National identity versus European identity: from the acquis communautaire to the European Union’s Rule of law

by Ezio PERILLO (former Judge of the EU General Court)

The acquis is the EU identity, but not only

No longer in fashion, the principle of the acquis communautaire is still an essential part of the Union’s legal order. It encompasses the entire EU legal legacy on which this order has been formed since its creation, including the judgments of the Court. The acquis contains, above all, the five cardinal principles of the European legal order, those ruled by the Van Gend & Loos and Costa/Enel famous judgments. The autonomy, the direct effect and primacy of its law, its uniform interpretation and, finally, its direct and effective judicial protection.  It was ahead of its time in the ’60!

This arsenal of European principles, rules and jurisprudence, constitutes, nowadays, the very identity of the European Union.

Already provided by Article 3 of the Treaty of Amsterdam (1999), the acquis is at present inserted, although no longer with its concise French formula, in Article 13 TEU, which states: “the Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions“.  These same obligations are also incumbent on the Member States.  Article 2 of the last act of accession to the European Union, the Croatian one (2013), provides, along the same lines as the previous ones, that “from the date of accession, the provisions of the original Treaties and of the acts adopted by the institutions before accession [including the judgments of the Court of Justice] shall be binding on Croatia and shall apply in that State to the conditions laid down in those Treaties and in this Act”.

Therefore, in order to join and then legitimately stay in the Union, every Member State, old or new, must accept and comply with the binding nature of the acquis.

The acquis is also part of each Member State’s identity

Since its accession to the Union, each Member State has changed, treaty after treaty, its own legal profile, i.e. its constitutional identity, having unanimously assumed, in their legal order, the Treaties provisions, the principles and rules of the acquis communautaire.  Let’s consider, for instance, that national citizens are also, by law, European citizens. It follows that the national identity of each Member State is, nowadays, not only that inherent to their constitutional and political structures (see Art.4 TEU), but also, to a large extent, that deriving from their European affiliation.

Ultimately, the acquis communautaire constitutes, on the one hand, the identity of the European Union, and also, on the other hand, the identity of each Member State, although only in part.  After Lisbon, however, this famous French formula has disappeared from the Treaties provisions, even if it remains in those of the EU accession acts. I propose therefore to rename it here as the “European Rule of law” (or the “Rule of law of the European Union”).[1]

The European Rule of law

The reason of this name is quite simple. L’État de droit, das Rechtsstaat and the Rule of law, even if they are notions not exactly similar to one another, all refer to a national State dimension and not to a supranational or international dimension. Their main objectives are to guide every public authority towards a constitutional and correct exercise of their prerogatives and to prevent them from arbitrarily acting in the name of an alleged “sovereign” legal status.

Thus, when in a legal order, such as that of the European Union, its institutions have been charged, by the Masters of the Treaties, to “serve its interests, those of its citizens and those of the Member States”, this legal system must also have its own Rule of law, like any other legal order. In this perspective, what would have been called the acquis communautaire in the past, has now become the European Rule of law.

A principle or a value?

In a supranational order such as the European one, the values referred to in Article 2 TEU are not values belonging to the Union since its origin, simply because they have been “attributed” thereto, as a legal heritage, by the Masters of the Treaties.

Indeed, for the founding States of the Union, these values are irreplaceable, legal assets and guarantees too, strenuously acquired by their citizens through several, terrible wars. Values that are, today, solemnly engraved in their Constitutions or Fundamental Laws, also in those of the others Member States which joined the Union later. For these and other reasons, the Masters of the Treaties wanted the Union to be also founded on these values[2], which its institutions, like the national ones, must accept and promote (see Article 13 TEU, cited above).

That said, these universal values are not, legally speaking, the same thing as the principles of EU law, although the Masters of the Treaties use them without distinction, sometimes as values sometimes as principles (see, for instance, the second and forth whereas of the Preamble to the Treaties, or Article 21 TUE where it is stated that “ the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights …” ).

By the way, according to the first whereas of the preamble to the EU Charter, the Union is, on the one hand, “founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”, and is, on the other, “based on the principles of democracy and the rule of law”.

Therefore, values do found orders because they are fundamental legal assets that are not available to any public power, be it royal, republican, federal or European. Legal principles, instead, do ensure a legal basis to these orders, as they guide the public institutions’ actions and protect the citizens from any kind of arbitrary use of the State’s prerogatives.

But, above all, the difference between values and principles resides in how to legally control their compliance. As provided for in Article 7 TEU, breaches of the values referred to in Article 2 TEU can be determined only by the European Council, and the Council may, consequently, suspend certain of the European rights of the State concerned, including its voting rights. Therefore, the Court of Justice has no jurisdiction to review, on the merits, the legality of these decisions. Indeed, pursuant to Article 269 TFEU, the Court, in these cases, has jurisdiction solely to the extent that it shall check compliance with the procedural requirements provided for by the aforementioned Article 7 TFEU.  Ultimately, in the EU legal order, control over compliance with the founding values of the Union is a political prerogative, while supervising compliance with the EU legal principles is, needless to say, a jurisdictional remit.

Thus, in this legal frame, the ‘European Rule of law’ is, like its prior acquis communautaire, a binding principle of EU law, also for the Member States, and it is up to the Court of Justice to ensure its due and full legal control.  

National identity versus European identity: quid juris?

In its judgment of 22 February 2022, C-430/21 (Court of Appeal of Craiova, Rumania) the Court of justice ruled that if a Constitutional Court considers that an EU provision infringes its country’s national identity, it must stay the proceedings and make a preliminary reference to the Court of justice. Indeed, also in relation to article 4, §2, TUE, this Court has exclusive jurisdiction to declare an EU act invalid for non-compliance with one’s national identity. An EU act, by the way, that should be declared invalid only in the Member State concerned, in a sort of limited EU invalidity.

Still, in a National versus European identity case, the Court of Justice should be bound – I guess – by the description given by the referring Constitutional court as to the national identity at stake. The margins of appreciation become here very narrow.

Let’s then consider a different approach: in such cases, which of the two respective obligations comes first? Requiring the Union to comply with national identity or imposing to the country concerned to adhere to the EU’s identity?  

Well, could one argue that in order to claim the infringement of its own national identity, the country involved should first prove that it has fully respected EU’s identity, i.e. the European Rule of law, which has obviously priority over national law, i.e. over its internal Rule of law?  And if this is the case, shouldn’t the national jurisdiction, ruling on the dispute, disapply the internal provisions conflicting with the European Rule of law?

The answer? The answer is not blowing in the wind and can be given by the Court.


[1] In similar terms, see, Olivier Audéoud, “ L’acquis communautaire, du mythe à la pratique, in, Revue d’études comparatives Est-Ouest, 2002, n. 33-3,  pp. 67-77.

[2] Article 2 TEU so provides. “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights… 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”.

(EU LAW ANALYSIS) Temporary Protection for Ukrainians in the EU? Q and A

Professor Steve Peers, University of Essex

*updated March 2 2022 to include the Commission proposal for use of the temporary protection Directive, and guidance for applying EU external borders law.  

Among the many big developments over the last few days in response to the Russian invasion of Ukraine, there was an important potential asylum law measure – the possible use of the EU’s temporary protection Directive, a legal framework for mass influxes of people needing protection dating back to 2001 but never used.

According to the EU Council, there was ‘broad support’ for this idea among EU home affairs ministers meeting informally on February 27, and the Commission will propose doing so ‘without delay’. The Commission duly made this proposal on March 2. (I’ll update this blog post again when and if the Council adopts it). What does this mean for the hundreds of thousands – if not millions – of people now fleeing the invasion of Ukraine?

Which Member States does it apply to?

EU asylum law in principle applies to all Member States, except for the UK, Ireland and Denmark, which had an opt out from the Directive. The UK chose to opt in – although obviously this is now moot in light of Brexit. Ireland initially opted out, then opted in to the Directive in 2003. Denmark remains outside the scope of the Directive.

The parallel guidance on applying EU external borders law applies to all Member States except Ireland (because the other EU Member States that do not apply Schengen fully apply EU external borders rules in the meantime), and Schengen associates (Norway, Iceland, Switzerland and Liechtenstein). 

Note that EU Member States waived short-term visa requirements for Ukrainians back in 2017 already. This law applies to all Member States (and Schengen associates) except Ireland; and Ireland has recently waived short-term visa requirements for Ukrainians unilaterally.

Who is covered by temporary protection?

The Directive applies to a ‘mass influx’ of ‘displaced persons’. A ‘mass influx’ is defined as:

…arrival in the [EU] of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the [EU] was spontaneous or aided, for example through an evacuation programme;

‘Displaced persons’ are defined as:

…third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular:

(i) persons who have fled areas of armed conflict or endemic violence;

(ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights;

‘Article 1A of the Geneva Convention’ refers to the definition of ‘refugee’ under the UN Refugee Convention – ie a well-founded fear of persecution on grounds of race, religion, political opinion, nationality or particular social group – although note that the Directive does not necessarily apply only to those who fall within that refugee definition (‘who may fall within’). Those fleeing Ukraine can point to the ‘armed conflict’ ground of the ‘displaced persons’ definition in this Directive – although note that the list of the two groups who are covered by the Directive is not exhaustive (‘in particular’), meaning that other groups of people might meet the definition too.

Note also that the Directive only applies to those leaving ‘their country or region of origin’. This ought to cover both Ukrainian citizens and non-Ukrainians who can argue that their ‘origin’ is in Ukraine (‘origin’ is not further defined). That scope is broader than the Refugee Convention, which applies where a person is: ‘outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country’ (or, if stateless, of their country of habitual residence).

Conversely, this means that the Directive does not apply to those whose ‘origin’ is not Ukraine. This might mean that it is interpreted to exclude non-Ukrainian citizens who have moved to Ukraine in recent years. But many of them still need to flee the invasion – and hopefully their need to flee and immediate humanitarian requirements will be recognised even if they technically fall outside the scope of the Directive.  

The scope of the Commission proposal is ‘the following categories of persons displaced as of 24 February 2022 following the military invasion by Russian armed forces on that date:’ 

(a) Ukrainian nationals residing in Ukraine; 

(b) Third-country nationals or stateless persons residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin; The requirement of inability to return in safe and durable conditions to their country or region of origin shall not apply to third-country nationals or stateless persons who have been legally residing on a long-term basis in Ukraine. 

(c) family members of the persons referred to in points (a) and (b), regardless of whether the family member could return in safe and durable conditions to his or her country or region of origin.

The proposal defines family members as, ‘in so far as the family already existed in Ukraine at the time of the circumstances surrounding the mass influx’: 

(a) the spouse of a person referred to in points (a) or (b) of paragraph 1 or their unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; 

(b) the minor unmarried children of a person referred to in points (a) or (b) of paragraph 1 or of his or her spouse, without distinction as to whether they were born in or out wedlock or adopted; 

(c) other close relatives who lived together as part of the family unit at the time of the circumstances surrounding the mass influx, and who were wholly or mainly dependent on a person referred to in points (a) or (b) of paragraph 1 at the time. 

However, the guidance on applying external borders law applies to others fleeing the invasion too.  It suggests that the usual criteria for entry across the external borders could be waived for anyone fleeing the conflict, and states that: 

Member States should ensure that non-Ukrainian third country nationals, other than those covered by the scope of the Temporary Protection Directive or who have a right to stay in the Union on the basis of other grounds, transit to their countries of origin or usual residence after entry. So as to avoid situations of illegal stay, Member States are encouraged to provide – if needed – assistance for their repatriation or regularisation, as appropriate. The Frontex Standing Corps can be deployed to support these assisted departures.

How is temporary protection set up?

The Directive is just a framework for a possible temporary protection system. A temporary protection regime is not established automatically, but only after the Council (ie Member States’ home affairs ministers), acting by a qualified majority on a proposal from the Commission, agrees that there is a mass influx of displaced persons.

The Council Decision setting up temporary protection has to be based on:

(a) an examination of the situation and the scale of the movements of displaced persons;

(b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures;

(c) information received from the Member States, the Commission, UNHCR and other relevant international organisations.

The European Parliament must be informed of the decision, but does not have a vote beforehand.

The Council decision must specifythe groups of persons covered, although Member States can extend the regime to other groups displaced for the same reasons and from the same country or region of origin. But if they do so, the financial support provided for in the Directive will not apply to such groups.

Also, the Council decision must set out when temporary protection takes effect; ‘information received from Member States on their reception capacity’; and ‘information from the Commission, UNHCR and other relevant international organisations’.

How many people will it apply to?

The numbers covered by temporary protection are not necessarily unlimited. Member States must ‘indicate – in figures or in general terms – their capacity to receive’ displaced persons. The Council decision setting up temporary protection must set out these numbers. Later on Member States ‘may’ declare that they have more reception capacity. The Commission proposal does not include numbers.

If the numbers who are ‘eligible for temporary protection’ is higher than the numbers that Member States have said they can accept, ‘the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected’.

If the numbers are exceeded, then (implicitly) Ukrainians not covered by temporary protection can still make asylum applications – but one could imagine that in this scenario, Member States would struggle to manage the numbers concerned.

How long will it last?

The starting point is that temporary protection is one year long, although it can be terminated early if the Council (ie Member States’ home affairs ministers) decides to end it, on a qualified majority vote on a proposal from the Commission, if the Council has established that conditions in the country of origin have improved sufficiently so ‘as to permit the safe and durable return’ of the beneficiaries.

It is automatically extended for further periods of six months to a two-year maximum. A further extension for up to a third year is possible, again on a qualified majority vote on a proposal from the Commission.

What rights do people covered by temporary protection have?

Member States must issue residence permits for the duration of temporary protection. For those not yet on the territory, they must issue visas to ensure that they can enter. If a person remains on or seeks to enter the territory of another Member State without authorization during the temporary protection period, Member States must take them back. 

Member States must permit temporary protection beneficiaries to take up employment or self-employment, but they may give priority to EU citizens and EEA nationals, as well as legally resident third-country nationals receiving unemployment benefit. The ‘general law’ regarding remuneration, social security, and other conditions of employment in each Member State applies.

As for social welfare and housing, Member States must ‘ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing’, and ‘shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care’ – which ‘shall include at least emergency care and essential treatment of illness’. There is also an obligation to ‘provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.’

For education, Member States must give ‘access to the education system under the same conditions as nationals of the host Member State’ for those under 18, but may confine this to the state education system. Admission of adults to the general education system is optional.

Member States have to authorize entry of family members, ‘in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx’. But this only applies to ‘core’ family members:

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

Admission of a broader group of family members is only optional, ‘taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place’:

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.

Note that the Directive clarifies that Member States may adopt more favourable rules for persons covered by temporary protection.

Finally, there is a right to ‘mount a legal challenge’ to exclusion from temporary protection or family reunion. CJEU case law on other EU migration law makes clear that this means access to the courts. 

How does temporary protection relate to asylum applications?

Temporary protection ‘shall not prejudge’ refugee recognition under the Refugee Convention. It will be possible to apply for asylum ‘at any time’.* Any asylum application not processed by the end of the temporary protection period has to be processed afterwards.

Moreover, Member States can deter applications for asylum by providing that a person cannot hold temporary protection status simultaneously with the status of asylum-seeker (the reason that this would deter applications is that asylum-seekers usually have fewer rights than temporary protection beneficiaries would have). But if an application for asylum or other protection status fails, a Member State must continue to extend temporary protection status to the beneficiary.

Member States may exclude a person from the benefit of temporary protection on grounds identical to the Refugee Convention exclusion clauses (ie war crimes/crimes against humanity, serious non-political crimes, or acts against the principles and purposes of the UN), or the Refugee Convention clauses on exclusion from non-refoulement (ie ‘there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State’). Exclusions ‘shall be based solely on the personal conduct of the person concerned’, and must be ‘based on the principle of proportionality’.

What happens once temporary protection expires?

Once the temporary protection regime ends, the ‘general laws’ on protection and on foreigners apply, ‘without prejudice’ to certain specific provisions in the Directive. Arguably the reference to the ‘general laws’ must now be understood as a reference not only to the relevant national legislation, but also to EU rules on asylum and the EU’s Returns Directive, which were adopted after the temporary protection Directive.

For those applying for asylum, that means that the definitions of refugee and subsidiary protection in the EU’s qualification Directive will apply, along with the procedural rules in the procedures Directive and the rules on the status of asylum seekers in the reception conditions directive. The EU’s Dublin rules will determine in which Member State an application is made, although the temporary protection Directive includes some (unclear) additional rules on that issue.  

It’s also possible that Ukrainians could obtain another form of legal status, under the national or EU laws on legal migration (EU law has partly harmonised national laws on this issue).

Those who do not obtain legal status via an immigration or asylum route will in principle have to leave. The specific rules in the temporary protection Directive concerning return first of all provide for rules on voluntary return. Many (but not all) Ukrainians would likely wish to return voluntarily anyway, if the situation improves; but it’s anyone’s guess if it will do.

There is an express possibility of enforced return of persons after the regime has ended, but such return must be ‘conducted with due respect for human dignity’, and Member States ‘shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases’. They must also ‘take the necessary measures concerning’ residence status of former beneficiaries of temporary protection ‘who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted’. Specifically, those persons ‘shall not be expelled so long as that situation continues.’ Finally on the issue of return, Member States have discretion over whether to let children complete their school year.


It remains to be seen if Member States agree to the Commission proposal to establish temporary protection, and if so what the details are – in particular, how many people are covered by it. When the Directive was adopted back in 2001, there was concern among asylum specialists that it might undercut the Refugee Convention, in particular providing a possibility for Member States to set up a system with a lower standard of protection instead of considering asylum applications.

