Revue Européenne du Droit
'We face a systemic problem rather than isolated violations of European law' — a conversation with Didier Reynders
Issue #3
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Issue #3

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Didier Reynders

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

HP and VR: In a decision rendered on October 7, 2021, the Polish Constitutional Tribunal ruled that a part of primary European law is unconstitutional in terms which would suggest that the primacy of European law will no longer be recognized in that jurisdiction. Now, a few months after the crisis caused by the ruling from the court in Karlsruhe which called into question the ECB’s public debt purchasing program, what is your reaction to this decision?

Living in a Union implies that, above all,  Union’s law is applied equally everywhere. A Polish, French, or German judge is also a European judge who is therefore tasked with enforcing European law and, in case of doubt about its interpretation, to consult the Court of Justice of the European Union (CJEU), the only authentic interpreter of European law and the only authority able to judge whether a European institution is in violation of European law.

The primacy of European law over national law — including constitutional provisions — and the binding nature of CJEU decisions have been asserted on multiple occasions. But attempts to question it are not specific to Germany yesterday or to Poland today. We were already highly concerned when the French government, in writings submitted to the French Conseil d’État concerning the legality of data collection and retention systems, invited the court to conduct an ultra vires review deeming the CJEU’s La Quadrature du Net ruling to be inconsistent with the allocation of competences between the European Union and its Member States, and therefore to ignore it. In its decision, the Conseil d’État refused to follow this path and, adhering to CJEU precedent, asked the government to return in six months with a new law compatible with European law 1 . We also have concerns about the situation in Romania, where a decision from June 8, 2021, has raised similar issues 2 .

The particularity of the Polish case lies in the fact that it is the primacy of European treaties themselves which have been directly called into question, and not that of secondary law or decisions from one of the European institutions. It should also be noted that this decision follows a request submitted by the Polish Prime Minister — and therefore at the request of the government — and this in a context where the Commission could already express its reservations in regard to the independence of the Polish Constitutional Tribunal. It is this political aspect which is the second particularity of the Polish case.  

HP and VR: The Polish government does not seem to have the intention of beginning formal proceedings to leave the Union, which would go against the opinion of a large majority of the Polish population. And yet, if the Constitutional Tribunal’s decision is applied to the letter, Poland already seems to be disconnected from the European legal order. Is this a case of legal ‘Polexit’?

Indeed, the Polish government has never shown willingness to activate the treaties to start the process of leaving the Union. There is also not much demand among the Polish population since most surveys show that around 80% of the population would like Poland to remain in the Union.

In regard to the Constitutional Tribunal’s ruling, I wouldn’t necessarily say it is a legal ‘Polexit’, but I would emphasize the fact that there is a risk that the functioning of the European Union as a whole would be called into question. It is therefore up to the entire Union — and in particular the Commission as it is the guardian of the treaties — to react and sort out the Polish situation as has been done, often successfully, in many other cases in the past.

Today we face a systemic problem rather than isolated violations of European law or concerns regarding the respect of rule of law principles, fundamental values, or democracy. For individual cases, we are easily able to enter into a dialogue with the Member State in question and the response is often to welcome our comments and to try to improve the situation by making the necessary reforms. Today, however, we feel that there is a more systemic willingness to damage the independence of the Polish judiciary and even, in some ways, to damage the validity of the European treaties, which is not acceptable to the Commission and does not seem to be acceptable to the other European institutions either. This unity is a good thing.

In this respect, the European Commission does not lack the tools to defend the very foundations of the Union and its capacity to effectively pursue different policies throughout Europe with basic principles that must be respected, and which underlie our institutional structure. European law must be applied in the same way everywhere. Yet the Polish Constitutional Tribunal’s ruling suggests that European law could be applied ‘à la carte’, and that it could therefore be possible to choose at any given moment which provisions would be applicable, and which could be disregarded for their alleged incompatibility with national constitutional law.

