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The Rule of Law as a Constitutional Principle of the European Union

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The Rule of Law as a Constitutional Principle of the European Union

    THE JEAN MONNET PROGRAM

    Professor J.H.H. Weiler

    European Union Jean Monnet Chair

    Jean Monnet Working Paper 04/09

    Laurent Pech

    The Rule of Law as a Constitutional Principle of the European Union

     NYU School of Law ; New York, NY 10012

    The Jean Monnet Working Paper Series can be found at:

    www.JeanMonnetProgram.org

    All rights reserved.

    No part of this paper may be reproduced in any form

    without permission of the author.

    ISSN 1087-2221

    ? Laurent Pech 2009

    New York University School of Law

    New York, NY 10012

    USA

    Publications in the Series should be cited as:

    AUTHOR, TITLE, JEAN MONNET WORKING PAPER NO./YEAR [URL]

    The Rule of Law as a Constitutional Principle of the European Union

    By

     * Laurent Pech

    Abstract: The rule of law is one amongst a number of principles that are together regarded as under-girding the EU polity and common to the EU Member States. This paper first asserts that the rule of law can be accurately described as a ―common principle.‖ A series of ―shared traits‖ are outlined with respect to the three dominant constitutional traditions in Europe (England, Germany and France) and it is argued that these shared traits are sufficiently robust to amount to an identifiable common denominator. The meaning, scope of application and normative impact of the rule of law in the EU‘s constitutional framework is then explored in light of these shared traits. An attempt at distinguishing between the conventional and distinctive features of the EU rule of law is made. This paper suggests that similarly to national experiences, the EU rule of law has progressively and rightfully become a dominant organizational paradigm, a multifaceted legal principle with formal and substantive elements which nonetheless lacks ―full‖ justiciability. However, the EU rule of law also presents distinctive features which reflect the EU‘s original constitutional nature.

     *Lecturer in Law, Jean Monnet Chair in EU Public Law, National University of Ireland, Galway

    (laurent.pech@nuigalway.ie). I am grateful for comments on earlier drafts by Paul O‘Connell, Tom Hickey, Dimitry Kochenov, Randy Peerenboom, Julian Rivers and Brian Tamanaha. I also wish to thank my colleagues at the NYU Jean Monnet Center for their helpful suggestions and good company.

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Table of Contents

1. Introduction

    2. The Rule of Law in the EU Constitutional Framework: Preliminary Overview

    2.1. From Court‘s Dictum…

    2.2 …to a Formalized ―Constitutional‖ Principle

    3. A Principle Common to the Member States?

    3.1 Rule of law, Rechtsstaat and Etat de droit

    3.1.1 The Rule of Law in the English Legal Tradition

    3.1.2 Continental Variations on the Same Theme

    3.2 Unity and Diversity in the National Understandings of the Rule of Law 4. Shared and Distinctive Features of the EU Constitutional Principle of the Rule of Law

    4.1 Shared features

    4.1.1 The Rule of Law as a Foundational Principle

    4.1.2 The Rule of Law as an Umbrella Principle with Formal and Substantive

    Components

    4.1.3 The Rule of Law as a Rule of Law

    4.2. Distinctive Features

    4.2.1 The Rule of Law as a Politico-Legal Benchmark

    4.2.2 The Rule of Law as a Foreign Policy Objective

    5. Conclusion

Annex: References to ―the rule of law‖ in the case law of the EU courts (Sept. 2002-2008)

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    ―If however we confined our observation to the Europe

    of the year 1889 we might well say that in most

    European countries the rule of law is now nearly as well 1established as in England.‖ (Dicey)

    ―[T]he rule of law remains a complex and in some 2respects uncertain concept.‖ (House of Lords)

1. Introduction

    In a landmark judgment, the European Court of Justice famously referred to the European Community (EC) as ―a Community based on the rule of law‖ inasmuch as neither the Member States nor the EC institutions can avoid review of the conformity of their acts with the EC‘s

    3―constitutional charter,‖ the EC Treaty. The Court has ever since continued to view the EC