In practice, the EU has since adopted two phases of asylum laws, and concern has turned to how they are applied in practice – in particular as regards pushbacks from the territory and collaboration with dubious non-EU countries like Libya, to keep asylum-seekers from reaching the EU. In contrast to this hostility, a temporary protection system may be welcome – although it would be in stark contrast with the often unpleasant and unjustifiable treatment of others fleeing war or persecution.

Photo credit: Leonhard Lenz, via Wikimedia Commons

*Corrected on Feb 28 2022 to drop the statement that ‘Member States may delay consideration of an application for Convention refugee status until the temporary protection has ended’. In fact the Directive does not explicitly provide for this as such – although as noted, if a Member State chooses not to permit the status of asylum seeker concurrently with that of temporary protection, in practice this is likely to deter asylum applications as long as temporary protection applies. 

(EP Research Service) The Commission’s Rule of Law Report and the EU Monitoring and Enforcement of art. 2 TEU Values.

by Prof. Laurent PECH; Senior Research Fellow, Petra BÁRD, Associate professor, Eötvös Loránd University, Faculty of Law; Researcher, CEU Department of Legal Studies and CEU Democracy Institute; Fernand Braudel Fellow, European University Institute



Rule of law backsliding represents a major, existential challenge for the EU as it structurally endangers the foundations of the EU as a Union based on the rule of law and fundamentally threatens the functioning of the EU’s interconnected legal order. To address the EU’s worsening rule of law crisis and more broadly, the unprecedented and spreading attempts by some national authorities to organise the systemic undermining of EU’s shared foundational values, the European Parliament proposed a new EU mechanism in 2016 to better monitor and enforce the values of democracy, the rule of law and fundamental rights (DRF mechanism).

Instead of embracing the European Parliament’s proposal, the Commission designed its own new annual European Rule of Law Mechanism. The European Rule of Law Mechanism provides an annual process for dialogue on the back of an Annual Rule of Law Report (ARoLR) which the Commission has presented as a new preventive tool. Launched for the first time in 2020, the ARoLR takes the form of twenty-seven country chapters and an umbrella report presenting an overview of the situation of the rule of law situation across the EU. To date, the ARoLR has focused on four “pillars”: (i) national justice systems; (ii) national anti-corruption frameworks; (iii) media pluralism; and (iv) other institutional checks and balances.

The Commission’s ARoLR differs in many respects from the European Parliament’s DRF proposal. Most importantly, the ARoLR foresees lesser involvement for other EU institutions and does not provide for any formal involvement of external experts. It is also narrower in the sense that its scope is more limited as it does not directly cover democracy and fundamental rights; does not (yet) include country specific recommendations and does not automatically lead to the adoption of specific Council conclusions and a Parliament resolution.

This study offers a critical assessment of the Commission’s ARoLR within the broader context of the EU’s DRF architecture, and formulates recommendations in order to address the ARoLR’s negative features identified by the present authors: the creation of false expectations; the use of euphemistic language; the lack of context and connected failure to see the wood for the trees; the denial of (autocratic) reality and resulting category errors; the emphasis on “dialogue no matter what”; and finally, the opportunity costs and possible displacement effect the ARoLR has had on enforcement. This is not to say that a number of positive features cannot be identified. The ARoLR can indeed be commended for offering a compelling definition of the rule of law; a clear outline of why the rule of law matters; a broadly suitable selection of relevant “pillars” and main sources of information; and increasing the political saliency of the rule of law.


This study’s main recommendations summarised below aim to remedy the ARoLR’s identified gaps and shortcomings in the short to medium term. On the long term, it is recommended that renewed consideration is given to

(i) the extension of the ARoLR’s scope so that all Article 2 TEU values are subject to annual monitoring given that these values must be viewed as interconnected, interdependent and mutually reinforcing;

(ii) the extensive involvement of an expert panel and

(iii) the adoption of automatic legal and/or financial actions when country specific recommendations (which the third edition of the ARoLR is expected to contain for the first time) are not fully and promptly addressed.

Considering the Commission’s continuing opposition to the adoption of a mechanism akin to the Parliament’s proposed DRF mechanism, this study has prioritised the elaboration of recommendations which can be actioned in the short to medium term with the view of improving the effectiveness of the ARoLR without fundamentally changing its current scope and structure.

Recommendations on methodology:

•        A better preparation and publication cycle should be organised and in particular, the same time window should be used each year so that planning can be done ahead of the timeline’s official publication in respect of the next edition of the ARoLR;

•        The Commission should promptly publish the input documents they receive from national governments so as to enable experts and civil society groups to fact check them as soon as possible;

•        The Commission should be mindful of deliberate attempts to deceive it by those engaged in the systemic dismantlement of checks and balances and their proxies, such as government-organised non-governmental organisations (GONGOs). In this respect, it is recommended that the Commission provides clearer details than currently regarding country visits and interviews; selection of stakeholders, information selection, as well as greater protection for government critiques, especially those based in countries subject to an ongoing Article 7 procedure;

•        The Commission should elaborate on the indicators taken into account for assessing the rule of law situation in each of the Member States and should aim to undertake a comprehensive assessment of the same elements based on the same indicators in all country chapters;

•        The Commission should seek to take better account of the data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;

•        The involvement of an expert panel/network of external experts and/or the EU Fundamental Rights Agency should be considered if only at first to merely provide feedback to the Commission and help inter alia with methodological issues.

Recommendations on scope and structure:

•        As long as the ARoLR is not extended to cover other foundational values enshrined in Article 2 TEU, the Commission should at a minimum better link the ARoLR with the values of democracy and fundamental rights and connected EU action plans and other strategies, considering the interconnected and mutual reinforcing nature of Article 2 TEU values. Scrutiny over judicial independence for example could extend to the evaluation of fair trial rights, access to justice, equality before the law in national case law;

•        New civic space pillar: As long as the ARoLR does not fully encompass all the Article 2 TEU values, the Commission should also consider adopting a fifth pillar dedicated to monitoring national developments relating to civic space considering the crucial importance of civil society when it comes to maintaining and protecting a democratic and pluralist society as well as a proper functioning of public life;

•        New Article 7 section: The insertion of a new Article 7 TEU state of play section in the umbrella report is recommended so as to better highlight in a transversal way the evolution of the situation in the countries which have already been identified as being on an autocratisation pattern following the activation of one of the procedures laid down in Article 7 TEU;

•     New EU chapter: In addition to the country chapters, the publication of a new EU chapter is  recommended with the drafting of this report to be done either by the EU Fundamental Rights Agency and/or a new panel or network of academic experts.

Recommendations regarding effectiveness and follow up:

•        The ARoLR should better outline countries’ rule of law adherence over a sufficient long period of time and highlight cross-cutting trends at EU level. This could be done inter alia by taking into account and summarise key data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;

•        In order to better identify threats and violations of the rule of law and make non-compliance with court judgments a recurrent, more salient and costly issue for relevant national authorities, in addition to the forthcoming new country specific recommendations, the ARoLR ought to include data and information regarding non-compliance (or bad faith implementation) with CJEU orders and judgments but also national and ECtHR orders and rulings which concern any issue relating to any of the ARoLR’s pillars;

•        To guarantee better follow up, the ARoLR (including the country-specific recommendations) should be more directly aligned with other rule of law tools and procedures, such as infringement procedures and the Rule of Law Conditionality Regulation 2020/2092, so that remedial action could be more swiftly, consistently and effectively organised in situations where national authorities ignore or violate relevant recommendations;

•        The adoption of urgent reports ought to be considered so as to allow for a prompt and formalised answer from the Commission in a situation where national rule of law related developments are indicative of a serious danger; if state action results in the violation of individual rights on a mass scale or if state action amounts to irreversible or systemic threat to or violation of the rule of law;

In addition to or alternatively to the suggested adoption of urgent reports, the Parliament should consider requesting the Commission to present a mid-year assessment of the state of compliance (or non-compliance) with the ARoLR’s country-specific recommendations, with the Commission to be also requested to specify how non-compliance will be dealt with.


VERFASSUNGSBLOG : A cautious green light for technology-driven mass surveillance

The Advocate General’s Opinion on the PNR Directive

by Christian Thönnes

Yesterday, on 27 January 2022, Advocate General (AG) Pitruzzella published his Opinion (“OP”) in the Court of Justice of the European Union’s (CJEU) preliminary ruling procedure C-817/19. The questions in this case pertain to Directive (EU) 2016/681 of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (in short: PNR Directive) and its compatibility with EU primary law.

In his Opinion (which, besides the Press Release (“PR”), was only available in French at the time of writing), the AG, while criticizing the PNR Directive’s overbroad data retention period and its lack of clarity and precision in certain points, generally considers the PNR Directive to be “compatible with the fundamental rights to respect for private life and to the protection of personal data” (PR). His arguments are not convincing.

Certainly, much more can and will be written about this case in general and the Opinion in particular. This entry can only shine a light on some of the AG’s major arguments. In so doing, it shall point out why, in my opinion, the CJEU would do well not to follow the AG’s recommendations. Instead, I believe the PNR Directive is incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights (CFR). Consequently, it ought to be invalidated.

What the AG has to say about the PNR Directive

The PNR Directive obliges EU Member States to require air carriers to transmit a set of data for each passenger to national security authorities, where they are subjected to automated processing against pre-existing databases (Art. 6 § 3 letter a) and “pre-determined criteria” (Art. 6 § 3 letter b), which contain (allegedly) suspicious flight behaviors (such as a mismatch between luggage and length of stay and destination, see the Commission’s Evaluation Report, point 5.1, in order to identify potential perpetrators of serious crimes or acts of terrorism (a more detailed description of the Directive’s workings can be found in paras 9-18 of the AG’s Opinion or here).

The AG points to certain (limited) problems with the Directive’s wording. Firstly, he contends that point 12 of Annex I, enabling “General Remarks” to be included in PNR data sets, fail to “satisfy the conditions of clarity and precision laid down by the Charter” (PR, also para 150 OP). He also considers the Directive’s five-year-retention period for PNR data excessive and proposes that this period be limited to cases where “a connection is established, on the basis of objective criteria, between those data and the fight against terrorism or serious crime” (PR, also para 245 OP). In addition, he provides clarifying criteria for the relevancy of databases under Art. 6 § 3 letter a (para 219 OP), regarding the applicability of the GDPR (para 53 OP) as well as collisions with the Schengen Borders Code (para 283 OP). He also demands that, due to their lack of transparency, (at least some) “machine-learning artificial intelligence systems” (PR), should not be used for pre-determined criteria (para 228 OP).

The most resounding message of his Opinion, however, is that the PNR Directive’s mass retention and processing regime is “relevant, adequate and not excessive in relation to the objectives pursued” (PR) and thus compatible with Articles 7 and 8 CFR. He therefore recommends to let it stand, albeit with some interpretative limitations (para 254 OP).

Incompatibility with Digital Rights Ireland and its successors

The AG’s reasoning in support of the PNR Directive’s proportionality relies on his central finding that “the Court’s case-law on data retention and access in the electronic communications sector is not transposable to the system laid down by the PNR Directive” (PR). He is referring to decisions like Digital Rights IrelandTele2 Sverige and Quadrature du Net, in which the CJEU had laid down strict limits on governments’ power to collect and process telecommunications data. Notably, it posited that “the fight against serious crime […] and terrorism […] cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight” (Tele2 Sverige, para 103; also Digital Rights Ireland, para 51). Instead, the CJEU required that in order to be considered “limited to what is strictly necessary […] the retention of data must continue nonetheless to meet objective criteria, that establish a connection between the data to be retained and the objective pursued” (Tele2 Sverige, para 110).

Evidently, the PNR Directive would clash with these criteria – were they found to be applicable. The collection and automated processing of PNR data is completely indiscriminate. Given Member States’ universal extension to EU domestic flights, it affects all European flight passengers, regardless of their personal histories and independently of a potential increased domestic threat situation (this is proposed as a possible criterion in Quadrature du Net, para 168). The use of pre-determined criteria is not, like the comparison against existing databases, aimed at recognizing known suspects, but at conjuring up new suspicions (see EU Commission PNR Directive Proposal, SEC(2011) 132, p. 12). Also, taking a flight is a perfectly ordinary form of human behavior. There is no empirically demonstrated connection to the perpetration of serious crimes or acts of terrorism (in para 203, the AG presupposes such a “lien objectif” without providing any evidence exceeding anecdotal intuitions about terrorism and human trafficking) and the PNR Directive, given its broad catalogue of targeted crimes, is not limited to dangers caused by air traffic. What behavior will be targeted next? Visiting the museum? Going to a rock concert? Belgium, for example, has already expanded the PNR Directive’s scope to international trains, busses and ferries (Doc. parl., Chambre, 20152016, DOC 54-2069/001, p.7).

Good reasons for applicability

It thus is quite clear: Should Digital Rights Ireland and its successors apply, the PNR Directive is in trouble. Now, why wouldn’t their criteria be transposable? The AG’s arguments mainly turn on a perceived difference in sensitivity of PNR data, compared to telecommunications meta-data. The latter, the AG explains, contain intimate information of users’ private lives (para 195, 196), and almost uncontrollable in their scope and processing because everyone uses telecommunication (paras 196, 198). Moreover, because they are used for communication, telecommunications data, unlike PNR data, have an intrinsic connection to fundamental democratic freedoms (para 197). PNR data, on the other hand, he opines, are limited to a delineated life domain and narrower target groups because fewer people use planes than telecommunication (paras 196, 198).

Under closer examination, this comparison falls apart. Firstly, PNR data contain very sensitive information, too. As the CJEU has pointed out in his Opinion 1/15 regarding the once-envisaged EU-Canada PNR Agreement, “taken as a whole, the data may, inter alia, reveal a complete travel itinerary, travel habits, relationships existing between air passengers and the financial situation of air passengers, their dietary habits or state of health” (para 128). Unlike the AG (see para 195 in his Opinion), I can find no remarks in Opinion 1/15 that would relegate PNR data to a diminished place compared to telecommunications data. But secondly, and more importantly, the AG fails to consider other factors weighing on the severity of the PNR Directive’s data processing when compared against the processing of Directive 2006/24/EC and its siblings: The method and breadth of processing and the locus of storage.

Only a small minority of telecommunication datasets, upon government requests in specific cases (see Articles 4 and 8 of Directive 2006/24/EC), underwent closer scrutiny, while the vast majority remained untouched. Under the PNR Directive, however, all passengers, without exception, are subjected to automated processing. In so doing, the comparison against pre-determined criteria, as the AG points out himself (para 228 OP), can be seen as inviting Member States to use self-learning algorithms to establish suspicious movement patterns. Other EU law statutes like Art. 22 GDPR or Art. 11 of Directive 2016/618, as well as comparable decisions by national constitutional courts (BVerfG, Beschluss des Ersten Senats vom 10. November 2020 – 1 BvR 3214/15 -, para 109) are inspired by an understanding that such automated processing methods greatly increase the severity of respective interferences with fundamental rights. Moreover, while telecommunications data were stored on telecommunication service providers’ servers (to whom users had entrusted these data), PNR data are all transferred from air carriers to government entities and then stored there.

Hence, there are good reasons to assume that the data processing at hand causes even more severe interferences with Articles 7 and 8 CFR than Directive 2006/24/EC did. It thus follows, that the case law of Digital Rights Ireland should apply a fortiori.

An inaccurate conception of automated algorithmic profiling and base rate fallacy

There are other problems with the AG’s reasoning; completely untangling all of them would exceed this space. Broadly speaking, however, the AG seems to underestimate the intrinsic pitfalls of unleashing predictive self-learning algorithms on datapools like these. The AG claims that the PNR Directive contains sufficient safeguards against false-positives and discriminatory results (para 176 OP).

Firstly, it is unclear what these safeguards are supposed to be. The Directive does not enunciate clear standards for human review. Secondly, even if there were more specific safeguards, it is hard to see how they could remedy the Directive’s central inefficiency. That inefficiency does not reside in the text, it’s in the math – and it’s called ‘base rate fallacy’. The Directive forces law enforcement to look for the needle in a haystack. Even if their algorithms were extremely accurate, false-positives would most likely exceed true-positives. Statistics provided by Member States showing extremely high false-positive rates support this observation. The Opinion barely even discusses false-positives as a problem (only in an aside in para 226 OP). Also, it is unclear how the antidiscrimination principle of Art. 6 § 4 is supposed to work. While the algorithms in question may be programmed in way to not process explicit data points on race, religion, health etc., indirect discrimination is a well-established problem of antidiscrimination law. Both humans and algorithms may just use the next-best proxy trait. (see for example Tischbirek, Artificial Intelligence and Discrimination).

Now, the AG attempts to circumvent these problems by reading the PNR Directive in a way that prohibits the use of self-learning algorithms (para 228 OP). But that interpretation, which is vaguely based on some “système de garanties“ (para 228 OP), is both implausible – it lacks textual support and the pile of PNR data is amassed precisely to create a use case for AI at EU borders – and insufficient to alleviate this surveillance tool’s inherent statistical inefficiency.

This cursory analysis sheds light on some of the AG’s Opinion’s shortcomings. It thus follows that the CJEU should deviate from Pitruzzella’s recommendations. The PNR Directive, due to the severity of its effects and its inherent inefficiency in fulfilling its stated purpose, produces disproportionate interferences with Articles 7 and 8 CFR. It ought to be invalidated.

Between 2017 and 2021, the author worked for the German NGO “Gesellschaft für Freiheitsrechte”, among other things, on a similar case (C-148/20 to C-150/20) directed against the PNR Directive.