Such a development would not only be very dangerous for citizens — first and foremost Polish citizens, who, for example, could be denied a number of protections provided for by the European treaties which could be disregarded for one reason or another by Polish authorities — but it would also be a tremendous obstacle to the functioning of the internal market. Investors must be certain that European law is applied in the same way in the Member State in which they intend to invest as in the rest of the Union, as well as being certain that any legal disputes would be judged by independent, qualified, and effective courts — and this point is a second area of concern regarding the state of the Polish judiciary beyond its Constitutional Tribunal.

HP and VR: Concretely, what are the other tools available to the Commission to respond to the current situation?

We are absolutely determined to use all necessary measures to ensure that the principles that form the very basis of the Union, such as the primacy of European law and the binding nature of CJEU rulings, are respected.

But I would first like to stress that the timeline of social networks and political reaction is not the timeline of law. When a ruling such as that of the Polish Constitutional Tribunal is handed down in the morning, we cannot lodge a complaint in the afternoon and obtain a decision from the CJEU in the evening, even though we always respond immediately in order to protect the foundations of the Union. This is a bit frustrating, of course, but if we want to uphold respect for the rule of law and the principles that stem from it, we must set an example ourselves. It is therefore our duty to take the time necessary to build our legal arguments on solid and complete bases before engaging — as European procedure require us to do — in a dialogue with the Member State. It is only at the end of this process that we can bring an appeal before the CJEU or ask the Council to issue a statement. Given the current circumstances, the stakes are too high to risk failing due to poor preparation of the case and of our arguments.

Coming back to the available tools, there are a number of them, and they can be used simultaneously. These are infringement proceedings, the ‘conditionality’ regulation, or sanctions proceedings as laid out in Article 7 of the Treaty on European Union. It is our duty to ensure that all the mechanisms at our disposal are as effective as possible, whether we are acting before the CJEU, the European Council, or within the Commission’s own areas of authority, for example in relation to decisions on financing.

I would like to note that we have been involved in proceedings before the CJEU concerning the independence of the Polish judiciary for quite some time now. We were particularly very concerned with the disciplinary proceedings that had been introduced into Polish legislation and the provisions on the waiver of immunity for judges which we have already challenged before the Court on two occasions. The CJEU, at our request, even ordered Poland to adopt interim measures pending a final judgment and recently ordered Poland to pay a penalty for every day of non-compliance with the prescribed interim measures 3 .

Financial tools are also very effective. To give a recent example, ‘LGBT ideology-free zones’ were enacted in a number of Polish municipalities and provinces in 2019, which declared themselves as being free from the presence of the LGBT community. This justifiably elicited very strong reactions as it is blatant discrimination and in clear violation of the Charter of Fundamental Rights. As a response, six of these municipalities were excluded from participating in Twinned Towns programs with other European municipalities and thereby lost access to the European funding linked to this program. More significantly, this year we made the decision to withdraw funding, under the cohesion fund, if the potential beneficiary adopts these types of discriminatory measures. Subsequently, a number of Polish provinces and municipalities reversed their positions and repealed these declarations regarding the exclusion of the LGBT community from their territory. This means that financial tools are useful and, even for very sensitive issues, can be effective. I am emphasizing this point because we will be regularly considering the use of these financial tools, independently of implementing a more specific mechanism.

Now regarding the famous ‘conditionality’ — which gives the European Union the possibility of suspending, reducing, or restricting access to European funding in the event of a violation of the guarantees of the rule of law in the use of funds — it should be remembered that the 2020/2092 regulation which allows for this has only been in effect since January 1st, which we sometimes forget. Since the beginning of the year, we have been trying, together with Johannes Hahn, the European Commissioner for the Budget, to identify the factual elements which allow us to ascertain that the conditions are being met in certain Member States, or that we at least have questions about the situation. This new budget protection mechanism, which is completely inclusive and open, also requires that we build the strongest case possible before seeking its implementation. We have therefore been working hard recently, together with the Parliament and the Council, to finalize clear guidelines on the potential implementation of the conditionality mechanism. All the institutions are unanimous in their desire to protect the final beneficiaries of European funds; it would be unacceptable, for instance, for farmers or associations that defend and promote the rule of law to be deprived of funding by implementing this mechanism to sanction a government 4 . I am also anticipating a response from the CJEU before the end of 2021 on appeals by the Hungarian and Polish governments challenging the ‘conditionality’ regulation, which should provide us with more clarity on the matter 5 .

