity was contested.[31] As far as we are concerned, however, it underlines the problem of defining this intangible element in the constitutional courts, without the wider participation of other political players.[32] Identity was thus framed as being something static, unchanging in the face of society's natural evolution and its democratic expression. Now, the Union reflects this dynamic in a sense, with constitutional values being expressed by the Commission. The Commission does initiate a dialogue process, but it is a judicial, rather than a democratic, process. Similarly, strictly speaking, the Commission does not act unilaterally as its analysis is enriched by the ECHR's case law and the Venice Commission's contributions. Once again, however, this is about shaping constitutionality without the special legitimacy usually attached to constitutional policy decisions.
The second problem arises from the democratic paradox that goes hand in hand with the political defence of constitutional values. It is clear that in the current context, the EU's protection of values is at odds with the principle of national democracy (and not simply with a constitutional court’s definition of the rule of law). We are thus faced with two supposedly democratic arguments which, moreover, is nothing new at the EU level. A priori there is a straightforward solution, which is to claim that the policies pursued in certain Member States, although democratically adopted, lack democratic substance. This is the basic paradigm of constitutionalism, which is built on a concept of democracy not exclusively rooted in the majority principle, but where the majority outcome must be respectful of certain elements. However, this reasoning makes sense precisely because of the existence of a Constitution born out of the constituent power. Indeed, we assume that the substantial limitations of the majority decision are explained by the fact that the Constitution springs from a force of greater constitutional legitimacy. This, however, is the piece that has been conspicuously missing in the context of the Union.
This constitutional deficit is again the vacuum that prevents the smooth transfer of constitutional categories into Union law. The way out of this muddle certainly does not seem to be found in the pipe dream of a European Constitution. That ship has sailed. In this author's opinion, the path to resolution lies in deconstructing and reconstructing the aspects of legitimacy embodied by a Constitution. As is well known, every political community seeks legitimacy of origin, substance, and functionality in a Constitution. The former refers to the special legitimation that led to the supreme norm. The second refers to prototypical contents without which a text cannot be identified as a Constitution. And the third refers to the Constitution's ability to rationalise the political process by ensuring effective public action.
Clearly, the idea of a Union of values rests heavily on the second element, on substantive legitimacy. This implies a devaluation of democracy as a process, especially at the Constitution-building stage. One could dare to say, however, that this is nothing new in the post-World War II European constitutional landscape, where the concept of constituent power is blurred in praxis and replaced at best by the notion of a constitutional moment, which serves to highlight features of special democratic legitimacy.[33]
It cannot be denied that the classical spill over theory, while not offering a full explanation, provided a comprehensive understanding in light of historical developments: the internal market was a natural call for economic and monetary union, and this necessarily meant a certain degree of political union.
However, this type of analysis has lost all relevance since the 2008 economic crisis. It is no longer a case of assessing how the Union evolves from its internal rationale; the task is to examine the solutions offered by the Union in the face of exogenous factors. In this sense, as a response to the crisis caused by states with populist majorities, the Union of values is undoubtedly a step placing it squarely at the heart of addressing social conflicts. It is also a risky undertaking. This is not a scenario where an established political unit, with proven constitutional experience, enjoys qualified legitimacy in the eyes of citizens to impose its values on other political units. The political defence of values is undoubtedly an attempt by the Union to re-establish its legitimacy. Not only does this defence seek the effective implementation of the rule of law, but the Union also wants this move to reposition it in the eyes of its citizens. It is clear, however, that the Union is gambling everything in the realm of facts. Failure to achieve clear success will be a major blow to the integration process.
Resumen: El siglo XXI ha presenciado una serie de crisis que han desafiado los principios fundacionales y la legitimidad de la Unión Europea. Desde la crisis económica de 2008 y la situación del Brexit hasta la crisis migratoria, la pandemia y la invasión rusa de Ucrania, cada desafío ha puesto a prueba la capacidad de la UE para mantener su cohesión sociopolítica. Este artículo examina la defensa política de los valores constitucionales como medios para reconstruir la legitimidad de la UE y la defensa del Estado de Derecho en los Estados Miembros.
El concepto de defensa política, en contraposición con la revisión judicial, señala un cambio de paradigma desde un enfoque centrado exclusivamente en la ley hacia una legitimidad basada en valores. Este artículo analiza el uso de este concepto con el objetivo de establecer una nueva legitimidad, respaldada por una sólida teoría legal y constitucional, así como por modificaciones en la estructura institucional. Instrumentos recientes como el Marco de Regulación del Estado de Derecho, el Mecanismo y el Reglamento de Condicionalidad tienen como objetivo mantener estos valores de manera preventiva, subrayando el papel de la UE en la garantía del Estado de derecho y su activa participación en la formulación de políticas constitucionales.
Palabras claves: Unión Europea, defensa política, valores constitucionales, artículo 7 TUE, Estado de derecho, legitimidad, crisis europea, Marco del Estado de derecho, Reglamento de condicionalidad, política constitucional.