  • The past 15 years have not been kind to two great icons of European integration: the common currency with its accompanying passport-free Schengen area and area of freedom, security and justice (AFSJ).
  • Much like the eurozone between 2008 and 2015, the EU’s area of freedom, security and justice has gone through a series of shocks over the past seven years, whether they relate to migration, asylum policies, security concerns or the rule of law. But, unlike the EU’s single currency area, there have been limited efforts to fix the AFSJ’s multiple shortcomings.
  • To date, the EU has dealt with each crisis separately. This was reasonable while each problem was manageable on its own and had little or no spill-over to other parts of the EU project. But this is no longer a sustainable strategy. All the AFSJ crises are related and they all need fixing quickly. The EU should find inspiration in how it dealt with the twin financial and eurozone crises.
  • So far, Schengen and the AFSJ have weathered a migration crisis, several terrorist attacks, and a pandemic because EU countries have mostly been happy to co-operate with each other and trusted each other’s systems.
  • But it is becoming clear that countries have very different ideas about who should be allowed in and how; what an independent judiciary is; and what should be the relationship between EU law and national constitutions.
  • The EU does not need to come up with flashy new plans to reform Schengen every two or three years. Instead, EU leaders should focus on the underlying problem: the waning trust between member-states and the impact that this lack of trust on co-operation.
  • The most important consequence of the bloc’s gradual loss of mutual trust may be the gradual exclusion of some EU countries from the Union’s common legal space. That space includes not only police and judicial co-operation, but also the single market.
  • The EU will not solve its trust problem through new laws or court rulings, because the problem stems from political, rather than legal, differences. Instead, the EU should focus on rethinking the way the AFSJ works and clarifying the compromises it involves. One way forward could be to draw inspiration from the European Semester and the EU’s post-pandemic recovery fund.
  • The EU should come up with a ‘European Justice Semester’, which would help to rebuild trust in three ways. First, it would establish a permanent and clearer link between policies related to Schengen, like the free movement of people, and policies related to the wider area of AFSJ like the independence of the judiciary. Second, it would make it harder for countries to backslide. And third, it would allow the EU to anticipate, prepare and deal with issues of mutual trust faster and better.
  • The European Council could hold a special summit on the future of Schengen and the AFSJ. The result could be a baseline plan which includes a monitoring mechanism based on the eurozone’s European Semester and the post-pandemic recovery fund.
  • Such plan would include a set of pre-agreed standards that all member-states should abide by. These standards should be drawn up by the Council of Ministers and the European Commission, approved by the European Parliament and endorsed by the European Council.
  • The Commission could use these standards to monitor trends, for example of judicial reforms, and issue clear guidelines. Member-states would need to present national plans roughly every two years explaining how they would comply with those guidelines.
  • National AFSJ plans should be approved by the Council of Ministers. The Commission would then review those plans and come up with country recommendations, which should be approved by the Council of Ministers. Member-states should commit to follow those recommendations.
  • EU governments and the European Commission could set up dedicated teams to ensure regular communication between Brussels and EU capitals; and an early warning mechanism to spot problems before they become unmanageable, similar to the six-month review devised for the disbursement of the recovery fund.
  • EU member-states should agree on a warning procedure that would apply to countries which have been found to repeatedly deviate from the standards. Such a procedure could end with a suspension of EU funds or with a temporary ‘freezing’ of the recalcitrant country’s participation in certain EU laws, like the European Arrest Warrant.
  • To work, a European Justice Semester cannot be a purely procedural plan, driven solely by the EU institutions. Such a plan would need the highest-level political backing and broad public support every step of the way. A European Justice Semester should focus on performance, solidarity and accountability.


During the first decade of the 21st century, the prospects for European integration looked bright. This was particularly true for two of the icons of integration: the common currency, and the passport-free Schengen area. The 2010s were not kind to either; so far, the 2020s have not been kind to anything at all. As a result of the COVID-19 pandemic, countries have put borders back up. The politics of migration remain toxic and EU countries have not been able to agree on common policies. Despite a number of shocking terrorist attacks, the likelihood of falling victim to terrorism in Europe is extremely small. Even so, terrorism and crime are amongst the top ten concerns of European citizens, according to the European Commission, and feature regularly in electoral campaigns across the EU.1 Meanwhile, the EU’s reliance on a common legal space, in which shared rules are interpreted predictably by independent courts, has been challenged by assaults on the independence of the judiciary in several member-states. Furthermore, the Union’s post-pandemic recovery fund may be susceptible to corruption and, if the money is misspent, anti-EU forces will profit.

Much like the eurozone between 2008 and 2015, the EU’s area of freedom, security and justice has gone through a series of shocks over the past seven years, whether they relate to migration, asylum policies, security concerns or the rule of law. But, unlike the EU’s single currency area, there have been limited efforts to fix the AFSJ’s multiple shortcomings. Instead, both EU governments and the EU institutions have chosen to follow a piecemeal strategy, treating each blow to the Union’s AFSJ as an isolated incident. This has made sense until now, as it is an easier sell to voters to separate migration issues from, say, the rule of law. But it is not a sustainable strategy anymore. 

EU leaders can no longer pretend that the EU’s common borderless legal area is doing well.

All of the AFSJ’s crises are related. The reason why EU countries have close police and judicial co-operation links and, at least on paper, a common set of rules governing asylum and migration, is that they need to reduce the risks that would otherwise arise in a Union without internal border checks. Schengen and the AFSJ form the bloc’s common borderless legal area. A shock to Schengen has an immediate ripple effect on the AFSJ. 

EU leaders and the EU institutions can no longer pretend that the EU’s common borderless legal area is doing well. The EU needs a new plan to make it more resilient. This plan must include regular performance checks and a set of rights and obligations that finally simplifies the link between Schengen and the AFSJ. Such a plan would need a serious commitment from both EU governments and the Brussels institutions, but would not require changing the treaties. 

This policy brief looks back at the AFSJ’s difficult decade. It argues that the EU needs to clarify the relationship between Schengen and the bloc’s common legal space, and draws lessons from the eurozone crisis, calling for the EU to set up a ‘European Justice Semester’ to protect the AFSJ. 

This is the last paper of a series on the future of EU justice and home affairs. It examines some ideas that have been discussed at meetings of the Amato group, a reflection group of experts on justice and home affairs policies, run by the Centre for European Reform, chaired by former Italian Prime Minister Giuliano Amato and supported by the Open Society European Policy Institute (OSEPI). It has been meeting since 2014. This paper tries to capture the main take-aways of the group’s work over the past seven years. 


EU justice and home affairs (JHA) comprises a set of policies intended to help EU countries manage the side-effects of closer economic integration and the abolition of border controls. As member-states gradually lifted checks on people, goods, capital and services, both law-abiding Europeans and criminals became more mobile. The free movement of capital made laundering money easier. The development of the internal market also meant that more people from different nationalities were getting married, divorced, having children, signing or ending contracts, buying and selling property and, in general, entering into legal transactions in other countries. Meanwhile, both asylum-seekers and other sorts of migrants were arriving in Europe in growing numbers, and looking to settle.2 

The 1999 Amsterdam treaty responded to these developments by saying that one of the EU’s main objectives should be “to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”3

Spurred by a general optimism about European integration and the pressing need to improve police and judicial co-operation in Europe following terrorist attacks in Madrid and London in 2004 and 2005, the Lisbon treaty, which entered into force in December 2009, gave new powers to the EU institutions. The Commission was given the power to propose laws on a wide range of topics such as migration, asylum, criminal law and police co-operation. The Council of Ministers and the European Parliament could each amend, reject or approve those proposals, which, once accepted, would become EU laws and fall under the supervision of the European Court of Justice (ECJ).

From 1999 to the mid-2010s, JHA remained a relatively obscure part of EU policy which accordingly attracted very little public interest. In hindsight, it all began to turn sour in 2014.

Faced with increasing arrivals of leaky boats overcrowded with people fleeing bloody conflicts in Syria and Libya, the Italian government of then-prime minister Enrico Letta launched ‘Mare Nostrum’, a search and rescue operation, in 2013. Other EU countries then accused Italy of encouraging people to risk their lives crossing to Europe by sea in unsafe ships operated by people smugglers, and the EU convinced Letta to replace ‘Mare Nostrum’ with the much smaller ‘Operation Triton’ in 2014. Triton had no mandate to search for and rescue distressed boats proactively. In April 2015, around 700 people died in a shipwreck off the coast of the Italian island of Lampedusa. In September of that year, the image of three-year-old Syrian boy Alan Kurdi lying lifeless on a Turkish beach made headlines around the world. Public attention turned to Europe’s perceived inability to deal with migrants and asylum-seekers, who were often conflated.

The migrant shipwreck tragedy in Lampedusa was a turning point for the future of the EU project.

The tragedy in Lampedusa was a turning point for the EU: the Union has been at the centre of a heated political debate about borders, human rights and Europe’s economy ever since. National politicians began to frame migration debates as a zero-sum choice between open borders for all and ‘fortress Europe’. EU governments and the Brussels institutions eventually fell into the trap of adopting this dichotomy, creating the most serious border crisis in the EU’s history. 

In 2015 and early 2016, over a million people crossed into Europe as the conflict in Syria intensified and Libya’s failed state became a safe haven for smugglers. Quickly, it became apparent that member-states did not see eye-to-eye. Some felt they were bearing a disproportionate burden in protecting Schengen’s external borders; some felt they were taking in more than their fair share of asylum-seekers; and some did not want to accept would-be refugees at all. The bitter political debates that ensued deepened the fault lines between front-line and destination member-states. The disagreements about quotas, solidarity and shared responsibility also entrenched another dividing line that had been developing for a while, this time between Central and Western Europe over respect for the rule of law and fundamental rights. 

While Hungary’s Viktor Orbán had been toying with the idea of “illiberal democracy” since 2014, the EU’s rule of law stand-off began in earnest four years ago.4 In December 2017, the Commission launched a disciplinary proceeding against Poland under Article 7 of the Lisbon treaty, for breaching EU values. Article 7 proceedings can end with the suspension of the offending state’s voting rights in the Council of Ministers. In October 2018, the European Parliament initiated proceedings against Hungary for the same reason.5 But neither of the two disciplinary actions has got very far: they require unanimous agreement in the Council, minus the offending state. Even if 25 states agreed to sanction Poland or Hungary, one of that pair would still be able to block action against the other. Meanwhile, both the European Commission and the European Parliament have become worried about democratic backsliding in other countries, too: in Slovenia, the government of Orbán’s ally, Janez Janša, has been clamping down on media freedom and NGOs. In Romania and Bulgaria, fears over corruption and respect for fundamental rights are piling up. 

Twenty twenty-one may have been the bumpiest year yet for the rule of law in Europe. In December 2020, the EU passed a law (the ‘conditionality mechanism’, in EU jargon) that would stop payments from the EU’s budget and recovery fund to countries that do not respect the rule of law. The Commission has not yet triggered this mechanism because, to overcome Warsaw and Budapest’s threat to veto the bloc’s recovery fund, EU governments promised them that the law would not be used until the ECJ had had the time to review it. But, to put pressure on Poland and Hungary, the Commission has instead delayed the release of recovery fund money (which is separate from the general EU budget) to both countries, over concerns about widespread corruption and a captured judiciary. Over the past 12 months, the ECJ has ruled repeatedly that the Polish government has breached EU law with its judicial reforms – and Warsaw has, also repeatedly, refused to comply with the Luxembourg court’s rulings.6 The stand-off came to a head in October when the Polish Constitutional Tribunal ruled that parts of the EU treaties were incompatible with the Polish constitution, sparking fears of a ‘Polexit’.

The Polish Constitutional Tribunal tried to piggyback on a relatively new trend: the rise of the eurosceptic courts. The Romanian and German constitutional courts, the Danish Supreme Court and the French Conseil d’État have in recent years all questioned the validity of EU law or the legitimacy of ECJ rulings.7 Spain’s otherwise reliably pro-EU judiciary has been debating the usefulness of the European Arrest Warrant (EAW) since a judge in Germany refused the extradition of the fugitive Catalan independence movement leader Carles Puigdemont.8 And Slovenia only nominated its required two delegated prosecutors to the European Public Prosecutor’s Office (EPPO, a body with powers to prosecute crimes related to the EU budget) in November 2021, six months after the office started operations. Ljubljana’s two nominees are not even confirmed yet – with Janša clarifying that they are just “temporary appointments”.9 

EU justice and home affairs, once the preserve of academics and officials, has become a political battleground.

COVID-19 has further complicated matters. While most headlines rightly focus on the human and economic costs of the pandemic, the spread of the virus has created much collateral damage – including to Schengen and the EU’s single market. At the beginning of the pandemic, member-states restored, or extended, passport checks;10 and the EU imposed an entry ban on non-EU citizens. Both were not entirely unreasonable measures but were decided and applied in a hurry and rather incoherently across the EU.11 As a result, member-states grew wary of each other – questioning the ability of other European governments to deal with the crisis. More worryingly, many EU countries introduced serious and unco-ordinated restrictions on the free movement of European citizens – or banned it altogether. While the EU has to some extent managed to harmonise member-states’ criteria for when EU citizens are allowed to travel (notably through the introduction of an EU-wide COVID-19 vaccination passport), many restrictions on movement remain in place. At the time of writing, in January 2022, several member-states have re-instated lockdowns and/or other restrictions on movement within and across their borders. Border controls persist in many EU countries. 

EU justice and home affairs, once the preserve of a handful of lawyers, academics and officials, has become a political battleground. Migration, security (including health security) and EU values are amongst the most contentious issues of EU policy – and ones which can win or lose elections at home. Collectively, they have created new rifts within the EU or aggravated pre-existing fault lines. The EU and its member-states tolerated Orbán’s antics until the 2015-2016 migration crisis exposed a new and important rift between Eastern and Western member-states.12 The crisis also mirrored the divisions that became apparent during the eurozone crisis between 2010 and 2012: frugal, more economically conservative member-states like Germany, Sweden and the Netherlands are also the EU’s biggest recipients of both labour migrants and asylum-seekers, while their southern, more indebted and fiscally dovish counterparts like Italy, Greece and Spain are the countries where migrants and asylum-seekers first arrive. 

The row over the rule of law has intensified the split between the original EU-15 and countries which joined the EU after 2004. While security remains less divisive, as most EU countries agree that they should co-operate to combat crime and terrorism, the topic has become entangled in broader discussions over the EU’s borders, Europe’s values and political posturing over the place of religion in Europe. The European Commission even has a dedicated Commissioner for ‘promoting our European way of life’ whose portfolio includes security.

To date, the EU has dealt with each of these crises separately. This was reasonable while each problem was manageable on its own and had little or no spill-over to other parts of the EU project. But there are clear links between the EU’s migration, security and rule of law woes. 


There is a reason why all of the AFSJ’s crises seem to be happening at the same time, or in very close succession: they are connected. It is naïve to think that sizeable migration flows will not affect the way that Europeans think about security; and it is plain wrong to believe that migration, border and security issues will not spill over into other parts of EU policy-making, such as the recovery fund and the rule of law. The only reason why the EU has an area of freedom, security and justice in the first place is because of Schengen. In the words of a senior EU official, “without Schengen, laws governing criminal and civil co-operation in Europe, as well as police and intelligence collaboration, would be nice-to-have, not a must-have.” 

There is a reason why all AFSJ’s crises are happening at the same time: they are connected.

To date, Schengen has managed to weather a migration crisis, several terrorist attacks and a pandemic because of two things: it involves the sharing of benefits and burdens; and it presupposes a high degree of mutual trust between its members.13 But that trust has eroded in recent years. And both the EU institutions and the member-states seem to have forgotten, or outright ignored, the compromises that are required to make Schengen work.

To benefit from the abolition of border controls between member-states, governments had to introduce so-called compensatory measures, like boosting controls on the EU’s external borders, exchanging law enforcement information through common databases and improving police and judicial co-operation between themselves.14 All these measures are based on the assumption that, by following common rules and standards, EU countries’ border, police and judicial systems will eventually become so similar that further checks will become unnecessary. This is the starting point of the AFSJ, which is based on the same principles as the original Schengen treaty (an inter-governmental treaty signed in 1985 and later expanded and transformed into EU law), but goes beyond it by including mechanisms for judicial co-operation in several areas of law, like criminal, civil and commercial law. These mechanisms include the EAW, which makes it easier to extradite criminals across the EU, and the European Investigation Order (EIO), which allows one country to carry out criminal investigations on behalf of another. Mutual recognition (in this case of each other’s goods and services) is also the modus operandi of the EU’s single market. Not coincidentally, both Schengen and the single market grew in parallel in the 1990s. 

Neither Schengen nor the EU’s single market can work without trust. While the single market seems unscathed for now (with the exception of Brexit and a continuing row over lower quality products making their way eastwards), things are not looking up for the AFSJ. It is becoming clear that – despite the AFSJ’s large body of common standards – countries have very different ideas about who should be allowed in and how; what an independent judiciary is; and what the relationship between EU law and national constitutions should be.

The EU does not need to come up with flashy new plans to reform Schengen every two or three years, as it has since the migration crisis. Instead, EU leaders should focus on the underlying problem: the waning trust between member-states and the impact this lack of trust has on the area of freedom, security and justice. 