Beyond that, in her State of the Union address, President von der Leyen very clearly stated our willingness to start the process through written proceedings.

HP and VR: In light of all this, and particularly the numerous attempts to challenge the primacy of European Union law and the respect of rule of law principles, would you agree that the Union is experiencing an existential crisis?

We must keep in mind the historical context of the current situation. In recent times we have devoted a lot of time and resources to verifying the progress made in economic convergence and in proper budgetary management throughout the Union. This has resulted in a series of positive developments, notably in response to the financial and sovereign debt crises. The priority at the time was to put in place effective tools to better oversee the banking and insurance sectors and the financial markets in general, with an increased role for the European Central Bank. The debate surrounding European values was almost non-existent during this period; in other words, the Copenhagen criteria were receiving less attention than the Maastricht ones. There was almost the impression that when new Member States were accepted into the Union or the eurozone, the most important thing was to ensure that there would be no budgetary misconduct and that all the necessary economic reforms were implemented. Respect for democratic principles, fundamental rights, and the rule of law was considered as a given.

We can see today that the situation is completely different. Beginning in 2016, the Commission introduced a review of adherence to the principles of the rule of law in each of the Member States, with a first report on the matter being published last year and the second in July of this year. At the same time, the CJEU and the ECHR have been increasingly issuing rulings that define, incrementally, what is meant by the rule of law and judicial independence. The European Parliament has also been committed to this approach, mostly since 2016. This is a recent realization within all European institutions and has certainly been accelerated by worrying developments such as the constitutional reforms in Hungary or the participation of extremist parties in the governments of certain Member States, such as Austria.

That being said, I do not believe at this time that the Union is experiencing an existential crisis. Of course, we are facing challenges to the Union’s foundations through certain actions or decisions, but what is encouraging is that a large number of Member States, as well as the European institutions, have immediately mobilized in response to demand that the fundamental principles of the Union be adhered to. This realization is essential today because if we do not respond quickly, the future will indeed be threatened; an ‘à la carte’ Union is not a Union.

HP and VR: But what can be done to avoid this situation?

Recent events demonstrate that we are experiencing now just the opposite.  I will use the example of health policy. Since the beginning of the Covid-19 crisis, many people have been wondering where Europe has been. Yet the Union has virtually no authority in this area. But Europe was not absent. Over the course of weeks and months, we successfully built a true health, research, and vaccine development policy. Today, we have budgets that will be made available at the European level to promote a common health policy. The same conclusion holds true when considering the current discussions on strategic autonomy, the common defense and security policy, or even the desire to make Europe a global actor in the microprocessor industry; there is a real expectation that policies at the European level must be strengthened.

However, for this strengthening to be possible, we must ensure that the crisis of values in certain Member States — which, it cannot be denied, is very serious — does not result in a contagion that would threaten the very survival of the Union in the long term. Of course, we cannot compare the current situation to the domino effect of the financial crisis several years ago; we are nowhere near that kind of danger. But we cannot afford to delay our immediate reaction to troubling situations with all available legal and financial tools.

HP and VR: Apart from Poland and Hungary, do you have the impression in your daily practice that the rule of law is a notion which is shared and understood in the same way throughout the Member States?

If we look at the situation throughout the world, it is true that there are very clear differences in the way different jurisdictions understand these values, at least in relation to what is meant by ‘rule of law’ in Europe. Of course, if we look too closely at the situation elsewhere, we might tell ourselves that, overall, Europe is quite a good pupil, which is confirmed by various international rankings in this matter. But this does not mean that we are exempt from ensuring that the principles of the rule of law, fundamental rights, minority rights, and democratic principles are respected within the Union on a daily basis.

When preparing the annual report on the state of the law in the Union, we are also faced with the problem of defining the notion of rule of law itself. The work we have done on the standards used in the report are direct testaments to the fact that common criteria do indeed exist.