    Treaty, albeit formally concluded in the form of a ―mere‖ international agreement in 1957, as the

    4constitutional document of a polity based on the rule of law. Remarkably, while the Court‘s

    constitutional narrative has been subject to ferocious criticism emanating from different

    5quarters, the reference to the traditional concept of the rule of law has been mostly welcomed even though this notion has mostly flourished and been theorized in the context of the nation-state. This positive response is not altogether surprising. Since the end of the Cold War, international organizations as well as national governments, regardless of the nature of their economic and political regimes, have been particularly keen to articulate their support if only

    6rhetorical for the rule of law. Indeed, the rule of law, which is regularly equated with the idea

    7of a ―government of laws, not of men,‖ is generally assumed including by the present author

     1th A. Venn Dicey, An Introduction to the Study of the Law of the Constitution (MacMillan, 5 ed., 1897), p. 180. By

    rule of law, Dicey meant here the absence of arbitrary power on the part of the government. 2 House of Lords Select Committee on the Constitution, Relations between the executive, the judiciary and

    Parliament HL Paper 151(2006-2007), p. 12, para. 24. 3 Case 294/83 Les Verts v. Parliament [1986] ECR 1339, para. 23. 4 See e.g. Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat [2008] n.y.r., para. 281. 5 For an analysis of the Court‘s constitutional narrative, see recently L. Pech, ―The Fabulous Destiny of the EC Treaty: From Treaty to Constitution to Treaty again?‖ (2008) 15 Irish Journal of European Law 49. 6 For a set of rather critical studies on the rule of law in Western as well as non-Western legal traditions, see recently P. Costa and D. Zolo (eds.), The Rule of Law. History, Theory and Criticism (Springer, 2007). 7 To recall Chief Justice Marshall‘s celebrated formula in Marbury v. Madison (1803) 1 Cranch 137, p. 163: ―The

    government of the United States has been emphatically termed a government of laws, and not of men.‖ It is less

    known that the phrase ―a government of laws and not of men‖ in fact first appeared in the 1780 Bill of Rights of the Constitution of Massachusetts. Its Article XXX provides that ―In the government of this Commonwealth, the

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     8 This undoubtedly explains why the Court of Justice, in stressing the to be a ―good thing.‖

    importance of the rule of law as a defining element of the EC‘s constitutional character, did not encounter much criticism.

    This widespread support for the rule of law, unfortunately, has not helped clarify the meaning and scope of the Court of Justice‘s formula. Definitional concerns are not, however, a problem peculiar to the EC. Generally speaking, the undeniable high degree of consensus on the rule of

    9law is ―possible only because of dissensus as to its meaning.‖ In what is now known as the

    10European Union (EU), the emergence of such a consensus following the end of the East-West ideological divide, overrode any concern about what the rule of law precisely entails. In their capacity of ―Masters of the Treaty,‖ The EU Member States responded to the increasing and irresistible emphasis on the rule of law by subjecting the EU‘s founding Treaties to several important amendments. Yet in a good example of ―why make it simple when it can be

    complicated,‖ the Member States have persistently refused to ―constitutionalize‖ the Court of Justice‘s innovative phrasing, i.e. ―Community based on the rule of law.‖ Instead, in what is the most important Treaty provision referring to the rule of law, Article 6(1) of the Treaty on European Union (TEU), recognizes the rule of law both as a principle common to the EU Member States and one on which the EU is said to be founded. To English speakers, the Court of Justice‘s formula and the Treaty provision‘s phrasing may appear largely convergent if not almost identical. This is not so in other languages. When translated, for instance, into German and French, different concepts appear to be used. The notion of ―community based on the rule of

    law‖ is translated by Rechtsgemeinschaft and communauté de droit respectively, whereas the

    Article 6(1) TEU reference to a ―Union founded on the rule of law‖ gives, if literally translated, a Union founded on the principle of ―a State governed by law‖ (Rechtsstaatlichkeit/Etat de droit).

    legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.‖ 8 See however on the ―dark side‖ of the rule of law, U. Mattei and L. Nader, Plunder: When the Rule of Law is

    Illegal (Blackwell, 2008). 9 S. Chesterman, ―An International Rule of Law?‖ (2008) 56 American Journal of Comparative Law 331, p. 332. 10 For didactic purposes, this paper will henceforth generally refer to the ―EU‖ even though, technically speaking, the EU should not be confused with the EC. In a positive development, the 2007 Treaty of Lisbon, not yet ratified, grants exclusive legal personality to the ―Union,‖ meaning that the EU will replace and succeed the EC when (and if) the Treaty of Lisbon enters into force.