Every EU crisis over the past ten years has been to some degree the result of diminishing trust between its member-states. Each of those crises has in turn fed suspicions and made countries more wary of each other. Not all the crises originate in the EU’s deficient AFSJ arrangements. But all of them have had an impact on the bloc’s area of freedom, security and justice. Take the eurozone crisis. Greece’s near-exit from the euro in 2015 unexpectedly shaped Europe’s initial response to the refugee crisis.15 In 2016, with Athens seemingly unable to control the massive flows of people trying to cross to Europe by sea, talk of a mini-Schengen, which would not include Greece, grew louder in the corridors of Brussels. Having once been accused of almost pushing Greece out of the single currency, then German Chancellor Angela Merkel was “determined not to let Greece fall again” in the words of one of her senior aides. To end the crisis without having to push Greece out of Schengen, Merkel struck a surprise deal with Turkey to return rejected asylum-seekers from Greece. 

Beyond the obvious blow to the European project, the most important consequence of the bloc’s gradual loss of mutual trust is that, eventually, it may lead to the exclusion of some EU countries from the Union’s common legal space. That space includes police and judicial co-operation but also the single market: goods, people and, to an extent, services and capital move freely in the EU because citizens and companies alike rely on EU-wide standards, including court rulings. If the judiciary gets captured in a member-state, both civil and criminal law co-operation will become more difficult; businesses will be wary of setting up shop in a country where they may be subject to arbitrary laws; and people’s personal decisions, on issues such as buying a house, having kids or changing jobs, will be affected too. 

The EU will not restore trust by laws or court rulings alone, because this is a political problem.

Currently, there is no formal mechanism in place to expel a country from the AFSJ. But there are two ways this can happen. The first is through a de facto exclusion of a member-state from EU judicial co-operation schemes. This is already happening when, for example, national courts stop the transfer of asylum-seekers from Germany and elsewhere back to Greece or Italy because of abysmal reception conditions. Another example is when courts in several EU countries refuse to extradite wanted people to a member-state where the courts are not perceived as independent, or where the government is distrusted by other member-states. After the UK triggered Article 50 of the Lisbon treaty to start its exit from the EU, several judges across the Union refused to extradite people there, as it was unclear whether EU law would apply to those suspected or convicted of crimes during and after Brexit. As the situation of the judiciary in Poland, Hungary and Romania has deteriorated, various European courts have refused extradition requests, as they considered that suspects’ fundamental rights might not be respected in those countries. While the ECJ has, for now, stopped blanket prohibitions on extradition (as opposed to decisions in individual cases) because of declining judicial standards, this may change in the future, especially if Poland continues openly to defy ECJ rulings.16 In any case, the Luxembourg court already allows member-states to suspend extradition if they have evidence that the rights of the suspect may not be respected – something which should not be too difficult to argue in view of the ECJ’s latest rulings on the independence of the Polish judiciary and the Commission’s own assessment of the situation in Poland, Hungary and Romania. 

The second way to suspend an EU country’s membership of the bloc’s single legal area is more tricky, but not impossible. In a recent paper for the Centre for European Political Studies (CEPS), a think-tank, respected Hungarian EU law professor Petra Bárd and former Polish Ombudsman Adam Bodnar argue that the Polish Constitutional Tribunal’s October ruling should trigger a formal suspension of all AFSJ laws based on mutual recognition in Poland.17 The authors suggest that this could be done either by the EU institutions or by the ECJ. There is no article in the treaties allowing for such a suspension. But there is no article in the treaties which explicitly rules it out, either – in fact, the European Parliament has suggested that the three EU institutions (Commission, Parliament and Council) could take such a decision, if they found ‘systemic deficiencies’ in a given country after conducting regular joint reviews of the state of the rule of law in each EU member-state.18 The ECJ could, on paper, issue a ruling after concluding one of the many cases it is now examining, declaring the suspension of one or more of these laws in certain member-states. But recent case law on the suspension of European Arrest Warrants in Poland indicates that this is unlikely to happen. 

The ECJ’s main problem is that, if it ruled that one or more EU laws were not applicable to an EU country because its courts lacked independence, this would make it very difficult for that country’s judges to seek the ECJ’s help when dealing with matters of EU law. All national courts are allowed to submit questions to the ECJ if they think there may be a contradiction between EU and national rules; or if they are looking to clarify obscure points of EU law. A ruling to exclude a country from mutual recognition laws would automatically imply that national judges would not be allowed to continue business as usual, including asking for preliminary rulings.19 This would have a ripple effect on the bloc: because the ECJ would not be able to interpret questions of EU law in one country, it would not be able to ensure the uniform application of EU law across all member-states.  

Suspending parts of the EU acquis would be difficult and may have unintended effects. For example, suspending membership of Schengen if a country cannot guarantee that its judiciary is fully independent would be a more effective stick than the Article 7 procedure and would ensure that Schengen rights and obligations are clear to all members. But such a move, even if temporary, would be tricky: one of the benefits of Schengen is that it makes it easier for European citizens to move around the Union, in turn boosting support for the EU project. 

The EU will not solve its trust problem by laws or court rulings alone, because this is a problem that stems from political, rather than legal, differences. Rebuilding trust will require a higher level of accountability over how AFSJ policies are enacted at a national level. The problem is not necessarily the result of bad faith. There is, more simply, a general lack of understanding of the provisions of the Union’s AFSJ and a lack of ambition to clarify them. Eventually, this could become a very big problem. If Europeans do not find a way to restore a shared understanding of the rules, trust that they will be enacted proportionately and that violations will be penalised, the EU’s fault lines will deepen and governments will further question the logic of open borders and security co-operation. Citizens may start to wonder what the point of the EU is, after all.  

In the future, the EU should focus on rethinking the way the AFSJ works and clarifying the compromises it involves. This is no easy task. But EU leaders and the EU institutions could find inspiration in one of the ways the Union dealt with the twin financial and eurozone crises in the first part of the last decade.


In 2008, the world economy experienced a steep downturn when parts of the American and European financial sectors collapsed. In the EU, some member-states fared worse than others. In Greece, Portugal, Italy and Spain, the crisis exacerbated long-standing structural problems and added sky-rocketing public debt to create a perfect storm. Investors lost confidence in the creditworthiness of several of the EU’s member-states.20 As a result, many people lost trust in the eurozone altogether: the EU’s ambitious common currency came close to collapsing. 

The EU institutions should to do ‘whatever it takes’ to keep the AFSJ afloat.

In an attempt to lower public debt and to regain the confidence of financial markets, member-states imposed large cuts in public spending, which took a heavy economic toll on Southern European countries. The crisis forced leaders to confront the trade-offs inherent in the single currency – between shared rules, costs and benefits – and eventually, with a lot of help from the European Central Bank, they managed to stabilise the currency.

There are parallels between Schengen, and its accompanying AFSJ, and the eurozone. Both are extremely ambitious projects in the absence of an overarching federal state. Both feature consistently amongst the most popular aspects of the EU (a single currency and passport-free travel). And both have proved to be unprepared to absorb shocks (be it a global economic crisis, a pandemic or a sudden surge in migration); and are plagued by repeated failures of member-states to abide by the rules (on deficit and debt limits, border controls, or judicial independence). But while the euro crisis instilled a sense of doom in Europe’s political elites and forced them into action, this sense of urgency has so far been missing from the EU’s AFSJ. 

It is now time for the EU institutions to do ‘whatever it takes’ to keep the AFSJ afloat. A good starting point would be to set up a European Justice Semester for the EU’s area of freedom, security and justice. 

The financial and sovereign debt crises exposed the failures of the EU’s monetary and macroeconomic policies. To fix them, the Union changed fiscal rules and passed new laws governing the co-ordination of fiscal and macroeconomic policies. The EU also set up more stringent oversight mechanisms, for example the common supervision of Europe’s largest banks. To streamline the regular co-ordination of Europe’s economic policy, the EU created the European Semester. 

Starting in November each year, the European Commission, together with the Council of Ministers, scrutinise economic trends and individual member-states’ policies, and recommend areas for reform. EU countries then submit national plans to Brussels, explaining how they are going to follow the Commission’s recommendations. The recommendations cover a wide range of policies, from employment to childcare and civil justice. The Commission assesses the national plans, and issues specific recommendations to each of the EU-27 – and additional recommendations for eurozone members. The Council of Ministers then discusses the recommendations, which have to be endorsed by EU leaders before their adoption. In case of non-compliance, the EU can require additional monitoring, impose fines and even freeze EU funding to the offending country – though that has not yet happened. A decision to fine a country is deemed to be approved unless a qualified majority of member-states disagrees with it (a procedure known as reverse qualified majority voting). Countries which have signed the so-called Fiscal Compact, a treaty on fiscal stability, have also agreed that other decisions, such as deeming that one country has breached the rules, can also be taken by reverse qualified majority voting. 

The European Semester also has a role in the disbursement of the post-pandemic recovery fund to EU countries. To qualify for recovery money, EU countries need to send their national spending plans to the European Commission, which scrutinises them and decides whether or not to grant funding. To perform this analysis, the Commission looks at many indicators, including the European Semester’s country recommendations. If the national plans do not comply with the rules of the recovery fund, European Semester recommendations, and the rule of law provisions of the conditionality mechanism, the Commission may delay the release of funds or stop it altogether – as is currently the case with Hungary and Poland. 

A review mechanism called ‘European Justice Semester’ could combine elements of the European Semester and the recovery fund.

Of course, neither the EU’s economy nor the eurozone are perfect, nor have the new rules magically fixed all their problems. But, over time, EU leaders and the EU institutions realised that they could not rely on trust and outdated laws alone to keep the economy and the single currency going – they needed a renewed push to make all countries accountable for their actions. The European Semester is a small building block in the eurozone’s efforts to stabilise the currency. The EU’s post-pandemic recovery fund is taking accountability a step further by putting proper money behind a reform monitoring system. Countries are required to show how they are using the recovery money to reach the targets and milestones set by the Commission every six months. They are also required to prove that the money is properly audited and that they have made all the necessary reforms for the money to have a meaningful impact on society and the economy. In stark contrast with previous funds, if a country fails this test, the Commission and the Council of Ministers are allowed to stop payments until the errant member-state complies with the rules. 

A review mechanism, combining elements of the European Semester and the recovery fund, – a ‘European Justice Semester’ – could serve as a useful tool for the EU’s area of freedom, security and justice, for three reasons.  

First, it would help to establish a permanent and clearer link between policies related to Schengen – like the free movement of people or the sharing of police and intelligence information (which most countries like); and policies related to the wider area of freedom, security and justice – like the independence of the judiciary or common asylum and migration rules (which some countries do not like very much). Second, it would help solve what can be called the ‘Copenhagen paradox’, whereby democratic backsliding in some member-states means that, were they to apply to join the EU now, they would not meet the so-called Copenhagen criteria for accession on human rights and the rule of law. A regular overview of justice and home affairs policies would make it harder for countries to backslide. And third, it would allow the EU to anticipate, prepare and deal with issues of mutual trust better, before they become a Poland-sized problem and without having to resort to the ineffective Article 7 procedure for suspending voting rights in the Council. 

The legal basis for a European Justice Semester for the EU’s area of freedom, security and justice would be Article 70 of the Lisbon treaty. Article 70 allows the Commission and member-states to conduct a review of policies related to the area of freedom, security and justice, “in particular in order to facilitate full application of the principle of mutual recognition.” The treaty also says that both the European and national parliaments should be kept abreast of the reviews.

A European Justice Semester for the EU’s AFSJ should follow at least seven steps:

1. The EU should begin by defining the key elements of the area of freedom, security and justice and, more crucially, the rights and obligations attached to it. Member-states would need to revise the 1999 concept of the AFSJ to bring it line with current realities. This could include, for example, making it clear that Schengen is an integral part of the AFSJ and cannot be detached from other elements, like compliance with ECJ rulings or agreements on migration policies. The hard reality is that countries cannot have the benefits of passport-free travel without recognising the authority of the ECJ or applying migration laws that they themselves have approved in Brussels. 

EU leaders used to come up with multi-annual plans (‘programmes’) to set out the direction EU justice and home affairs should take. Over time, EU governments found these plans too onerous, so they quietly dropped them. Over the past seven years, there have been no policy guidelines on EU JHA beyond two Commission plans heavily focused on internal security matters (the 2015 European Security Agenda and the 2019 European Security Union). A renewed effort to make the AFSJ work, now and in the future, should come from EU leaders, not the European Commission. The European Council could hold a special summit on the future of JHA, as it did twice in the ten years after the birth of the AFSJ. 

At the summit, EU countries could debate, and decide, what they want to do with police and judicial co-operation, the Schengen area and the Union’s migration policies. This should be a frank and open conversation that could be informed by the conclusions of the Conference on the Future of Europe – an EU-wide public consultation process that is due to conclude in the spring of 2022. The result should be a baseline plan for the Union’s area of freedom, security and justice which should include a monitoring mechanism based on the eurozone’s European Semester and the post-pandemic recovery fund. This plan would need to be agreed by all EU member-states by consensus. If a broad agreement cannot be found, and some countries decide not to take part, the European Council may want to resort to an inter-governmental agreement, as it has done in the past on eurozone issues. This would be unideal, though – EU governments and the EU institutions, in particular the European Council, should try to get all member-states on board. Once the plan is in place, decisions should be taken either by qualified majority voting or by reverse qualified majority voting. 

JHA policies should reflect the experience of the economic side, where setting down too-specific targets became a headache.

2. Building on the European Council guidelines, the Council of Ministers, together with the European Commission, could set up a broad system of standards that all members of the club should abide by, with a clear warning that these standards are linked, and that failure to abide by some could lead to a range of penalties. Both the new concept and the list of standards should be approved by the European Parliament and endorsed by the European Council, to ensure broad political support and citizen engagement and to diminish the risk of non-compliance. 

3. On the basis of the list of standards, the European Commission could propose a review process similar to the European Semester. The Commission could monitor trends, for example on judicial reforms, and set clear guidelines every, say, 18 or 24 months. The Commission could use these guidelines to flag issues that it considers to be in violation of EU rules (for example, the Polish reform of the judiciary that discriminates between male and female judges) and to suggest ways to fix them. Once the Commission issues its guidelines, member-states would need to present their plans on a range of JHA policies (civil justice, criminal justice, the state of the judiciary, intelligence gathering, police practices and the status of asylum reception facilities, for example), which would then be discussed by the Council of Ministers and approved by the Commission. This is the type of peer review that Article 70 refers to. 

4. The Commission would then review the national plans and come up with country recommendations, broken up by chapters (civil justice, criminal justice, border controls, fundamental rights and so on). The recommendations would need to be approved by the Council of Ministers by qualified majority voting (without the vote of the country in question).

5. Member-states would commit to implementing the recommendations during the rest of the policy cycle. This step would be different from the European Semester in two ways: first, unlike with the Semester, EU countries would have to explicitly say that they would follow the recommendations each time; second, JHA policies are not budgets requiring annual approval, so a European Justice Semester experiment could run for longer periods, of, say, 18-24 months. 

6. National governments and the European Commission could set up dedicated teams to ensure regular communication between the EU institutions and EU capitals. An early warning mechanism to spot problems before they become unmanageable could also be part of the plan. The mechanism could be similar to the six-month review devised for the disbursement of the recovery fund. 

7. The most difficult part of the exercise would be to agree on, and enforce, sanctions. JHA policies should reflect the experience of the economic side, where setting down too-specific targets has become a major headache for policy-makers. The current debate over the suspended Stability and Growth Pact (SGP) is a case in point: the SGP fixes targets for government deficits and debt. But the rules have proven to be unhelpful in recessions. EU countries froze the Pact when the COVID-19 pandemic hit and are starting to consider reforms to the fiscal rules and when to reactivate them. JHA policy-makers should avoid such hard targets, which would do little to mend wounds or make the AFSJ more resilient to crises. 

As a first step, EU member-states should agree on a warning procedure that would apply to countries which have been found to deviate from the standards repeatedly. The Commission and the Council of Ministers, acting by reverse qualified majority voting, could, for example, decide to apply the procedure to a country which had failed to address recommendations twice in a row (that would be two cycles of 18-24 months). The country could respond by amending its actions or face the suspension of EU funds, also agreed by the Council by reverse qualified majority voting. 

Ultimately, EU countries will have to decide whether they want to impose more serious consequences on countries which repeatedly fail to abide by the rules. Radical solutions, like suspending parts of EU law for recalcitrant members, may be tempting but will be difficult to apply in practice and might backfire. 

A more workable idea would be to ‘freeze’ the application of specific laws, like the EAW or EIO. To be effective in discouraging governments from behaving badly, such a freeze should be swiftly agreed upon by reverse qualified majority voting if a country persists in breaching EU rules for a long time; or if the behaviour is serious enough to put the whole AFSJ at risk. To target unruly governments without punishing citizens, any suspension of certain parts of the acquis should never amount to a total exclusion of one member-state from the EU’s common legal area: all national courts should be able to resort to the ECJ when they need to; and no EU citizen should lose the right of effective judicial protection at the EU level as a result of their government’s actions. 

This roadmap would build on existing EU initiatives like the rule of law mechanism (a dialogue between the EU institutions, national governments and civil society about the state of the rule of law in the member-states) and the Schengen evaluation process (a peer review of the way countries apply Schengen laws in their territory, which the Commission has recently proposed to expand). It could scrap existing but inefficient initiatives like the justice scoreboard, by streamlining the oversight of the judiciary across member-states while still taking into account different legal traditions.21 It would also include more recent developments like rule of law conditionality. 

If countries do not accept that membership of Schengen brings both rights and obligations, the project may fail.