Abstract: The 21st century has seen a series of crises that challenged the European Union’s foundational principles and legitimacy. From the economic crisis of 2008, and the Brexit situation to the immigration crisis, the pandemic and the Russian invasion of Ukraine, each event has tested the EU’s ability to maintain its socio-political cohesion. This article examines the political defence of constitutional values as means to rebuild the EU’s legitimacy.
The concept of political defence, contrasted with judicial review, has historical roots and contemporary relevance, particularly reflected in Article 7 of the Treaty on European Union (TEU). Recent instruments such as the Rule of law Framework, Mechanism and Conditionality Regulation aim to uphold these values preventatively. These developments signal a shift from a law-centric paradigm to a value legitimacy, underscoring the EU’s role in constitutional policy.
Key words: European Union, Political defence, Constitutional values, Article 7 TEU, Rule of Law, Legitimacy, European crisis, Rule of Law Framework, Conditionality Regulation, Política constitutional.
Recibido: 2 de mayo de 2023
Aceptado: 2 de mayo de 2023
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[01] Regarding the categories of breach of the norm and lack of effectiveness, F. BALAGUER CALLEJÓN, Fuentes del Derecho. Principios del ordenamiento constitucional. Vol. I, Tecnos, Madrid, 1991, pp. 120 and ss.
[02] In a historical perspective: Un estudio de la defensa política en la historia de España, S. ROURA GÓMEZ, La defensa de la constitución en la historia constitucional española: rigidez y control de constitucionalidad en el constitucionalismo histórico español, CEPC, Madrid, 1998.
[03] For a further reading, M. AZPITARTE SÁNCHEZ, «La cultura constitucional de la Unión Europea. Análisis del artículo 6 del TUE», in F. BALAGUER CALLEJÓN (coord.), Derecho Constitucional y cultura. Homenaje a Peter Häberle, Tecnos, Madrid, 2004.
[04] However, López Aguilar has described it as the Copenhagen dilemma, pointing out the contrast between the requirement to comply with the values when joining the Union, compared to the lack of effective means to demand compliance during membership of the Union, J.F. LÓPEZ AGUILAR, « El caso de Polonia en la UE: retrocesos democráticos y del Estado de derecho y «dilema de Copenague», Teoría y Realidad Constitucional, 38, 2016, p. 107.
[05] See, in this regard, in this same number: S. MANGIAMELI: «La democracia representativa en la UE y la opinión pública europea. problemas y perspectivas», Revista de Derecho Constitucional Europeo, No. 37, 2022.
[06] F. BALAGUER CALLEJÓN, «Democracia y Estado de Derecho en Europa», La Cittadinanza Europea, 2, 2020, p. 35. It can precisely be argued that the Mechanism has displaced the Framework. However, a formal repeal has not occurred, surely because such a conception is inadequate when we are talking about soft law. Therefore, the displacement would only be functional; that is to say, the Mechanism overrules the Framework because it is more useful for the purposes of the rule of law. However, it would not be surprising if, in the future, if it becomes necessary to apply Article 7, the Framework would be dusted off.
[07] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions Strengthening the rule of law within the Union A blueprint for action.
[08] The parameter of the Regulation has also conditioned the competence, A. DE GREGORIO MERINO, «Editorial. El nuevo régimen general de condicionalidad para la protección del presupuesto de la Unión», Revista de Derecho Comunitario Europeo, 71, 2002, p. 18. Also, S. RAGONE y J.F. BARROSO MÁRQUEZ, «El giro “reactivo” de la identidad europea: condicionamiento de fondos y confianza mutua», Revista de Derecho Constitucional Europeo, n. 37, 2022. M. KÖLLING, «La condicionalidad para la protección del presupuesto de la Unión Europea: ¿una protección del estado de derecho o una garantía para los intereses financieros de la UE?», Revista de Derecho Constitucional Europeo, n. 37, 2022.
[09] From a different vision, Weiler defends that the integration process would respond to a messianic legitimacy, aimed at invoking a better future, J.H.H. WEILER, «Europe in crisis – on political messianism, legitimacy and the rule of law», Singapore Journal o Legal Studies, 2012, p. 256.
[10] For example, E. STEIN, «Lawyers, Judges and the making of a transnational Constitution», AJIL, Vol. 75, 1981. F. MANCINI, «The making of a Constitution for Europe», Common Market Law Review, 26, 1989.
[11] D. KENNEDY, «Three globalizations of law and legal thought: 1850-2000», in DAVID RUBEK y ALVARO SANTOS (eds.), The New Law and Economic Development. A Critical Appraisal, Cambridge, 2006, p. 65.
[12] See, N. MACCORMICK, «Sovereignty, Democracy, Subsidiarity», No. 25, 1994, pp. 282 and ss.
[13] C. JOERGES and F. RÖDL, «Informal politics, Formalised Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval», European Law Journal, Vol. 15, No. 1, 2009, pp. 1-19, p. 8. V.A. SCHMIDT, «Re-Envisioning the European Union: Identity, Democracy, Economy», Journal of Common Market Studies, No. 47, 2009, p. 21.