There are, of course, differences from one Member State to another. Let’s take the example of the democratic system: we have twenty-seven different electoral systems. I am not sure that everyone in Germany can explain how the Bundestag is formed, even during elections. However, we have come to accept that even though we have different cultures, different historical paths that have led to this or that parliamentary or presidential system, elections by majority or proportional vote, there is a sort of family resemblance between these systems, which are all democratic. It is the respect of a certain number of fundamental principles that counts and that allows us to recognize the common identity despite the diversity of national specificities. We would therefore never ask that political or judicial systems be perfectly identical; it is enough that they respect the values of the Union. The same is true when it comes to racism and xenophobia. The Scandinavian countries traditionally protect freedom of expression and do not want to take legal measures as strict as we advocate, which brings about ongoing debate. Finally, different cultures lead to different systems, but this diversity does not pose a problem as long as the systems are equivalent, which is to say that they truly respect our fundamental values.

To return to the guarantee of respecting the principles of the rule of law in the Union, we must remember that the primary aim of these principles is to protect the citizens in each Member State. If the rule of law is not respected, then all other essential rights of European citizens will also suffer. It is this awareness that led us to the Report on the Rule of Law in the Union as well as the twenty-odd debates in which I have already taken part before national parliaments to explain our conclusions and recommendations.

We are engaged in a pedagogical work that joins parliaments, governments, and members of civil society. In order to strengthen this dialogue, I recently asked the European Union Agency for Fundamental Rights (based in Vienna) to work on a model for increasing these exchanges with civil society organizations. I am also deeply convinced that the rule of law, fundamental rights, democracy, as well as climate awareness and the prevention of hate speech, are all subjects that should be included in school curriculums throughout the Union. It is vital that European citizens understand from an early age the importance of these different issues in their daily lives. It should be explained to them, for example, why access to an independent and impartial — and if possible efficient — judiciary is indispensable for the protection of all other rights they enjoy. To give another example, if the independence of the media is not guaranteed, they will never be able to form their own opinions.

The solution to the problems we face today in this regard will undoubtedly come from the younger generations whose extraordinary mobilization on the climate issue, for example, is obvious. We may or may not agree with the methods used, but this mobilization cannot be ignored when it comes to defining the actions of States or the Union. At the same time, it is our aim to convince the younger generations that in all areas which are important to them, respect for our values, the democratic process, and the rule of law are essential in order for them to express themselves and to have a real influence on the political choices which will shape the world of tomorrow.

HP and VR: Beyond its importance for the daily life of European citizens, respect for the rule of law seems to be intimately linked to a certain projection of European regulatory power abroad. In your perspective, does the strength and longevity of the now famous ‘Brussels effect’ depend as much on the significance of the European market as it does on succeeding in this fight to ensure that fundamental values are truly shared across the Union?

The work done within the Union is an essential prerequisite for any European attempt to exert influence on the course of world affairs. If we do not do the work at home, so to speak, it will be very difficult for us to demand reforms from our neighbors.

The work we are doing in the 27 Member States will allow us to apply the same strict analysis to the candidate countries in the Balkans and to assert in good faith that respect for our fundamental values is a sine qua non condition for membership. When we meet with the leaders of Georgia and Moldova, all the reforms we advocate for in the areas of justice and the rule of law are a direct reflection of the work we are also doing within the Union. It was the same situation when we traveled with Commission members to Addis Ababa to meet with members of the African Union Commission.

I am convinced that European influence stems from our ability to project an attractive image, and that when situations deteriorate somewhere in Europe, the image of Europe as a whole suffers. I fear, however, that many Europeans do not realize that the situations we have been talking about — as well as migration crises and other dramatic situations — are never isolated phenomena in particular Member States; for non-Europeans, it seems to be the whole European Union that is undergoing a major crisis.

The work that must be done within the Union before we can speak with a credible voice outside the Union should therefore be taken very seriously. For example, the GDPR made it possible to set up a personal data protection system in Europe. This is not only a concern for Europe, it is shared by many other jurisdictions, and so this regulation has also provided a model showing how the protection of data and privacy of individuals can be ensured. The regulation is not strictly extraterritorial, but it can have a contagious effect. More and more states around the world have put comparable tools in place, directly inspired by our regulation. The work that we are doing at home in this area, I will not say leads by example, but at least inspires confidence in the possibility of protecting personal data in today’s world. The Green Deal, which is one of the Union’s most significant initiatives, is a new opportunity to try to create a global mechanism from what we do in the Union.