To work, a European Justice Semester cannot be a purely procedural plan, driven solely by the EU institutions. Such a plan would need the highest political backing every step of the way, and this will not be easy. The one lesson Europe has learnt from the SGP problems is that no-one can resolve an ambitious political challenge, like the euro, with a non-political solution. Any plan to build back trust in the EU’s area of freedom, security and justice should ideally include all member-states. It would only be a distant second best if it was restricted to a handful of member-states. Although once up and running a European Justice Semester could bypass blocking minorities, its basis would need a general consensus on the direction that the EU wants to take when it comes to its area of freedom, security and justice.

A European Justice Semester would need broad public support. The EU’s response to the eurozone crisis may have ultimately helped to avert the demise of the single currency, but it was deeply unpopular in many member-states on account of the pain caused by austerity and economic dogmatism. While some EU leaders remain stubbornly fond of fiscal measures, the pandemic has made their case weaker: the recovery fund has opened the door for a new way to help troubled countries while making them accountable for their actions – by making the fund performance-based. As a result, both Southern and Northern governments (and their voters) have been – touch wood – fairly cheerful about it, as it has something for every-one. A European Justice Semester would need to focus on performance, solidarity and accountability if it is to enjoy broad support across the EU. 


Some EU governments complain that the EU they joined was about passport-free travel, a budding common currency and the world’s largest single market. The contract they signed said nothing about same-sex marriages, judicial reform or women’s rights. This argument may be illiberal but is not entirely untrue: Europe has changed drastically over the past 20 years. The problem with this line of thought is that it fails to grasp that governments and institutions must and will adapt to a changing society. 

So far, the EU’s area of freedom, security and justice has failed to keep pace with a changing world: for the most part, the AFSJ remains stuck at the beginning of the century, when all EU countries seemed to be happy to increase police and judicial co-operation and did not contemplate border closures or democratic backsliding. This, in turn, has increasingly made the AFSJ unable to deal with a succession of crises, each of which has made EU countries less trusting of each other. EU leaders must understand that if countries do not accept that being part of Schengen brings both rights and obligations, the project may fail – or, at the very least, become smaller.


 1: European Commission, ‘Standard Eurobarometer 95 – Spring 2021’, September 2021.
2: Sophia Besch, Ian Bond and Camino Mortera-Martínez, ´Plugging in the British: Completing the circuit´, CER policy brief, June 22nd 2018.
3: Article 2 Treaty on European Union, 1997. The Amsterdam treaty was signed in 1997 but only entered into force in 1999.
4: Viktor Orbán, Speech at the 25th Bálványos Free Summer University, July 26th 2014. 
5: Both the Commission and the European Parliament can trigger Article 7 when they consider that there is a clear risk that a member-state may breach one or more of the EU´s founding values. These are listed in Article 2 of the Lisbon Treaty and are: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities among others. Once the proceeding is launched, it is up to the Council of Ministers to impose sanctions.
6: After coming to power in 2015, Law and Justice and its coalition partners launched a major overhaul of Poland’s judiciary. First, the government packed the Constitutional Court with friendly judges; second, the government revamped the judiciary’s governing body, the National Judiciary Council, and changed how both ordinary courts and the Supreme Court functioned. The reform also lowered the retirement age of judges, which allowed the government to force out magistrates seen as hostile to it and replace them with younger, pro-government judges. Further reforms introduced disciplinary procedures that could be used against judges who wanted to apply certain EU laws, or submit preliminary questions to the European Court of Justice  – an important feature of the EU’s legal system. 
7: In December 2016, the Danish Supreme Court ruled that EU principles deriving from ECJ rulings should not be applicable in Denmark, as they do not derive from the EU treaties. In May 2020, the German Constitutional Court ruled that the ECJ had overstepped its power when it ruled that the European Central Bank’s public sector purchase programme (PSPP) was legal. In April 2021, the French Conseil d’État (France’s highest administrative court) ruled that French intelligence services could breach EU laws protecting privacy because the EU does not have equivalent laws protecting citizens’ safety. In June 2021, the Romanian Constitutional Court said that the Romanian constitution should always have primacy over EU law; and that an ECJ ruling saying that Romania’s recent judicial reform was against EU law was not enforceable in Romania. 
8: Camino Mortera-Martínez, ´Catch me if you can: The European Arrest Warrant and the end of mutual trust´, CER insight, April 1st 2019.
9: Wester van Gaal: ‘Slovenia finally appoints ‘temporary’ EPPO prosecutors’, EU Observer, November 19th 2021.
10: Some member-states, like Sweden, introduced border controls in 2015 following the EU’s migration crisis and have not lifted them since. 
11: Camino Mortera-Martínez: ‘Will the coronavirus pandemic deliver a coup de grâce to Schengen?’, CER bulletin article, September 20th 2020. 
12: Hugo Brady, ‘Openness versus helplessness: Europe’s 2015-2017 border crisis’, Groupe d’études géopolitiques, June 28th 2021. 
13: Raoul Ueberecken, ‘Schengen reloaded’, CER policy brief, November 11th 2019.  
14: Ueberecken, ‘Schengen reloaded’.
15: Agata Gostyńska-Jakubowska and Camino Mortera-Martínez: ‘Thomas Cromwell or the executioner’s axe? Options for a Grexit’, CER insight, July 10th 2015.
16: See, for example, the following ECJ cases: joined Cases C-404/15 and C-659/15, Aranyosi and Căldăraru; case C‑216/18, LM; and joined cases C‑354/20 and C‑412/20, L and P. The Dutch government is pushing for a blanket ban on extradition to Poland in an ongoing case before the ECJ – C-562/21 Openbaar Ministerie.
17: Petra Bárd and Adam Bodnar: ‘The end of an era: The Polish Constitutional Court’s judgment on the primacy of EU law and its effects on mutual trust’, CEPS, October 25th 2021.
18: Committee on civil liberties, justice and home affairs: ‘Report on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights’, European Parliament, 2020/2072(INL), September 29th 2020.
19: Lukas Märtin: ‘Das Damoklesschwert über der europäischen Rechtsordnung: Vom europäischen Haftbefehl und der Gefahr der Verrechtlichung politischer Konflikte’, Verfassungsblog, December 1st 2021.
20: Marcin Szczepanski, ‘A decade on from the crisis: Main responses and remaining challenges’, European Parliamentary Research Service, October 17th 2019.
21: The justice scoreboard is a Commission-led review of the performance of national judiciaries. To do this, the Commission decides on a set of indicators, often not comparable, across member states and assesses them against a set of pre-decided criteria. Member-states are often reluctant to provide information to the Commission and regularly argue that the scoreboard does not take into account different legal traditions across the EU. 

VERFASSUNGSBLOG : Time to Rewrite the EU Directive on Combating Terrorism

by Martin Scheinin and Tarik Gherbaoui

The adoption of EU Directive 2017/541 on combating terrorism in March 2017 has profoundly changed the landscape of European counter-terrorism law. The primary aim of this Directive was to further harmonise the legal framework under which terrorist offences are prosecuted across EU Member States by establishing minimum rules and standards. However, the adverse consequences for the rule of law and human rights have been overlooked from the very outset by the EU institutions. Now, five years after its adoption, it is time for a thorough revision.

A Rushed Adoption Process

The adoption process of the Directive was characterised by long periods of inertia interrupted by phases of panic triggered by external developments. In fact, the European Commission introduced its proposal for the Directive, which builds upon the pre-Lisbon Framework Decision (2002/475/JHA) adopted in the aftermath of 9/11, less than three weeks after the terrorist attacks in Paris in November 2015. Later on, its rushed and opaque finalisation was a political response to the flow of European foreign fighters to the armed conflict in Syria and Iraq. Even though the transnational nature of the foreign fighter phenomenon arguably warrants a pan-European response, from the very outset academics and civil society organisations raised fundamental concerns about the Directive’s potentially adverse rule of law and human rights implications.

As there was no human rights impact assessment during the rushed adoption process, in deviation from both the European Agenda on Security and the Better Regulation Agenda, the Directive ultimately came to include a clause providing for a five-year review. On 18 November 2021, the European Commission submitted a report to the European Parliament and the Council on the implementation of the Directive that assesses the added value of the Directive. The report also claims to address ‘the impact of the Directive on fundamental rights and freedoms, including on non-discrimination, the rule of law, and the level of protection and assistance provided to victims of terrorism’. Such impact assessment is amply warranted and arguably already overdue.

Human Rights Concerns Regarding the Implementation of the Directive

The Commission’s recent report provides a seemingly positive yet largely unsubstantiated assessment of the impact of the Directive. The report finds inter alia that the Directive is ‘overall highly relevant’ and ‘overall internally coherent’, and that it ‘achieved its objectives to a satisfactory extent’ and ‘generated added value’. The Commission’s report claims that ‘while the Directive has had an impact on fundamental rights and freedoms, the limitations largely meet the requirements of necessity and proportionality’. The report also asserts that ‘overall, most stakeholders consulted for the external study did not consider the implementation of the Directive to be problematic from a fundamental rights perspective’. At closer examination, such as the one conducted by the first author of this blog post in his recently approved PhD thesis, these assessments may be too positive.

One of these stakeholders was the EU Fundamental Rights Agency (FRA) which had submitted its own contribution to the Commission as part of the legally required impact assessment of the Directive. The FRA report contains a fairly detailed but primarily empirical rather than legal assessment of the Directive’s human rights implications based on extensive fieldwork, including interviews with experts and practitioners, in seven EU Member States (Belgium, Germany, Greece, Spain, France, Hungary and Sweden). The Commission’s report takes note of the findings of the FRA report but blatantly fails to engage with them. As member of the FRA Scientific Committee that reviews draft versions of FRA reports and publications, and having served as one of the Committee’s two rapporteurs in the matter, the second author of this blog post is well aware of the fact that the Scientific Committee would have wanted the FRA to complement the empirically oriented FRA report with more extensive critical legal analysis of the human rights compatibility of the Directive itself.

The Directive has three key features that have adverse ramifications on the rule of law and human rights: (1) the presence of an overly capacious definition of terrorism that manifestly deviates from UN-level definitions of terrorism (e.g. Security Council Resolution 1566 or the 1999 Terrorism Financing Convention) and from the Council of Europe Convention on the Prevention of Terrorism, (2) the criminalisation of many preparatory acts that may be remote from intrinsically harmful conduct, and (3) the existence of ancillary offences that are also accumulable among each other. While monitoring the implementation of the Directive, the Commission has assessed these features individually but has failed to address how the interplay between these key features exacerbates the adverse human rights implications. For example, there might be pertinent reasons to criminalise ‘travelling abroad for a terrorist purpose’ as a terrorist offence. However, the ‘terrorist purpose’, which constitutes the entire mens rea of this particular offence, is tainted by an overly broad definition of terrorism that also fits poorly with acts committed in situations of armed conflict. For European countries, the three main international legal instruments concerning the foreign (terrorist) fighter phenomenon – UN Security Council Resolution 2178, the Additional Protocol to the Council of Europe Convention on Prevention of Terrorism, and the EU Directive discussed here – all seek to address the same conduct but are mutually incompatible as to whether acts committed in the course of engaging in an armed conflict will be within the scope of application of the instrument. Because of the nebulous definitions contained in the Directive, it is unsurprising that the Commission’s report flags that ‘several national authorities and judges reported difficulties in proving terrorist intent’.

In this matter the Commission’s report fails to address in an adequate fashion the legal uncertainty clouding Recital 37 of the Preamble of the Directive. This provision contains an exclusion clause stipulating that the Directive ‘does not govern the activities of armed forces during periods of armed conflict’. In recent years, EU Member States have predominantly used counter-terrorism law to address the activities of foreign (terrorist) fighters, individuals who have been active in the context of an armed conflict but may or may not have committed actual acts of terrorism. The result has been a further conflation between counter-terrorism law and the laws of war, generally to the detriment of the latter. Taking stock of the Directive’s implementation, and a reform of the Directive itself, would be a perfect moment to provide the necessary clarifications to guide prosecutors and judges at the domestic level. Currently prosecutions related to violent acts committed in the course of an armed conflict abroad may often result in acquittal, simply because the prosecutor’s case rests on specific provisions of the Directive and their national transposition, without paying attention to Recital 37 which then is invoked by the defence to challenge the applicability of terrorism charges in respect of conduct that took place as part of an armed conflict.

The Fragmented Transposition and Implementation of the Directive

Due to these human rights concerns and the political sensitivity of countering terrorism, it is hardly surprising that the implementation of the Directive has been rather troublesome until now. The FRA report affirms that the Directive contains loose definitions that reduce ‘legal clarity’ and result in ‘diverging interpretations of the offences across the EU, as well as conflicting jurisprudence within individual Member States, and reduce the foreseeability of what behaviour is criminalised and under what offence’.

Earlier, in September 2020, the European Commission had released its own report on the transposition of the Directive which made clear that transposition has proved to be particularly challenging regarding Article 3, which requires EU Member states to criminalise certain conduct as terrorist offences and essentially contains the EU definition of terrorism, and regarding Article 9, which contains the offence of travelling abroad for terrorist purposes. As these two provisions have both been indispensable elements of the EU’s legal response to terrorism in recent years, the Commission is concerned that their incorrect transposition risks undermining the uniformity of EU counter-terrorism law. Yet, instead of seeking to address the fundamental concerns that evidently exist among lawmakers and policymakers across numerous EU Member States and in fact point to major flaws in the Directive itself, the Commission decided to use its enforcement powers and has opened infringement procedures against 22 Member States. As Ireland and Denmark decided to opt out of the Directive, this means that infringement procedures have been started against 22 of the 25 Member States that are required to implement the Directive.

While such infringement procedures might help to clarify certain points of law, especially were they to result in a determination by the CJEU, it is high time to have a transparent and constructive legal and political discussion about the flaws of the EU Directive itself now that March 2022 marks five years since its adoption. We understand that the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) will meet in February or March to discuss the Commission’s report on the implementation and added value of the Directive. That would be an excellent occasion to take a critical look at the several legal flaws of the Directive as a reason for its so far marginal ‘added value’, instead of following the rather self-congratulatory approach of the Commission’s report which elliptically concludes that the Directive ‘has functioned and largely achieved its objectives in the way that was expected’.

VERFASSUNGSBLOG : 1460 Days Later: Rule of Law in Poland R.I.P. (Part I and II) Laurent Pech, Patryk Wachowiec Mi Jan 2020

SEE : Pech, Laurent; Wachowiec, Patryk: 1460 Days Later: Rule of Law in Poland R.I.P. (Part II), VerfBlog, 2020/1/15,

On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland (for our previous 2-part post assessing the situation as of 13 January 2019 see here).

During this time, Poland has become the first EU Member State:

  • to be threatened with the payment of a penalty payment of at least €100,000 per day should it continue to ignore an interim order adopted by the ECJ in July 2017;
  • to be subject to the exceptional procedure laid down in Article 7(1) TEU in December 2017;
  • to have seen its newly “redesigned” National Council of the Judiciary suspended from the European Networks of Councils for the Judiciary for its lack of independence in August 2018;
  • to have seen its self-described “judicial reforms” provisionally suspended by the Court of Justice via two interim orders in October and December 2018;
  • to have been found by the Court of Justice to have failed to fulfil its Treaty obligations under the second subparagraph of Article 19(1) TEU not once but twice in June and November 2019;
  • to have been referred to the Court of Justice by the Commission for making it possible to subject ordinary court judges to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 TFEU to request preliminary rulings from the Court of Justice.

As if to outdo itself when it comes to annihilating judicial independence, Poland’s ruling party has rushed an unprecedented piece of legislation last month. This bill “raises the question of whether Poland wants to remain in the EU” by forcing non-compliance with EU rule of law requirements and strengthening an arbitrary disciplinary regime which has already enabled a multitude of kangaroo disciplinary proceedings against any judge at any point in time for as long as needed from the point of view of the ruling party.

As recently and accurately observed, “no member state in the history of the EU has ever gone as far in subjugating its courts to executive control as the current Polish government. The Polish case has become a test whether it is possible to create a Soviet-style justice system in an EU member state; a system where the control of courts, prosecutors and judges lies with the executive and a single party”.

This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019. The most noteworthy one is the Court of Justice’s two infringements rulings which have found Poland to have violated the principles of the irremovability of judges and judicial independence and the Court of Justice’s first preliminary ruling regarding the so-called “Disciplinary Chamber” of Poland’s Supreme Court. The latter ruling has proved particularly impactful as it has directly led a not-yet-captured chamber of Poland’s Supreme Court to find the Disciplinary Chamber not to constitute a court within the meaning of EU and Polish Law. These two rulings have led in turn Polish authorities to put forward what may be described as a “de facto Polexit bill”.

This means that the warning addressed to the new President of the European Commission last month by multiple NGOs and scholars remains more valid than ever: “The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.”

It is time for European and national actors to WAKE UP and realise we may soon reach a tipping point, with the EU’s interconnected legal ecosystem facing a medium-term risk of collapse due to the premeditated and ongoing “destruction of the independence of the judiciary” we are witnessing in Poland, a process which seems to be inspiring an increasing number of national governments with exhibit A being Orbán’s Hungary.

1. Going M.I.A. in 2019: The Council

Before outlining the Court of Justice’s decisive contribution in 2019, one may note the Council’s failure to organise any Article 7(1) TEU hearing in respect of Poland since it held one in December 2018. One should not understand the lack of any Article 7(1) hearing as meaning that the Commission’s Article 7(1) recommendations have been met. Indeed, not a single one of them has been fully implemented by Polish authorities. In fact, the situation is worse than ever, which is why the Commission had no choice but to conclude in February 2019 that due to “the cumulative effect of the recent changes affecting the judiciary”, which “are limiting its independence” and “infringing upon the separation of powers”, the executive and legislative powers can now “interfere throughout the entire structure and output of the justice system”.

