Rodrigo Ballester directs the Center for European Studies at the Mathias Corvinus Collegium (MCC) in Budapest. A former European civil servant from the College of Europe, he was notably a member of the cabinet of the Commissioner for Education and Culture from 2009 to 2014. He is also a lecturer at Sciences Po Paris.
Emmanuel Macron has just presented in Strasbourg the main lines of the French Presidency of the European Union. In the eloquent tone of the great days, he unfolds an ambitious program, delivers a political and divisive speech and multiplies barely veiled allusions to Hungary and Poland. Far from the role of unifier and arbiter attributed to "European presidents", Macron presents himself as a champion of European integration and, with surprising zeal, of the rule of law.
The legal concept in itself is consensual, the political use that some make of it and which has unleashed passions for years, is much less so.
A political uproar which harms discernment and understanding and which stifles a reality that is nevertheless difficult to hide and which is an integral part of the current tensions: in terms of the rule of law, despite its voluntarism, the European Union in general and the European Court of Justice (ECJ) in particular are far from beyond reproach.
That a subject as technical and arid as the rule of European law finds its way into the presidential campaign for a long time says a lot about the distrust aroused by the legal relations between the EU and several of its Member States.
The head-on clash between the Union and the Polish judges is in fact only the tree that hides a forest of generalized discontent towards this court.
Unease reflected in each of the following points.
If the rule of law is above all respect for the rules of the game, how not to be offended that the ECJ cheerfully circumvents this essential principle with flawed interpretations?
Rodrigo Ballester
The first has to do with the primacy of European law, or rather...the principle of conferring powers.
Let's be clear, apart from primacy over national constitutions (a dogmatic position that the ECJ has maintained for half a century and that many constitutional courts, notably the German one, have openly challenged) primacy is not really a matter of debate .
Everyone agrees that European law would have no legal value if each Member State could unilaterally unravel it as it sees fit after adopting it in Brussels.
Primacy is therefore self-evident within the framework of European competences.
On the other hand, it clearly makes people cringe when the Union goes beyond them and encroaches on national prerogatives, which many courts criticize the EU in general and the ECJ in particular.
Is right.
Its case law abounds with “one-way European” interpretations and reasoning based on variable legal bases.
The interpretation of the directive on working time in the army is one example among many others.
A list that continues to grow, including in family law, as shown by a recent judgment obliging Bulgaria to recognize the filiation of a child from a homosexual union, whereas Bulgarian law only recognizes the status of mother to biological mothers.
Despite the very real risk of a "hold-up" of national powers, this judicial activism is an assumed trademark that does not go unnoticed.
Here, in short, is what Karlsruhe sharply recalled in June 2020, warning against "
legal interpretations which would amount to amending the Treaty or extending the competences
" of the EU to the detriment of a cardinal principle of European law : any competence not explicitly conferred on the EU belongs to the Member States.
If the rule of law is above all respect for the rules of the game, how not to be offended that the ECJ cheerfully circumvents this essential principle with flawed interpretations?
The ECJ enjoys an absolute monopoly at European level.
It is at the same time supreme, constitutional, administrative or international court while being the one and only jurisdiction to have the last word on European law.
Rodrigo Ballester
Second point, the solitary position of the ECJ and the exorbitant power that results from it.
While at the national level the supreme judicial power rests with several judicial bodies, the ECJ enjoys an absolute monopoly at the European level.
It is at the same time supreme, constitutional, administrative or international court while being the one and only jurisdiction to have the last word on European law.
A potentially harmful concentration of power that is not exactly a paragon of respect for the rule of law.
Third point and even more worrying: the ECJ is the only court on the continent not to be subject to the jurisdiction of the European Court of Human Rights.
And for good reason, it itself blocked the accession of the EU to this Convention in 2014 even though the Treaty obliges it to do so and all the parties had reached an agreement!
A consensus which did not prevent the ECJ from sabotaging accession, moreover by invoking arguments which above all betrayed its concern to preserve its prerogatives.
If a citizen can sue his own country in Strasbourg, he will not be able to do the same with the European institutions.
Rodrigo Ballester
This blockage is not insignificant, far from it.
If a citizen can sue his own country in Strasbourg, he will not be able to do the same with the European institutions.
A very real denial of justice when the very questionable legal basis invoked by the EU to call into question the legitimacy of the Polish judicial system rightly recommends that "
Member States establish the means of redress necessary to ensure effective judicial protection in the areas covered by Union law
".
A situation that is all the more regrettable as access to the ECJ for natural and legal persons is an obstacle course due to the very strict conditions defined… by the ECJ itself!
Here we reach heights of hypocrisy that are difficult to defend: for Luxembourg to attack the Polish judicial power with virulence by invoking the duty to establish the necessary means of redress, it is the hospital that does not give a damn about charity.
Read alsoRule of law: decision on the appeal of Warsaw and Budapest on February 16
In short, gaps and inconsistencies that weaken the rule of law instead of strengthening it.
Which is regrettable, because this principle and the rules that flow from it are unavoidable and the EU is right to promote them.
This principle is a pillar of Western civilization and one of the cornerstones of the Union's legal system.
All the more reason not to make a political weapon out of it, to implement it with the required rigor and objectivity and, above all, to show oneself irreproachable by first sweeping in front of one's door before zealously stepping up to the plate, and so avoid violating the principles and rules that one claims to defend.