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    Notwithstanding this semantic difficulty (the significance of which I address later), the enshrinement of the rule of law in the constitutional rulebook of a supranational polity raises important theoretical and practical questions. This is especially the case regarding the meaning, scope of application and normative impact of this principle. A comparative detour is imperative in order to adequately tackle these issues. It will help us to critically assess to what extent the rule of law as a constitutional principle of the EU (hereinafter: ―the EU rule of law‖) differs, if at all, from how this concept has been understood and applied in the main national constitutional traditions in Europe. One should then be in a position to decide whether the rule of law can be accurately described as a principle common to the EU Member States. This is not to say that the EU rule of law must necessarily be defined and applied in strict conformity with national

    11 As a matter of fact, Article 6 TEU does not formally understandings of the same principle.

    require the EU to rely on national constitutional traditions to interpret the principle of the rule of

    12law contrary to what it does as regards the principle of respect for fundamental rights. This

    paper also rejects the opposite position which advocates ―strict separation‖ between national

    13definitions of the rule of law and the EU definition. Rather, national approaches will provide a

     11 In a remarkable book, Verhoeven argues otherwise: ―The Union cannot define the fundamental principles in an

    autonomous manner. The open-ended juxtaposition (‗… and the rule of law, principles which…‘) contains a double message. It implies that the Union must respect fundamental principles because they are ‗common to the Member

    States‘ and as they are defined by what is common in them. In other words, national constitutional traditions offer both the reason why fundamental principles are to be respected by the Union and a basis for determining what these principles mean in the Union context.‖ A. Verhoeven, The European Union in Search of a Democratic and

    Constitutional Theory (Kluwer Law International, 2002), p. 322. The problem is that he further adds (p. 323) that these principles ―are open-ended categories‖ and that ―there is a marked difference in how these principles are understood in the various Member States.‖ In these conditions, were Verhoeven‘s interpretation correct, the Union would be under a legal obligation to define the rule of law on the basis of common denominator that does not appear to exist. One may therefore contend that Article 6(1) TEU rather requires to interpret the EU rule of law by reference to national legal orders. If no common denominator can be found and this paper will seek to demonstrate

    otherwise the EU is entitled to redefine the meaning and scope of the rule of law to fit the distinct features of its autonomous legal order. 12 Article 6(2) TEU: ―The Union shall respect fundamental rights, as guaranteed by the European Convention for the

    Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result

    from the constitutional traditions common to the Member States, as general principles of Community law.‖ 13 D. Kochenov, ―The EU Rule of Law: Cutting Paths through Confusion‖ (2009) 2 Erasmus Law Review 5, p. 7. In

    this stimulating article, Kochenov does not deny that the definition of the EU rule of law should be guided and inspired by national understandings. Yet the need for a strict separation is defended on the ground that ―it is

    impossible to draw direct parallels between the national legal orders with respect to the precise meaning of the Rule of Law espoused by each system‖ (p. 14) and the author further argues that Article 6(1) TEU fails to recognize the

    ―deep diverging trends existing between the concepts of the Rule of Law in different Member States‖ (p. 21).