[14] A. SOMEK, «The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement», European Law Journal, Vol. 16, No. 3, 2010, p. 30.
[15] On the broad dimension of the crisis, J.F. LÓPEZ AGUILAR, op. cit., p. 110. On the political-constitutional dimension of austerity, see Part I, Contesting Austerity. A socio-legal inquiry, A. FARAHAT y X. ARZOZ (eds.), Hart, 2021.
[16] On the doctrine of the German Constitutional Court, see my work, M. AZPITARTE SÁNCHEZ, «Integración Europea y legitimidad de la jurisdicción constitucional», Revista de Derecho Comunitario Europeo, Vol.55, 2016.
[17] P. CRUZ VILLALÓN, «La identidad constitucional de los Estados miembros: dos relatos europeos”, Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid, 2013.
[18] I use the term contested concept following, W.B. GALLIE, «Essentially contested concepts», Proceedings of the Aristotelian Society, Vol. 56, 1955-56.
[19] It is questioned whether there is a common concept of the rule of law. W. SCHROEDER, The «Rule of Law As a Value in the Sense of Article 2 TEU: What Does It Mean and Imply?», in A. VON BOGDANDY, P. BOGDANOWICZ, I. CANOR, C. GRABENWARTER, M. TABOROWSKI Y M. SCHMIDT (eds.), Defending Checks and Balances in EU Member States, Springer, 2021, p. 110. But, precisely because of the nature of value, it is impossible to achieve a common concept. In this sense, as Schoreder himself points out, perhaps the most we can aspire to is a minimum content and not a homogeneity clause.
[20] On the legal concept of value, R. ALEXY, Theorie der Grundrechte, Suhrkamp, 1994, p. 125.
[21] X. ARZOZ SANTISTEBAN: «El nacimiento de un nuevo parámetro de control de la ley: el valor europeo de Estado de Derecho» in J.I. UGARTEMENDIA ECEIZABARRENA y A. SAIZ ARNAIZ (eds.), ¿Está en peligro el Estado de Derecho en la Unión Europea?, EUROPEAN INKLINGS (EUi), Instituto Vasco de Administración Pública, 2021, p. 66.
[22] P. HÄBERLE, Verfassungslehre als Kulturwissenschasft, 2ªed. Duncker&Humblot, 1998, regarding the concept of interpretation as an open process. p. 228 and ss.
[23] U. VOLKMANN, «Die Dogmatisierung des Verfassungsrechts. Uberlegungen zur veränderten Kultur juristischer Argumentation», JuristenZeitung, 20, 2020.
[24] That is why, for example, Von Bogdandy defends that the Union can only build red lines, A. VON BOGDANDY, «Towards a Tyranny of Values?», in A. VON BOGDANDY, P. BOGDANOWICZ, I. CANOR, C. GRABENWARTER, M. TABOROWSKI y M. SCHMIDT (eds.), Defending Checks and Balances in EU Member States, Springer, 2021.
[25] And here lies a problem of political theory that is especially pressing for the Union, see on this matter, N. SCICLUNA and S. AUER, «From the rule of law to the rule of rules: technocracy and the crisis of EU governance», Western European Politics, Vol. 42, No. 7, 2019.
[26] VON BOGDANDY, op. cit., p. 78, raises the problem even more seriously, because even if the Union were successful in its intervention, it would then move towards a federal State, which would cause the rejection of other Member States.
[27] M. DAWSON, «How Can EU Law Respond to Populism?», Oxford Journal of Legal Studies, 40(1), 2020.
[28] Secondly, there has been a transformation of the principles of the government system and, therefore, of institutional rebalances. We have seen a resurgence of the principle of national democracy, with state governments reinforcing their position in defining the structure of the Union. And the principle of technical independence has also been strengthened due to the preeminent place that the ECB has occupied in the day-to-day life of the economic crisis and the health crisis.
[29] A criticism of the homogenization of the problem, without the necessary graduation, F. BALAGUER CALLEJÓN, op.cit, p. 59.
[30] VON BOGDANDY, op.cit, p. 91, reject this way of working. Considers that values, within the Union, can only give rise to “red lines”, minimum limits, which cannot be tolerated.
[31] C. SCHÖNBERGER, «Identitäterä. Verfassungsidentität zwischen Widerstandsformel und Musealisierung des Grundgesetzes«, Jahrbuch des Öffentlichen Rechts der Gegenwart, vol. 63, 2015, p. 43. O. LEPSIUS, «Souveränität und Identität als Frage des Institutionen-Settings», Jahrbuch des Öffentlichen Rechts der Gegenwart, vol. 63, 2015,pp. 73, 75 and 78.
[32] P. CRUZ VILLALÓN, «Legitimidad «activa» y legitimidad «pasiva» de los Tribunales constitucionales en el espacio constitucional europeo», Teoría y Realidad Constitucional, No. 33, 2014, p. 147.
[33] I am referring to the idea developed by B. ACKERMAN, We the people. Foundations, Belknap, 1993.