Without very serious internal work, we would not have the capacity to bring partners on board and therefore have influence on defining standards at the international level. I must acknowledge that the return of the United States — or at least the willingness of the new administration to work in the spirit of multilateralism — helps to strengthen our influence when the values we want to defend are shared by the United States.

HP and VR: European soft power therefore derives in part from its ability to export its normative model. Is this component of projection truly part of what the Commission thinks about when it works, for example, on the regulation of the digital economy, or is it an unexpected consequence of a work which is mainly focused inwards?

Those in the Commission who say they don’t really think about it are a bit like Molière’s Monsieur Jourdain — they are participating in the projection of European normative influence without knowing it. When we try to define the best possible rules within the Union, we also believe that these rules would not be absurd outside the Union and could therefore also serve as international standards. This is clearly proven when it comes to the protection of our fundamental values, where this normative projection was an objective in itself. We have always considered that what we do within the Union allows us to maintain credibility outside the Union.

For example, the increased number of deaths in the Mediterranean compels us to review our migration policy, not least because it would be difficult for us to point the finger at external humanitarian disasters if we ourselves do not do enough to put an end to the dramas in the Mediterranean. The Commission has therefore put a new migration pact on the table in an attempt to redefine the way in which this issue is dealt with. Setting a good example is indispensable if we want to require anything of others.

Another example is the death penalty. We have succeeded in making sure that this punishment disappeared both in the Union and in the Council of Europe, and it is no longer an issue today. Even though there was a debate in Turkey a few years ago, the death penalty has not been reintroduced. Only Belarus still uses it and is, therefore, not part of the Council of Europe. Without first achieving complete abolition in Europe, we would not be credible in discussing it elsewhere. This is yet another example where Europe has taken a leading role, but only because we have successfully aligned the positions of all the Member States, and even the whole continent, with one exception.

HP and VR: This discussion leads us to the question of ‘European identity’. Would it be fair to say that the strength of its values, as embodied in its law, is the only way for Europe to define itself and to maintain its role in a globalized world? In other words: could European identity ultimately be a normative identity?

I believe that the treaties are very clear in this respect. Article 2 of the Treaty on European Union leaves no doubt that our fundamental values are integral to European identity. Furthermore, in order to become a member of the Union, candidate countries must meet the conditions for adherence to these principles, and oversight in this regard has been increased in recent years.

This core encompasses a range of values and standards that we believe are universal — even if they are not yet universally accepted, such as democracy — and our ambition is to promote them. This is done through certain, specific regulations concerning the protection of fundamental rights, privacy (such as the RGPD), or the rule of law.

We also do this by addressing issues that sometimes seem less related, but which share the same exact logic. I am thinking in particular of the work to foster mutual trust, whether between citizens and public authorities, or between consumers and companies. Our regulations in a variety of areas serve this end. This is the case when we take an interest in the protection of privacy with regard to companies, but also with regard to public authorities and intelligence services. This is also the case when we work with companies within the framework of the Green Deal to support them in their desire to create an economy that is not only more sustainable, but also more respectful of rights; I am thinking in particular of the due diligence needed to avoid the use of forced labor in the production chain in certain regions of the world — Xinjiang in China, for example — or child labor.

Along the same lines, by the end of this year I hope to be able to present, together with Thierry Breton in his role as Commissioner for the Internal Market, an initiative on sustainable corporate governance. This would include a change in the definition of social interests based on the model of the Pact law in France and a duty of vigilance for companies in their operations and supply chain relating to risks, potential negative impacts on the environment, biodiversity, climate change, and also human rights.

Yet what are we doing through these efforts? When we take an interest in these matters, or in how platforms fight online hate speech, or in protecting consumers from dangerous products, or in bias when it comes to artificial intelligence, or in fighting fraudulent behavior, our ultimate goal is to strengthen trust between all parties. We are indeed trying, as you point out, to ground ourselves in our core values to show European citizens that the Europe we are building is a place of trust.