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    useful and indispensable benchmark when the time comes to assess the extent to which the EU rule of law has been ―Europeanized.‖ In other words, a detour via national approaches should make it easier to measure to what extent (if any) the EU rule of law has gained an ―autonomous‖ meaning and whether it presents unique features as regards its scope of application and normative effect. Autonomous meaning does not imply, however, unprecedented meaning. National understandings in reality do and should necessarily inform or ―inspire‖ the EU understanding. While EU institutions are entitled to give a ―European sense‖ to the rule of law, it would therefore be wrong to think that they usually do so without regard for a common

    14 especially in the situation denominator in the constitutional traditions of the Member States,

    where the rule of law has been expressly recognized as a principle which is common to the

    15Member States. Even if national understandings were to dramatically differ a point this paper

    will demonstrate to be incorrect the Court of Justice has shown, for instance, with respect to the general principles of Community law, that it can derive these principles from the laws of the Member States even when they are not unanimously recognized, differently understood or diversely applied at the national level. Furthermore, it is well-established that the Court of Justice always ―Europeanizes‖ the legal principles applicable to the Community/Union, i.e. the content of these principles is primarily defined in light of the distinct features and needs of the

    16Community/Union legal order.

     14 Generally speaking, it is important to note that recourse to ―internal‖ comparative law by the Court of Justice, with the primary aim to identify common legal principles and where the laws of the Member States converge, ―has not been drawn upon as an occasional aid to interpretation but internalized as a normal method of interpretation of Community law.‖ N. Walker, ―The Migration of Constitutional Ideas and the Migration of the Constitutional Idea:

    The Case of the EU‖ EUI Working Paper Law No. 2005/04, p. 5, referring to a contribution by a former President of the Court: J. Mertens de Wilmars, ―Le droit comparé dans la jurisprudence de la Cour de justice des Communautés

    européennes‖ (1991) Journal des Tribunaux 37. 15 This is where my approach marginally differs from Arnull‘s call for the identification of an autonomous EU concept as he also suggests that ―[t]he way the rule of law or allied concepts, such as l’Etat de droit or

    Rechtsstaatlichkeit, are understood in a national setting cannot be determinative, as this will be conditioned by a particular legal or historical context and may vary from State to State.‖ A. Arnull, ―The Rule of Law in the European

    Union‖ in A. Arnull and D. Wincott (eds.), Accountability and Legitimacy in the European Union (Oxford

    University Press, 2002), p. 240. National understandings of the principle, although not ―determinative,‖ are crucial elements that do and should necessarily inform EU interpretation of the rule of law and provide useful benchmarks to normatively assess the meaning and scope of this principle in the EU‘s constitutional framework. 16 The Court of Justice‘s principles of interpretation recall the interpretative practice of another European Court, the

    European Court of Human Rights. Indeed, it is not rare for this Court to give an ―autonomous meaning‖ to the European Convention on Fundamental Rights‘ key terms in order to guarantee uniform interpretation and prevent

    states from redefining the scope of their obligations under the Convention. The European Court of Human Rights can hence give the terms a ―European sense‖ which may differ from the meaning they have in the Member States of

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    Before undertaking this study, three caveats are in order. Firstly, as prudently suggested by Craig,

    17a ―health warning‖ is in order for anyone venturing into the area of the rule of law. Not only is

    the modern literature extensive and diverse, ―there is considerable diversity of opinion as to the meaning of the rule of law and the consequences that do and should follow from breach of the

    18concept.‖ In other words, if there is one thing on which all scholars seem to agree, it is that the rule of law is ―an exceedingly elusive notion‖ giving rise to a ―rampant divergence of understandings‖ and analogous to the notion of the good in the sense that ―everyone is for it, but

    19have contrasting convictions about what it is.‖

    Secondly, the rule of law is presented in this paper as a constitutional principle of the EU. Whilst it is true that the EU is formally based on international agreements, it has become common

    20among scholars and judges to view the EU‘s founding Treaties as its material ―Constitution‖

    21and to describe the key legal principles of this ―new legal order‖ as constitutional in nature. If

    the Court of Justice has yet to unambiguously refer to the rule of law in such terms, one may wish it does not refrain from doing so any longer as it is clearly a principle of a fundamental and

    22compelling nature stemming from the common European legal heritage and which aims to

    regulate the exercise of public power.