You have read this correctly: Poland’s executive and legislative powers, de facto controlled by Poland’s de facto Great Leader, can now interfere at will with the functioning and outputs of Polish courts (one may note in passing that the Commission’s diagnosis confirms the ill-advised nature of the so-called Celmer test devised by the ECJ as we noted last year). This interference is now happening openly, through disciplinary charges or administrative measures, such as early dismissals from secondment or temporary suspension by captured presidents of courts, but also more indirectly by putting pressure on judges not to adjudicate in a certain way whenever the interests of the ruling party demand it.

What has the Council done to address the situation? Not much or rather, as little as possible. Two explanations may be advanced: the Romanian government, in charge of the rotating presidency of the Council, was too busy undermining the rule of law in Romania to organise a hearing while the otherwise very active Finnish Presidency did not want to be seen as interfering with Poland’s parliamentary elections of October 2019, which is why it prioritised the organisation of the first Article 7(1) TEU hearing held in respect of Hungary in September 2019 followed by another one in December 2019.

In concrete terms, this means we only saw the Commission give a few updates on the rule of law situation in Poland during the past 12 months: 

18 February 2019: The Commission provided the Council with an update on the latest developments regarding judicial reform in Poland. Member states considered that recent legislative changes concerning the Supreme Court law were a positive development and encouraged the Polish authorities to address the remaining issues raised by the Commission.

9 April 2019: The Commission provided an update on the state of play in relation to Poland.

18 July 2019: The Council took stock of the state of play as regards the rule of law in Poland in the light of recent developments, in particular the judgment of the European Court of Justice on Poland’s Supreme Court law.

16 September: The Commission updated ministers on the developments regarding the rule of law in Poland following the meeting of the General Affairs Council in July.

10 December 2019: The Commission updated ministers on the latest developments, including the recent judgments of the European Court of Justice concerning Polish rules on the retirement age of judges and public prosecutors and the new Disciplinary Chamber of the Polish Supreme Court.

Beyond the issue of the two rotating presidencies of the Council’s own priorities, it would appear that an additional pretext was used by some EU governments to justify their not untypical torpor: the alleged need to wait to see how Polish authorities would comply (or not) with the Court of Justice’s forthcoming infringement and preliminary rulings considering the increasing number of pending cases before the Court, and which directly or indirectly raise most of the issues highlighted in the Commission’s Article 7(1) reasoned proposal.

As we shall now see, Polish authorities have only publicly accepted to comply with the Court’s two infringement rulings to date primarily because these rulings did not prevent them from progressively capturing the Supreme Court from within. As soon as the Court of Justice provided an interpretation of EU law which led a not-yet-captured chamber of Poland’s Supreme Court to find unlawful two of the sham bodies established or captured by the ruling party (i.e. the “Disciplinary Chamber” of the Supreme Court and the ENCJ-suspended National Council of the Judiciary), a new bill was put forward to organise and legalise non-compliance with the judicial independence requirements established in EU law, in obvious breach of both the Polish Constitution and the EU Treaties.

2. The Court of Justice’s entrée en piste

As of today, two infringement rulings – Case C-192/18 and Case C-619/18 – and one preliminary ruling – joined Cases C-585/18, C-624/18 and C-625/18 – have been issued by the Court of Justice. In addition, one infringement case regarding Poland’s new disciplinary regime for judges (C-791/19) and, to the best of our knowledge, eighteen requests for a preliminary ruling raising judicial independence issues, are now pending before the Court.

The two infringement rulings previously mentioned went against Poland, which was not in the slightest surprising considering the obvious arbitrary nature of the changes pushed by Polish authorities regarding the retirement regime of Polish Supreme Court judges, Polish ordinary court judges and public prosecutors. These infringement rulings having been analysed elsewhere (see e.g. here and here), let us just emphasise how they show the lack of good faith of Polish authorities when it comes to the real reasons underlying their so-called “reforms”. Indeed, while members of Poland’s ruling party have been keen to constantly emphasise the need to “decommunise” the judiciary (even claiming that younger judges educated post 1989 would allegedly follow the behavioural patterns of their older, allegedly “communist”, colleagues), the justifications put forward before the Court to justify the retirement “reforms” were of a different nature. For instance, the lowering of the retirement age of Supreme Court judges to 65 was allegedly needed to standardise their regime “with the general retirement age applicable to all workers in Poland” while in the case of female ordinary court judges, Polish authorities explained the lowering of their retirement age to 60 (from 67) “on account of their particular social role connected with motherhood and child raising”.

With respect to the Supreme Court, the Court observed, in a highly unusual fashion but commensurate to the Polish government’s bad faith, that the “explanatory memorandum to the draft New Law on the Supreme Court contains information that is such as to raise serious doubts [our emphasis] as to whether the reform of the retirement age of serving judges of the Sąd Najwyższy (Supreme Court) was made in pursuance of such objectives, and not with the aim of side-lining a certain group of judges of that court [our emphasis]”. The Court therefore had no choice but to conclude that Polish authorities did not pursue a legitimate objective when they sought to lower the retirement age of the Supreme Court judges in post prior to the adoption of the law in dispute. Similarly, the Court of Justice found the new Polish rules relating to the retirement age of judges of ordinary courts and public prosecutors, adopted in July 2017, to be in violation inter alia of the principle of irremovability of judges, which is inherent in judicial independence.

In another seminal (preliminary) ruling (analysed e.g. here and here), the Court of Justice meticulously explained how the referring chamber of Poland’s Supreme Court can ascertain whether the so-called Disciplinary Chamber (hereinafter: DC) – which is also one of the problems highlighted by the Commission in its Article 7(1) reasoned proposal –  is sufficiently independent to constitute a court within the meaning of EU law. In the same preliminary ruling, the Court also explains how to ascertain the independence (or lack thereof) of the new National Council of the Judiciary (hereinafter: NCJ) – another body which has been highlighted as problematic by the Commission and many other organisations. Overall, the ECJ’s interpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy the basic requirements of independence established by EU law, as previously made explicitly clear by Advocate General Tanchev.

Unsurprisingly, therefore, the referring court (the Labour and Social Security Chamber of the Supreme Court) subsequently found on 5 December 2019, on the basis of a meticulous and compellingly argued judgment, that the neo-NCJ does not offer a sufficient guarantee of independence from the legislative and executive authorities before ruling that the “Disciplinary Chamber” does not constitute a “court” within the meaning of EU law and therefore not a court within the meaning of Polish law as well.

With respect to the neo-NCJ, one may recall that it has been suspended from the ENCJ since August 2018 and that it was not merely established in breach of the Polish Constitution but also most likely unlawfully constituted on the basis of the 2017 (unconstitutional) law which changed the appointment procedure for the judicial members of the NCJ while also providing “for the early termination of the mandate of all judicial members on the Council”. To put it simply, it is likely that the judicial members of the NCJ were not supported by the required number of judges provided by the new (unconstitutional) law and/or only supported by each other or judges seconded to the Ministry of Justice. This is likely the reason why national authorities have openly ignored (you read that correctly) a final ruling from the Supreme Administrative Court ordering the Sejm to disclose the names of the judges supporting the NCJ candidates.

This blatant but far from unique violation of the most basic understanding of the rule of law by Polish authorities was rightly deplored by the Supreme Court in its judgment of 5 December 2019 which applied the ECJ preliminary ruling of 19 November 2019.

3. Problems left unaddressed by the Court of Justice’s rulings to date

Notwithstanding the seminal and welcome rulings issued this year by the Court of Justice, a number of important and urgent issues have been left unaddressed. This is not to say, however, that the Court of Justice is necessarily at fault as e.g. the Court cannot approve interim measures if it does not receive an application from the Commission as it did in the case relating to the independence of Poland’s Supreme Court and most recently in the case relating to the Disciplinary Chamber.

To begin with, the situation has not improved one iota as far as the (captured) Constitutional Tribunal (hereinafter: CT) is concerned. Despite a sharp decline in the number of cases submitted to it due to the widespread concerns about its lack of independence, the CT is fully operating and continuing to pretend to be a court. Last October, it even acted like a truly “European” court by declaring, for the first time, that a statute is not consistent with the TFEU (case P 1/18). This may be viewed positively at first sight but it should not be. Indeed, what we have here is a body masquerading as a court enforcing EU law (but only when it suits the ruling party) whereas according to the Commission itself, there is no longer any effective constitutional review in Poland following the failure of Polish authorities to take any steps with the view of restoring the independence of the CT. In addition to this damning diagnosis, one may refer to a series of letters to the (unlawfully appointed) “President” of the CT by a fellow judge. These letters offer multiple examples of obvious abuse of power such as an arbitrary allocation of cases to please the ruling party, an arbitrary make-up of judicial panels as well as an arbitrary (and unconstitutional) prohibition of dissenting opinions. To put it concisely, the time for an infringement action directly targeting the captured CT has come considering the damage it has done and its role when it comes to giving a veneer of legality to fellow sham bodies such as the Disciplinary Chamber (DC) and the National Council of the Judiciary (NCJ).

Speaking of the NCJ, people may be surprised (or not) to learn that it is continuing to function in a “business as usual” fashion notwithstanding the ruling of the Supreme Court of 5 December 2019 finding it to lack sufficient independence from legislative and executive authorities. In addition, some of its members have been busy spreading falsehoods about the content and binding nature of the ECJ preliminary ruling of 19 November 2019. Since its (unconstitutional) establishment on the back of the premature termination of the four-year term of office of its previous members, the neo-NCJ has recommended more than 650 individuals to be appointed as judges or for promotion. Its enthusiastic participation in the (unconstitutional) attempted purge and simultaneous court-packing of the Supreme Court has been well documented, not least by the European Commission. Furthermore, it was revealed last August that some NCJ members secretly took part in a smear campaign targeting judges, including the First President of the Supreme Court (alleged members of what has been described as a “troll form” have of course denied the allegations). As of today, we are still waiting for meaningful investigations and sanctions but how can one hope for any given that “it is clear that the alleged smear campaign was organised from within the Ministry, with the involvement of high ranking officials in the Ministry and National Council of Justice”, with the investigations undertaken by the NCJ and the prosecution service which is controlled by the Minister of Justice, the alleged main guilty party.

Similarly, the two captured chambers of Poland’s Supreme Court – the DC and the Extraordinary Control and Public Affairs Chamber – continue to function and continue to pretend to be independent judicial bodies. To give a veneer of legality to their existence, they have involved the captured CT by requesting it confirm the constitutionality of their status and deliberately referring cases to extended panels within them (7 “judges” or the whole chamber) in order to make their “judgments” more difficult to overrule as other benches, composed of 3 judges, normally need to refer cases to even bigger formation should they wish to override it. The “judges” belonging to the Disciplinary Chamber also did not shy away from self-certifying themselves. In April 2019, they adopted a resolution proclaiming that their appointment is lawful and that the ENCJ-suspended NCJ was similarly established in a lawful manner as confirmed by the ruling of the (unlawfully composed) panel of the CT. They must not be aware of the nemo judex in causa sua principle among other basic legal principles.

To complete our brief outline of the yet to be addressed issues by the ECJ (but a third infringement action is now pending before it), the overall operation of the new disciplinary system needs to be mentioned. While an alleged involvement in a smear campaign organised by the Ministry of Justice will not cause you any major inconvenience (disciplinary or otherwise), multiple judges have faced disciplinary charges for such “major crimes” as seeking to implement the Court of Justice ruling of 19 November 2019, being publicly critical about the so-called “judicial reforms” and “their effect on judicial independence”, or, even more alarmingly, for the content of the “decisions they have taken when adjudicating cases”. Yes, we are talking about a Member State of the EU in 2019 and not the Soviet Union. This is why, one may note in passing, that the analysis of Advocate General Tanchev in Miasto Łowicz and Others (C-558/18 and C-563/18) may appear excessively formalistic and disconnected from the reality on the ground. As noted in a recent and worth reading report by two members of the Council of Europe’s Parliamentary Assembly:

A key issue of concern is the fact that after prosecutors and judges have been informed by the Disciplinary Inspectors that a disciplinary investigation has been started against them, these investigations often continue indefinitely without formal disciplinary charges being brought [our emphasis] before the relevant disciplinary chambers … The Chairperson of the National Council of the Judiciary informed us that, in the last year and a half, 1174 disciplinary investigations were started. Only in 71 instances had disciplinary cases been opened … Irrespective of the small number of actual disciplinary cases opened, the large number of investigations started by disciplinary officers directly accountable to the Minster of Justice, and the time it takes to close these investigations, if at all, clearly has a chilling effect on the judiciary and affects their independence.

This is now the reality of the state of the rule of law in Poland. It is to be hoped that the ECJ will not exclusively focus on whether formal disciplinary charges have been brought but instead take full account of the overall context and the impact of the multiple (kangaroo) disciplinary investigations leaving judges and prosecutors the ruling party has targeted in a “precarious limbo” as they are being investigated without “being able to defend themselves”.

4. Going for broke: The “de facto Polexit” bill

Having initially reacted positively to the Court of Justice’s ruling of 19 November 2019 – according to the Minister of Justice/Prosecutor General, the Court’s ruling was a “great defeat for the extraordinary caste” – representatives of the ruling party and members of the bodies concerned by the Court’s judgment (the DC and NCJ) quickly changed tack when they finally understood that the Court’s reasoning had to lead the referring court to find both the DC and NCJ as lacking basic guarantees of independence.

Another important aspect of the Court of Justice’s ruling, not widely noted, is that “the EU test for the ‘appearances’ of independence can now be applied by ‘old’ Supreme Court judges also to assess the independence of the Chamber for Extraordinary Control and Public Affairs, the second chamber set up in the same way, from scratch, by the ruling parliamentary majority”.

This led the ruling party, following their usual modus operandi, to rush a new piece of legislation via some acquiescent MPs although the wording of the bill and the explanatory memorandum attached to it make it obvious that the bill was drafted in the Ministry of Justice. The purpose of this modus operandi is evident: to circumvent public consultation and prevent a meaningful parliamentary and public debate.

According to the initial version of the bill, it would be a disciplinary offence inter alia to disregard a provision of Polish law in a situation where its non-compliance with the Constitution (which has been violated on multiple occasions by members of the ruling party, not least the Polish President) has not been not confirmed by the (captured) CT. To put it bluntly, the ruling party “wants to force judges not to assess the conformity of the laws passed by the current authority on their own or through legal questions to the Supreme Court or the CJEU, with the Constitution or European law, under the threat of a penalty”.

Other provisions of the bill are similarly alarming. For instance, the proposal aims to prohibit judges from discussing “political matters” or engaging in activities or omissions which would allegedly undermine the functioning of the judiciary or more generally the functioning of Polish authorities and Poland’s constitutional bodies. This was defended inter alia on the ground that French law would similarly restrict the freedoms of expression and of association of French judges. As demonstrated here, this is pure, and deliberately misleading nonsense.

Another worth noting provision, which is so typical of the institutional capture strategy pursued by Poland’s ruling party, aims to secure the speedy replacement of the current First President of Poland’s Supreme Court when her term of office expires next April. According to the contemplated new three-step procedure, the General Assembly of Supreme Court judges, whose task is to present candidates for this post to the President of the Republic, must consist of at least 84 out of 110 judges. If this quorum is not met, the second meeting must be held with a presence of 75 judges while the third must include not less than 32 of them. The bill also gives each judge of the Supreme Court a right to propose one candidate for the said position.

Bearing in mind that at least 43 nominees of the (unlawfully operating) neo-NCJ are members of the Supreme Court, the new procedure virtually guarantees that the post will fall to one of (the ruling party’s) chosen ones. And should the said procedure fail, which is unlikely but better safe than sorry as the saying goes, the President of the Republic will be given an exclusive right to appoint an interim First President. In other words, it is only a matter of time before the ruling party captures the Supreme Court as a whole as it has already captured the CT and the NCJ, but also the Supreme Administrative Court. Indeed, and for the first time since the beginning of the rule of law crisis, the bill also targets the Supreme Administrative Court with the Polish President being given once again the exorbitant power to decide the new rules of procedure of that court.

The bill contains so many outrageous provisions and laughable claims – for instance the bill claims to be mindful of the need to protect the principle of irremovability of judges by which one should of course understand the irremovability of individuals whose appointments are legally tainted due to the unlawful character of the NCJ – it is difficult to be concise. Space constraints precluding further details here, we will refer readers to Professor Marcisz’s analysis:

The provisions in the bill are all designed as an assault on judicial independence. They aim at crushing the opposition against previous illegal reforms among the judiciary. No need to discuss their details: res ipsa loquitur. The bill is blatantly unconstitutional but without a functioning Constitutional Court it does not matter much. It is also contrary to EU law. Not only does it infringe the judicial independence … but also the principle of primacy of EU law.

It was good therefore to see Vice-President Jourová making clear her multiple concerns in a letter to the Polish authorities on 19 December 2019. However, if there is anything the last four years should have taught the Commission is that Polish authorities are never acting in good faith and will not shy away from deliberately and repeatedly violating the principle of loyal cooperation in order to create faits accomplis. The Commission should face up to this unfortunate reality and stop wasting time by repeatedly trying to “engage in a constructive dialogue” with a repeated offender.

What is needed from the Commission is strong leadership via concrete deeds. In this respect, European Commission Vice President Věra Jourová and the European Commissioner for Justice Didier Reynders must be commended for their leadership. The Commission’s decision “to ask the Court of Justice to impose interim measures on Poland, ordering it to suspend the functioning of the Disciplinary Chamber of the Supreme Court” on the back of the pending infringement case 791/19 was an absolutely essential step to take at this point in time. As accurately noted by the Commission, Polish authorities’ refusal to comply with the ECJ ruling of 19 November 2019 and the subsequent ruling of the Supreme Court of 5 December 2019 has created “a risk of irreparable damage for Polish judges and increasing the chilling effect on the Polish judiciary”.