Europe is therefore stronger and can assert its identity when its actions and its normative framework, in any given sphere, embody and protect its most fundamental values and rights. This is the whole purpose of our actions.

Notes

  1. Editor’s note: The judgment of the Conseil d’Etat French Data Network et al. dated 21 April 2021 (nos. 393099, 394922, 397844, 397851, 424717 and 424718) follows the CJEU judgment La Quadrature du Net dated 6 October 2020, in which the CJEU considered that certain generalized and undifferentiated personal data retention obligations provided for by French law for reasons of national security, could only be compatible with European law under strict conditions and limited circumstances, which were not met in the case at hand. In its judgment of 21 April 2021, the Conseil d’État rejected the French government’s argument to review the legality of the CJEU’s decision, considering that it was not its task to ‘ensure that the Court of Justice itself complied with … the division of powers between the European Union and the Member States’. Nevertheless, the Conseil d’Etat  asserts with unprecedented force the primacy of the French Constitution over European law, and stresses that a European directive or regulation that ‘would have the effect of depriving one of these constitutional requirements of effective guarantees’ would be set aside ‘to the strict extent that respect for the Constitution so requires’. This safeguard clause was not applied in this case. See also, Loïc Azoulai and Dominique Ritleng, ‘L’État, c’est moi’. Le Conseil d’État, la sécurité et la conservation des données’, RTD eur. 2021. Dalloz.
  2. Editor’s note: In a decision dated 18 May 2021 concerning a series of Romanian reforms relating to the organization of the judiciary and the disciplinary and liability regime for magistrates (joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-335/19 and C-397/19), the CJEU stated, inter alia, that the principle of primacy of Union law precludes national legislation of constitutional rank which deprives a court of a lower rank of the right to leave unapplied, of its own authority, a national provision falling within the scope of Decision 2006/928 (establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption) and contrary to Union law. By a decision of 8 June 2021, the Romanian Constitutional Court states, on the contrary, that the Romanian Constitution retains its primacy in the domestic order, and Romanian judges cannot review the conformity of the provisions of national law declared constitutional by the Constitutional Court in the light of the European recommendations.
  3. Editor’s note: On 1 April 2021, the European Commission brought an action for failure to fulfill its obligations against Poland before the CJEU, arguing, among other things, that a Polish law was notcompliant with EU law in that it prohibited national judges from verifying that the courts responsible for applying EU law in Poland met the conditions of independence and impartiality (Case C-204/21). Pending the Court’s ruling that will bring the case to an end, the Commission asked the Court to order Poland to adopt a series of interim measures, which the Vice-President of the CJEU granted by an order of 14 July 2021. Upon request submitted by the Commission on 7 September 2021, the Vice-President of the CJEU subsequently found that Poland had not complied with its obligations under the order of 14 July 2021, and ordered Poland to pay the European Commission a daily penalty payment of EUR 1 million for each day of delay or until final judgment is delivered in Case C-204/21.
  4. Editor’s note: In a resolution dated 8 July 2021, the European Parliament called on the European Commission to apply the cross-compliance regulation immediately and in full, considering that the text of the regulation was clear and that its application needed no further interpretation. With regard to the drafting of the guidelines, the Parliament called on the Commission to clarify in particular that violations of the rule of law in a Member State resulting from events occurring before 1 January 2021 do fall within the scope of the regulation as long as their effect is still ongoing, and to take account of the fact that cases of persistent violations of democracy and fundamental rights may have an effect on the protection of the Union’s financial interests. Finally, the Parliament stresses the importance of protecting the interests of final recipients and beneficiaries of funding in the implementation of the regulation.
  5. Editor’s note: The governments of Poland and Hungary have each filed an application with the CJEU to have the cross compliance mechanism annulled on the grounds that the rules are confusing, unpredictable and devoid of legal basis. Hearings before the CJEU began on 12 October 2021.
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Didier Reynders, ‘We face a systemic problem rather than isolated violations of European law’ — a conversation with Didier Reynders, Dec 2021,

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