    the Council of Europe. However, as pointed out by Brems, the independent character of autonomous concepts should not be overstated, ―because the Court frequently relies to a certain extent on the common denominator in the legal traditions of the states parties when attributing autonomous meaning.‖ E. Brems, Human Rights: Universality

    and Diversity (Martinus Nijhoff, 2001), p. 396. 17 See P. Craig, ―The Rule of Law,‖ Appendix 5 in House of Lords Select Committee on the Constitution, Relations

    between the executive, the judiciary and Parliament, HL Paper 151(2006-2007), p. 97. 18 Ibid. 19 B. Tamanaha, On the Rule of Law. History, Politics, Theory (Cambridge University Press, 2004), p. 3. 20 Additional important remark, the notion of EU ―Constitution‖ will regularly be used here to globally refer to the

    TEU and TEC. While the Treaty of Lisbon does not repeal the two treaties, it substantially reorganises their contents and in doing so, considerably reinforces the constitutional nature and coherence of the EU‘s treaty arrangements.

    See Pech, supra n. 5. 21 See recently Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat [2008] n.y.r., para. 285: ―[T]he

    obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights…‖ 22th H. Schermers and D. Waelbroeck, Judicial Protection in the European Union (Kluwer Law International, 6 ed.,

    2001), p. 28, para. 54. For a more exhaustive treatment of the notion of constitutional principle of EU law, see O. Wiklund and J. Bengoetxea, ―General Constitutional Principles of Community Law‖ in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law (Kluwer Law International, 2000), p. 119; A. von

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    Finally, any study focusing on the rule of law in the EU context faces intricate linguistic issues. As briefly discussed above, the protean nature of the English term, by comparison to other languages, is the major problem. For instance, ―the rule of law‖ may be translated in French –

    without being exhaustive by the following terms: prééminence du droit (translation historically

    23), Etat de droit (term today favored by legal scholars when favored by the Council of Europe

    24referring to the rule of law as a constitutional principle governing the State), primauté du droit,

    principe de légalité. The term règle de droit may also be mentioned although it does not refer to

    25the rule of law but rather to any rule of law. In this paper, ―the rule of law‖ will be used in a

    generic sense and will therefore not necessarily refer to the English legal tradition or any particular national/supranational understanding. To avoid any confusion, I will refer to the German Rechtsstaat or the French État de droit, etc., rather than translate the terms under the

    label ―rule of law‖ when specifically dealing with the German or French approaches. It should also be clear from the context when the English or EU understandings of the rule of law are specifically alluded to rather than the principle in the abstract.

    This paper is structured as follows. It will first offer a preliminary overview of the EU‘s

    26―constitutional framework‖ to briefly stress the progressive and increasing importance taken by

Bogdandy, ―Constitutional Principles‖ in A. von Bogdandy and J. Bast (eds.), Principles of European Constitutional

    Law (Hart, 2006), p. 3. 23 See Article 3 of the 1949 Council of Europe Statute, which states that ―Every member of the Council of Europe

    must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…‖ and the Preamble to the 1950 European Convention on Human Rights which

    mentions Europe‘s ―common heritage of political traditions, ideals, freedom and the rule of law.‖ In the French version of the Statute and of the Convention‘s Preamble, the rule of law is equated with the notion of ―prééminence

    du droit‖ while, in German, it is translated by ―vorherrschaft des gesetztes.‖ It would appear that the reference to the

    rule of law in the Preamble of the Convention is due to a representative of the British government. See J.-Y. Morin, ―La ‗prééminence du droit‘ dans l‘ordre juridique européen‖ in Essays in Honour of Krystof Skubiszewski (Kluwer

    Law International, 1996), pp. 668-669. Anecdotic evidence indicates that the rule of law, in Council of Europe‘s literature, is now more frequently translated in French by Etat de droit. See e.g. Council of Europe, ―2009: The year thof the celebration of the 60 anniversary of the Council of Europe,‖ Press release 938(2008). 24 See e.g. Preamble of the Canadian Charter of Rights and Freedoms: ―Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law [et la primauté du droit].‖ 25 See e.g. Article 230 EC: The Court of Justice shall ―have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or

    misuse of powers.‖ 26 To paraphrase AG Poiares Maduro‘s Opinion in Case C-402/05 P Kadi [2008] n.y.r., para. 24.

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