In addition, the Commission should stand ready to launch a fourth infringement action modelled on the infringement action initiated against the attempted purge of the Supreme Court as soon as the pending bill is adopted (and to shorten pre-litigation stage as much as possible so as not to let Polish authorities capture the Supreme Court in the meantime). As for national governments who care about the rule of law, they should systematically join pending proceedings and should the Commission fail to act promptly, they should stand ready to put their money where their mouth is and initiate rule of law infringement actions on the basis of Article 259 TFEU.

5. A fictional country or an EU Member State in 2020?

Imagine a country where national authorities (non-exhaustive list below):

This country is not a fictional one. This country is now Poland under the Soviet-style moniker of the mislabelled “Law and Justice” party.

As accurately observed on 16 October 2019 by the First President of Poland’s Supreme Court: “The end result is that the rule of law in Poland is not simply at risk: it is being erased.” 

Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Poland should now be considered, to borrow an expression from the financial world, as a country in default from a rule of law point of view. EU institutions and EU Member States will soon have to decide on the nature of their losses: Sacrifice their good relations with Polish national authorities or sacrifice the EU legal order.

Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.

The European Commission’s Activation of Article 7: Better Late than Never?


by Dimitry Kochenov, Professor of EU Constitutional Law at the University of Groningen; Laurent Pech, Professor of European Law at Middlesex University London; and Kim Lane Scheppele, Professor of Sociology and International Affairs at Princeton University
‘The European Union is first and foremost a Union of values and of the rule of law. The conquest of these values is the result of our history. They are the hard core of the Union’s identity and enable every citizen to identify with it. The Commission is convinced that in this Union of values it will not be necessary to apply penalties pursuant to Article 7 of the Union Treaty’ European Commission, 15 October 2003
1. What has just happened?
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland by (i) issuing a fourth Rule of Law Recommendation, which complements three previous Recommendations, adopted on 27 July 2016, 21 December 2016 and 27 July 2017; (ii) submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland under Article 7(1) TEU and (iii) referring the Polish Law on the Ordinary Courts Organisation to the Court of Justice of the EU under Article 258 TFEU and in the context of which the Commission is raising for the first time (to the best of our knowledge) a violation of Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights by Poland to the extent that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (a similar combination was raised in the first stage of an infringement action against Hungary in December 2015 with regard to immigration issues but this language was dropped by the time it got to the Court of Justice).
Should the Polish authorities finally decide to implement the Commission’s recommendations within three months, the Commission has indicated its readiness to ‘reconsider’ its Article 7(1) proposal (para 50 of the Commission’s fourth rule of law recommendation).
The intensity and repeated nature of Poland’s ruling party attacks on the most basic tenets of the rule of law are unprecedentedly aggressive and in obvious breach of the Polish Constitution, which in our view warrants the Commission’s action (this is not to say that Article 7(1) should not also be activated against Hungary as two of the present authors previously argued in this 2016 article). Indeed, as rightly noted by the Commission, the Polish authorities have adopted over a period of two years no less ‘than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary’. It was time therefore for the Commission to defend the independence of Member State judiciaries and the rule of law (as nicely put by Maximilian Steinbeis, ‘Polish courts are our courts’, that is, ‘if the legal system in a Member State is broken, the legal system in the whole of the EU is broken’).
The media have so far only almost exclusively focused on the first ever invocation of what is often described as the EU’s ‘nuclear option’, which, however, as correctly pointed out by Frans Timmermans in his press conference announcing the Commission’s actions, is a misnomer (as we previously argued here). To put it briefly, Article 7 TEU provides for two main mechanisms: a preventive one in case of a ‘clear risk of a serious breach’ of the values common to the EU and its Member States and a sanctioning one where ‘a serious and persistent breach’ of the same values has materialised (for more detailed commentaries on the mechanics of Article 7 see hereand here).
The Commission merely initiated the preventive mechanism on Wednesday when one could however reasonably argue that we are already way beyond the stage of a ‘clear risk’ and entered ‘serious and persistent breach’ territory following the capture of the Polish Constitutional Tribunal in obvious breach both of the Polish Constitution and the Commission’s first and second rule of law recommendations (see Pech and Scheppele, January 2017). Before however offering further details on the situation in Poland, however, it may be worth offering a brief overview of Article 7’s genesis.


2. Genesis of Article 7

Continue reading “The European Commission’s Activation of Article 7: Better Late than Never?”

The EU and the Spanish Constitutional Crisis


by Cecilia Rizcallah, (Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles and Université libre de Bruxelles)


Spain is facing, since more than a month now, a constitutional crisis because of pro-independence claims in Catalonia. These claims resulted in the holding of an independence referendum on 1 October 2017, organized by the Spanish autonomous community of Catalonia’s authorities, led by its President Mr. Carles Puigdemont. According to Barcelona, 90% of the participants voted in favor of Catalonia’s independency on a turnout of 43%.

Several weeks before the holding of the referendum, the Spanish Constitutional Court held that such plebiscite was contrary to the Spanish Constitution, and it was therefore declared void by the same Court. The Spanish central Government moreover firmly condemned this act and suspended Catalonia’s autonomy, on the basis of Article 155 of the Spanish Constitution which allows the central Government to adopt “the necessary measures to compel regional authorities to obey the law” and, thereby, to intervene in the running of Catalonia.

EU’s Incompetency in Member States’ Internal Constitutional Affairs

During these events, a contributor to the New York Times wondered “Where is the European Union?”. The Guardian stated “As Catalonia crisis escalates, EU is nowhere to be seen”. EU authorities’ restraint can yet easily be explained, at least, from a legal point of view. Indeed, the European Union has in principle neither the competence, nor the legitimacy, to intervene in its Member States’ internal constitutional affairs. Article 4.2 TEU incidentally underlines that the EU shall respect Member States’ “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” and that it “shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”. The President of the Commission, J.-C. Junker stated that it was “an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain” but however noted that in case of separation of Catalonia from Spain, the region would consequently “find itself outside of the European Union”.

Puigdemont’s  Departure for Brussels

Theoretically, the EU has thus no legal standing to intervene in the Spanish constitutional crisis. Recent events have, however, brought the EU incidentally on stage.

Mr. Puigdemont, the deposed leader of Catalan authorities, left Barcelona for Brussels several days ago, where he declared he was not intended to seek asylum and that he would return in Spain if judicial authorities so request, provided he was guaranteed conditions of a fair judicial process. In the meanwhile, the State prosecutor decided to start proceedings against Mr. Puigdemont and other officials of the ousted Catalan government for rebellion, sedition and embezzlement and demanded to the judge in charge of the processing charges to issue a European arrest warrant (hereafter EAW) for Mr. Puigdemont and four other members of his former cabinet, after they failed to appear at the High Court hearing last Thursday.  The EAW was issued by the Spanish judge last week. EU law has thus been relied upon by Spanish authorities to respond to its internal crisis, because of the departure of several Catalan officials to Brussels, which constituted, at the outset at least, nothing more than a lawful exercise of their free movement rights within the Schengen area.

Mr. Puidgemont and the other people subject to a EAW presented themselves to Belgian authorities, which decided to release them upon several conditions including the prohibition to leave the Belgian territory. A Belgian Criminal Chamber has as of now two weeks to decide if they should be surrendered to Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to Puidgemont’s Belgian lawyer, the former Catalan leader will agree to return in Spain provided that he will be guaranteed respect of his fundamental rights, including the right to an impartial and independent trial. He moreover underlined that Puidgemont will submit itself to Belgian judicial authorities which will have to assess whether or not these conditions are met.

The system of the EAW, however, entails a quasi-automaticity of the execution by requested authorities of any Member State. Indeed, because it relies upon the principle of mutual trust between Member States, requested authorities may not, save in exceptional circumstances, control the respect by the requesting State of fundamental values of the EU, including democracy and human rights. The Council Framework Decision 2002/584 of 13 June 2002, which establishes the EAW includes a limitative list of mandatory and optional grounds for refusal which does not include a general ground for refusal based on human rights protection (Articles 3 and 4). Indeed, only specific violations or risk of violations of fundamental freedoms justify the refusal to surrender, according to the Framework Decision. As far as the right to a fair trial is concerned, the Framework Decision does not include possibilities to rebut the presumption of the existence of fair proceedings in other Member States except when the EAW results from an in abstentia decision and only under certain conditions (Article 4a).

A strong presumption of respect of EU values underlies EU criminal cooperation and the ECJ has, as of now, accepted its rebuttal on grounds of human right not included in the main text of the Framework Decision only where a serious and genuine risk of inhuman and degrading treatment existed for the convicted person in case of surrender (see the Aranyosi case, discussed here). In that respect, the lawyer of the other Catalan ministers who are already in jail has lodged a complaint for mistreatment of them, but more elements will be required to refuse the execution on the EAW on this basis.

Indeed, according to the Court of Justice, “the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention”. Moreover, the domestic judge must also “make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” before refusing the execution of the EAW (Aranyosi, paras 89 and 92).

Furthermore, the possibility to refuse to surrender persons convicted for political offences – which is traditionally seen as being part of the international system of protection of refugees – has been removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – which is the ancestor of the current EAW system – precisely because of Member States’ duty to trust their peers’ judicial system. Interestingly, the removal of this ground for refusal had been required by Spain when it faced difficulties to obtain the extradition of Basque independentists who were seeking for protection in Belgium. The Spanish government pleaded that the ground for refusal for political infractions constituted a hurdle to criminal cooperation within the EU which was at odds with the trust that Member States should express to each other (see E. Bribosia and A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current state of EU law, no option for refusal of execution of the EAW concerning Mr. Puidgemont seems thus to exist. It is noteworthy, however, that the EAW system may, as a whole, be suspended, when the procedure provided for by Article 7 TEU is initiated if there is a (clear risk of) violation of the values referred to in Article 2 TEU on which the Union is founded, including human rights, democracy and the rule of law. Although some people have called for the initiation of this mechanism, the reliance on Article 7 is very unlikely to happen politically: it needs at least a majority of four fifths at the Council just to issue a warning, and the substantive conditions of EU values’ violations are very high.

Nonetheless, Belgium has included in its transposing legislation (Federal Law of 19 December 2003 related to the EAW) an obligatory ground of refusal – whose validity regarding EU law can seriously be put into question –  if there are valid grounds for believing that its execution would have the effect of infringing the funda­mental rights of the person concerned, as enshrined by Article 6(2) of the TEU (Art. 4, 5°). Triggering this exception will however result, in my view, in a violation of EU law by the Belgian judge since the ECJ has several times ruled that the grounds for refusal included in the Framework Decision were exhaustive and that a Member State could not rely upon its national human rights protection to refuse the execution of a EAW which respects the conditions laid down in the Framework Decision (Melloni).  Another option for the Belgian judge will be to make a reference to the ECJ for a preliminary ruling in order to ask whether, in the case at hand, the presumption of conformity with EU fundamental rights in Spain may be put aside because of the specific situation of Mr. Puidgemont.

The Quasi-Exclusion of the Asylum Right for EU Citizens

Besides asking for the refusal of his surrender to Spanish authorities, Mr. Puidgmont could – at least theoretically – seek asylum in Belgium on the basis of the Refugee Convention of 1951, which defines as refugees people with a well-founded fear of persecution for (among other things) their political opinion (Article 1.A.2).

However, Spain also requested – besides the removal of the ground for refusal to surrender a person based on the political nature of the alleged crime in the European Extradition Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam signed in 1997. This Protocol practically removes the right of EU citizens to seek asylum in other countries of the Union.

Founding itself on the purported trustful character of Member States’ political and judicial systems and the (presumed) high level of protection of fundamental rights in the EU, the Protocol states that all Member States “shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters” (Art. 1). Any application for asylum made by an EU citizen in another Member State shall therefore be declared inadmissible, except if the Member State of which the applicant is a national has decided to suspend temporarily the application of the European Convention on Human Rights in time of emergency (Article 15 of the ECHR; note that it’s not possible to suspend all provisions of the ECHR on this basis) or if this Member State has been subject to a decision based on Art. 7.1. or 7.2. TEU establishing the risk or the existence of a serious and persistent breach by the Member State of EU values referred to in Art. 2 TEU.

A Member State may also decide, unilaterally, to take an asylum demand into consideration at the double condition that it immediately informs the Council and that that the application shall be dealt with on the basis of the presumption that it is manifestly unfounded.  This last derogation has been invoked by Belgium which has adopted a declaration stating that it would proceed to an individual examination of each asylum demand of a EU citizen lodged with it. To comply with EU law, it must however consider each application manifestly unfounded rendering the burden of the proof very heavy for the EU citizen asylum seeker.  Belgian alien’s law provides for an accelerated procedure for asylum when the individual comes from an EU country (Article 57/6 2 of the Belgian Aliens Act) but statistics nevertheless show that about twenty asylum demands from EU citizens where declared founded in 2013 and 2014 by Belgian authorities.

The EU Brought on Stage…  

In both cases, the refusal to execute the EAW or the granting of an asylum right to Mr. Puidgemont would result from the consideration that the Spanish judiciary does not present the basic and essential qualities of independence and impartiality to adjudicate the case related to Catalan independence activists. This observation would likely result in a major diplomatic dispute between the two countries and, more widely, in the EU. Indeed, the consideration made by Belgium and/or the ECJ that Spain would not respect fundamental values of the EU in treating the case of Catalonia would jeopardize the essential principle of mutual trust between Member States, which is relied upon in criminal, asylum but also in civil judicial cooperation. The Spanish constitutional crisis could thereby potentially call into question the whole system of cooperation in the European Area of Freedom Security and Justice.

Refuge ou asile ? La situation de Carles Pbyuigdemont en Belgique au regard du droit de l’Union européenne


by Henri Labayle, CDRE et Bruno Nascimbene, Université de Milan

Quoique largement circonscrite à la Belgique, l’agitation médiatique provoquée par l’arrivée à Bruxelles de Carles Puigdemont et de certains de ses proches soulève d’intéressants points de droit quant à leur situation sur le territoire d’un autre Etat membre de l’Union. Attisée par les déclarations imprudentes d’un secrétaire d’Etat belge à l’Asile et à la Migration, Theo Francken, cette présence a réveillé d’anciennes querelles entre les deux royaumes concernés tenant tout à la fois à la possibilité pour la Belgique d’accorder l’asile à l’intéressé (1) et, à défaut, de constituer un refuge face aux éventuelles poursuites intentées à son égard par les juridictions espagnoles (2).

1. La recherche d’une terre d’asile

Le suspense n’a guère duré. Après avoir géré son départ de Catalogne dans le plus grand des secrets, dans une posture digne de l’homme du 18 juin 1940 dont il porte le prénom, le président déchu du gouvernement catalan y a mis fin en déclarant qu’il n’était « pas venu ici pour demander l’asile politique ». Pourtant, son entourage comme les déclarations du secrétaire d’Etat Theo Francken, nationaliste flamand, membre du parti indépendantiste ultra-conservateur N-VA, avaient donné corps à la polémique.

a. Le choix de son avocat, d’abord, n’a rien eu d’innocent. Tout en déclarant que son client n’était pas en Belgique pour demander l’asile, ce dernier n’en a pas moins jugé utile de préciser soigneusement avoir « une expérience de plus de 30 ans avec l’extradition et l’asile politique de basques espagnols et c’est probablement sur la base de cette expérience qu’il a fait appel à moi ». Les agences de presse se sont du reste empressées de souligner qu’il avait en son temps assuré la défense du couple Luis Moreno et Raquel Garcia, réclamés en vain à la Belgique par l’Espagne en raison de leur soutien à l’organisation terroriste ETA.

Source de vives tensions entre l’Espagne et la Belgique en raison du refus de cette dernière de les extrader puis de les remettre à Madrid autant qu’à propos du débat sur leur éventuel statut de réfugié politique, le cas de ces derniers éclaire l’insistance espagnole à inscrire en 1997 un protocole à ce sujet, le fameux protocole « Aznar » joint au traité d’Amsterdam. A tout le moins donc, la symbolique du recours à un avocat ainsi spécialisé n’est pas neutre, même s’il est permis de douter de l’adresse d’un tel amalgame pour une cause se présentant comme victime de la violence de l’Etat et d’un déni de démocratie.

Dans le même temps, exprimant sans détours sa sympathie à la cause nationaliste, le secrétaire d’Etat Theo Francken n’a pas manié la langue de bois. D’abord, à travers un constat sur la situation espagnole quelque peu téméraire : « la situation en Catalogne est en train de dégénérer. On peut supposer, de manière réaliste qu’un certain nombre de Catalans vont demander l’asile en Belgique. Et ils le peuvent. La loi est là. Il pourront demander une protection et introduire une demande d’asile et on y répondra convenablement ». Ensuite en fournissant une explication à son attitude au demeurant tout aussi douteuse : « en regardant la répression de Madrid et les peines de prison envisagées, la question peut se poser de savoir s’il a encore une chance d’un jugement équitable».

La volée de critiques faisant suite à cette provocation, y compris le désaveu a minima d’un premier ministre belge passablement gêné, oblige alors à rappeler les termes du débat juridique.

b. Sur l’insistance du premier ministre espagnol de l’époque, Jose Maria Aznar, le protocole n° 24 additionnel au traité d’Amsterdam s’efforce de réduire le droit d’asile à un droit seulement offert aux ressortissants tiers. En effet, « vu le niveau de protection des droits fondamentaux et des libertés fondamentales dans les États membres de l’Union européenne, ceux-ci sont considérés comme constituant des pays d’origine sûrs les uns vis-à-vis des autres pour toutes les questions juridiques et pratiques liées aux affaires d’asile». Le protocole n° 24 fut accompagné à l’époque de la déclaration n° 48 de la Conférence, ne préjugeant pas du droit de chaque Etat membre de prendre les mesures d’organisation nécessaires au respect de la Convention de Genève. Pour sa part, la Belgique déclara alors que, tout en approuvant le protocole n° 24, « conformément à ses obligations au titre de la convention de Genève de 1951 et du protocole de New York de 1967, elle effectuera, conformément à la disposition énoncée à l’article unique, point d), de ce protocole, un examen individuel de toute demande d’asile présentée par un ressortissant d’un autre Etat membre» (déclaration n° 5).

Le HCR n’avait pas manqué alors d’émettre des critiques fermes et fondées sur la conventionnalité d’une telle option, hostile à l’idée simpliste selon laquelle l’appartenance à l’UE constituerait par principe un critère objectif et légitime de distinction du point de vue de la protection entre Etats membres de l’Union et Etats tiers (UNHCR, « Position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member States », annexe à la lettre du Directeur de la Division de la protection of internationale à M. Patijn, Ministre des Affaires étrangères des Pays Bas, 3 février 1997 ; voir également UNHCR Press release 20 juin 1997). Vingt ans après, la situation des droits fondamentaux dans certains Etats membres de l’Union conforte cette critique.

Conscients de ces difficultés, les Etats membres ont alors opté pour une solution de contournement, se gardant de toute interdiction frontale du droit d’asile à propos de leurs ressortissants et préférant en retenir une approche extrêmement restrictive. Il s’agit, comme l’indique le protocole, « d’empêcher que l’asile en tant qu’institution soit utilisé à des fins autres que celles auxquelles il est destiné ».

Le traité de Lisbonne n’a modifié ce dispositif qu’à la marge, à deux précisions près. La première tient dans la disparition des déclarations formulées à Amsterdam et la seconde voit l’invocation des « valeurs » de l’Union justifier désormais l’existence du protocole puisque, par hypothèse, les Etats membres les respectent pour pénétrer et demeurer dans l’Union. Ils ne peuvent donc être sources de persécutions, sauf preuve du contraire.

c. La pratique de l’asile entre Etats membres de l’Union est donc régie aujourd’hui par le Protocole n° 24 révisé à Lisbonne, lequel constitue la lex specialis du « droit d’asile pour les ressortissants des Etats membres de l’Union européenne ». Il n’est pas indifférent de rappeler que l’ensemble du droit primaire et dérivé de l’Union de l’asile se conforme à cette logique. Le champ d’application personnel du droit d’asile selon la directive « Qualification » ne concerne que les ressortissants de pays tiers, en application de l’article 78 TFUE qui en fait un droit de ces ressortissants et s’impose à l’article 18 de la Charte dont les « explications » mentionnent spécifiquement le Protocole.

Ce dernier, outre les hypothèses qui visent une violation établie des valeurs de l’Union ou une dérogation en vertu de l’article 15 de la Convention EDH, régit l’éventuel octroi d’une protection à un citoyen de l’Union dans son article unique point d) : « si un État membre devait en décider ainsi unilatéralement en ce qui concerne la demande d’un ressortissant d’un autre État membre; dans ce cas, le Conseil est immédiatement informé; la demande est traitée sur la base de la présomption qu’elle est manifestement non fondée sans que, quel que soit le cas, le pouvoir de décision de l’État membre ne soit affecté d’aucune manière ».

Le plus grand flou règne ensuite en la matière quant à la pratique dégagée par les Etats à ce propos. On sait, par exemple qu’en France le Conseil d’Etat a dégagé une interprétation littérale du protocole Aznar à propos de citoyens roumains tout en n’écartant pas l’hypothèse d’un examen (CE, 30 décembre 2009, OFPRA c/ Cosmin, req. 305226, note Aubin, AJDA 2010). De même, l’administration française s’est-elle empressée de souligner par voie de circulaire, à l’occasion de l’adhésion de la Croatie en 2013, que le retrait de ce nouvel Etat membre de la liste des pays tiers d’origine sûrs n’entraînait aucun changement sur le plan de l’admission provisoire au titre de l’asile et du jeu de la procédure d’examen prioritaire, dans la logique du protocole Aznar.

Les choses sont beaucoup plus incertaines concernant l’Union elle-même et les doutes que l’on peut légitimement éprouver quant à la situation des droits fondamentaux dans l’Union en général comme en particulier invitent à la réserve.

En 2015, la Commission canadienne de l’immigration et du statut de réfugié fait ainsi état de la grande diversité des pratiques nationales au sein de l’Union à l’égard de ce protocole, principalement en raison des divergences portant sur la présence des Etats membres de l’Union sur les listes nationales de pays d’origine « sûrs ». Seuls la Belgique et les Pays Bas auraient, à ce jour, rendu des décisions positives de protection.

Pour ce qui est plus précisément de la Belgique, susceptible d’accueillir M. Puigdemont, si elle semble ne pas avoir renouvelé à Lisbonne sa déclaration d’Amsterdam, elle conserve néanmoins la possibilité de procéder à une évaluation des situations individuelles. Quasiment exclusivement saisie par des nouveaux Etats membres, le plus souvent à propos de la question des Roms, elle fait un usage très parcimonieux de cette possibilité puisque près d’un millier de demandes auraient été déposées depuis 2011 pour moins de quinze reconnaissances au total.

La déclaration de la Belgique, qui a certainement une valeur politique, conserve sa valeur juridique, même si elle n’a pas été répétée, comme elle aurait dû être révoquée. En tout état de cause, les Etats membres conservent le droit souverain d’accorder l’asile sur la base de leur droit interne. Ainsi, dans la Constitution d’un État membre comme l’Italie, il existe une disposition fondamentale, à l’instar du troisième paragraphe de l’article 10, qui prévoit qu’un étranger qui est effectivement empêché d’exercer ses libertés démocratiques garanties de la Constitution italienne, a le droit à l’asile sur le territoire de la République, dans les conditions prévues par la loi. Bien que l’Italie n’ait fait aucune déclaration, il n’y a aucun doute que l’Etat garde sa souveraineté quant à la concession de l’asile, aussi appelé asile constitutionnel et qui fait abstraction des obligations internationales ou de l’Union. De même, en droit français, le préambule de la Constitution de 1946 prévoit-il que« tout homme persécuté en raison de son action en faveur de la liberté a droit d’asile sur les territoires de la République ». Ces formes d’asile particulier n’ont pas été prises en considération par M. Puigdemont , la Belgique lui paraissant un Etat plus sûr ou protecteur.

En Italie, d’un autre côté, dans la jurisprudence administrative, il s’est posé également la question de ne pas expulser vers la Grèce mais aussi vers la Bulgarie, considérés comme des pays non sûrs, malgré leur statut d’Etats membres de l’Union. Les juges administratifs ont ainsi démontré, s’il y en avait besoin, que la confiance mutuelle entre pays membres, dans la réalité et pratique courante, est souvent théorique…

C’est dans ce contexte peu encourageant que l’accueil de l’ex-président catalan peut être évalué.

2. La recherche d’une terre de refuge    

Deux hypothèses se présentent alors : celle d’un accueil en bonne et due forme au plan de l’asile et celle d’une réponse à un éventuel mandat d’arrêt européen. Les dénégations de M. Puigdemont quant à son éventuelle demande de protection ne sont pas aussi catégoriques qu’il y paraît au premier abord. Il a, en effet, ouvertement évoqué des « menaces » et un « besoin de sécurité » que les autorités espagnoles ne seraient plus à même de lui assurer soit en raison de la nature des poursuites exercées à son encontre soit en ne le protégeant pas efficacement des menaces pesant sur sa personne. On retrouve là derrière ces arguments des questions très classiques du droit de l’asile dont les réponses ne sont pas sans intérêt du point de vue de la recherche d’un refuge devant le risque pénal.

a. Même s’il s’avère que la Belgique n’a pas renouvelé sa déclaration d’Amsterdam, elle se trouve placée comme tout Etat membre de l’Union devant à une double contrainte posée par le Protocole n° 24. La première est de nature procédurale et elle consiste à « informer le Conseil » de sa volonté. Nul doute qu’ici surgiront des tensions diplomatiques avec d’autres Etats membres, au premier rang desquels l’Espagne se situera, et qu’elles mettront également à rude épreuve la coalition gouvernementale gouvernant la Belgique. A en rester sur le terrain politique, les déclarations des partis nationalistes flamands sur la nécessité de soutenir « ses amis » le laissent présager. A venir sur le terrain juridique, le soulagement politique pourrait alors naître de l’impossibilité de répondre favorablement à une quelconque demande, au vu de la réalité du droit de l’Union.

La seconde contrainte est matérielle et elle consiste à renverser la présomption posée par le protocole Aznar. Le point d) de son article unique spécifie bien que « la demande est traitée sur la base de la présomption qu’elle est manifestement non fondée ». Il convient donc pour les autorités nationales saisies de renverser cette présomption pour se placer en conformité avec le droit de l’Union.

On se trouve ici dans un schéma tout à fait comparable à celui que la Cour a dégagé avec force dans l’avis 2/13relatif à l’adhésion à la Convention EDH lorsqu’elle met en relief cette « prémisse fondamentale selon laquelle chaque État membre partage avec tous les autres Etats membres, et reconnaît que ceux-ci partagent avec lui, une série de valeurs communes sur lesquelles l’Union est fondée, comme il est précisé à l’article 2 TUE. Cette prémisse implique et justifie l’existence de la confiance mutuelle entre les Etats membres dans la reconnaissance de ces valeurs et, donc, dans le respect du droit de l’Union qui les met en œuvre » (point 168). « Fondamentale » car elle « permet la création et le maintien d’un espace sans frontières intérieures. Or, ce principe impose, notamment en ce qui concerne l’espace de liberté, de sécurité et de justice, à chacun de ces Etats de considérer … que tous les autres Etats membres respectent le droit de l’Union et, tout particulièrement, les droits fondamentaux reconnus par ce droit » (point 191).

S’atteler au défi de prouver que le Royaume d’Espagne ne respecte pas les valeurs de l’Union, au point de justifier d’accorder protection à l’un de ses citoyens au prétexte que son pays lui demande des comptes de sa violation d’une légalité établie par la juridiction constitutionnelle de ce pays, ne sera donc pas aisé. Une chose est en effet de se réclamer de la démocratie et de l’exercice des droits qui y sont attachés et une autre est de faire la preuve que cet exercice est légal. Dénoncer une éventuelle « politisation de la justice espagnole et son absence d’impartialité » comme « l’injustice du gouvernement espagnol » et son « désir de vengeance » ne se paie pas seulement de mots.

Or, rien dans l’état du droit positif n’accrédite une accusation d’une telle gravité, laquelle n’a été portée ni devant les juridictions suprêmes européennes ni au sein de leurs organes internes. Il sera donc difficile aux autorités d’un autre Etat membre de la reprendre à leur compte en allant jusqu’au point de renverser la présomption établie par le protocole et de la confiance mutuelle entre Etats membres. Bien au contraire, l’unanimité des déclarations des représentants des autres Etats membres comme des institutions de l’Union s’est attachée depuis le début de la crise à souligner la nécessité de respecter le cadre légal national ainsi contesté.

b. C’est donc sur le terrain pénal que la suite de la partie se jouera. Avec la convocation à Madrid de l’ex-président et de treize de ses ministres par une juge d’instruction de l’Audience nationale, saisie par le parquet espagnol qui a requis des poursuites notamment pour « rébellion et sédition », chefs passibles respectivement d’un maximum de 30 et 15 ans de prison. Mettre en cause la partialité de la juridiction espagnole et son mode de fonctionnement nécessitera des arguments forts qu’aucune juridiction européenne n’a jusqu’alors établi, même en des cas autrement dramatiques.

Car pour le reste, et sous couvert de l’intitulé exact de l’émission inévitable du mandat d’arrêt européen qui suivra le refus annoncé de déférer à cette convocation judiciaire, le scénario est écrit. La décision-cadre 2002/584 établissant le mandat d’arrêt européen est inflexible : « rien dans la présente décision-cadre ne peut être interprété comme une interdiction de refuser la remise d’une personne qui fait l’objet d’un mandat d’arrêt européen s’il y a des raisons de croire, sur la base d’éléments objectifs, que ledit mandat a été émis dans le but de poursuivre ou de punir une personne en raison de son sexe, de sa race, de sa religion, de son origine ethnique, de sa nationalité, de sa langue, de ses opinions politiques ou de son orientation sexuelle, ou qu’il peut être porté atteinte à la situation de cette personne pour l’une de ces raisons ». Malgré le libellé peu clair du considérant n° 12 de la décision-cadre 2002/584, celui-ci invoque l’hypothèse d’un refus d’exécution d’un mandat d’arrêt européen s’il y a des raisons de présumer que la personne est persécutée pour ses opinions politiques. On remarquera d’une part qu’il s’agit d’une disposition non contraignante et d’autre part que la partie contraignante de la décision-cadre ne formule aucun motif de cette nature empêchant la coopération et donc l’exécution du mandat dans ces cas, hors les hypothèses des articles 3 et 4. Son article premier se borne à rappeler que « la présente décision-cadre ne saurait avoir pour effet de modifier l’obligation de respecter les droits fondamentaux et les principes juridiques fondamentaux tels qu’ils sont consacrés par l’article 6 du traité sur l’Union européenne ».

Et il est vrai à cet égard que la jurisprudence de la Cour de justice, évoquée à plusieurs reprises dans ces colonnes, confirme la rigueur de la force obligatoire de l’exécution d’un mandat. Ceci vaut sans exception, dans le sens où la Cour a considéré les raisons/motifs de refus prévues par la décision-cadre comme exhaustives (voir spécialement affaire C‑192/12 PPU West, pt. 55; affaire C‑399/11 Melloni, pt. 38). A la lumière de la jurisprudence dans les affaires Aranyosi et Caldararu, une certaine atténuation du principe établi apparait admissible si l’exécution implique une violation grave d’un droit fondamental bénéficiant d’une protection absolue, tel que la dignité de la personne humaine. Il semble difficile d’imaginer, au cas où la question serait adressée à la Cour de justice, que celle-ci puisse parvenir à intégrer la législation de l’UE en identifiant une raison supplémentaire pour cette hypothèse, la logique de l’avis 2/13 devrait alors être renversée et, en fait, la présomption même de non-octroi de l’asile.

En revanche, et pour ce que l’on en sait à travers la presse, les infractions pour lesquelles un mandat d’arrêt européen pourrait être émis (rébellion et sédition ?) contre M. Puigdemont ne semblent pas figurer sur la liste positive visée à l’art. 2, par. 2 de la décision cadre qui permet de procéder à une remise même en l’absence de double incrimination. Par conséquent, l’État d’exécution que serait la Belgique pourrait soumettre la remise à la vérification que les infractions couvertes par le mandat d’arrêt européen émis par l’Espagne soient également des infractions pénales en droit belge (art. 2, par. 4, et art. 4, par. 1, de la décision cadre).

Le scénario judiciaire risque donc, par l’automaticité de sa réponse, d’écarter toute hypothèse de refuge, de négociation ou autres compromis que le droit de l’extradition, hier, permettait encore. Là encore, prendre la décision de déférer à la demande de remise impliquera de procéder sous le feu des caméras à une arrestation pour y parvenir … Lourde responsabilité à prendre dans une coalition gouvernementale belge fragilisée sur la question nationaliste…

Sauf à croire qu’il n’y a finalement là que faux semblant, épisode nouveau d’une guerre de communication accréditée par la proximité de la consultation électorale en Catalogne. Jouer la carte de « l’exil » comme aux heures les plus noires, victimiser l’acteur principal de la crise, dénoncer la poursuite étatique en la discréditant dessinent les ressorts à peine dissimulés d’une stratégie dont nul ne sait si elle sera payante, pariant qu’elle parviendra à convaincre les hésitants. Donner en spectacle l’arrestation et l’emprisonnement ou même leurs simples éventualités permettra de prendre ainsi chacun à témoin de la justesse de la cause défendue. La brièveté des délais d’exécution du mandat d’arrêt européen, deux mois en vertu de l’article 17, pourrait alors pousser les uns ou les autres à une véritable course de lenteur pour l’éviter avant des élections cruciales …

Un seul enseignement mérite alors d’en être tiré, à ce stade de la crise. Son théâtre n’est plus national mais il est européen, faisant émerger un paradoxe imprévu mais dont il faudra tirer les leçons. S’il est banal chez les souverainistes de prétendre que l’Union a pu affaiblir ses Etats membres, la crise catalane et son déroulement révèlent très exactement l’inverse. D’abord car l’attrait européen et le risque de devoir s’en priver, comme nous l’avons démontré, constitue une puissante barrière défensive pour le maintien au sein de l’Etat que l’on est tenté de quitter. Ensuite car l’Union, ses dirigeants et son droit, ainsi pris à témoin par le choix des nationalistes d’européaniser la crise pour espérer la dénouer, s’avèrent être les premiers défenseurs de l’intégrité territoriale d’Etats membres. Ceux-ci se découvrent là une alliée inattendue. Ont-ils aussi compris qu’ils partagent désormais avec elle le choix de la décision finale sans en demeurer les seuls maîtres ?