Judicial Control of the Rule of Law Principle in the EU

On 9 Feb 22, the CJ examined for the first time (case T-791/19) the impact of systemic deficiencies in the rule of law on national competition authorities. It not only discussed the ability of national competition authorities to effectively enforce competition law (as there are concerns about the lack of independence of national authorities), but also questioned the Commission's margin of discretion to accept or reject complaints. The ECJ invoked the caselaw adopted in the context of the EAW, and required that the Commission, before rejecting a complaint about lack of an EU interest, ensures that national authorities are in a position adequately to safeguard the complainant‘s rights. Competition law is thus considered a pillar of EU law, which has been undermined by national laws that attack values referred to in art. 2 TEU. The traditional policy of the Commission, trusting automatically all the national authorities, may have to change.

In the wake of 9/11 attacks EU has introduced legislative acts that enshrine regulatory solutions of the security type, justified by the prevention and repression of terrorism. This sword function of European criminal law includes, eg, the Council Framework Decision of 13.06.02 on combating terrorism and the Data Retention Directive (2006/24). Progressively, however, the CJEU, in its capacity as a guardian of fundamental rights, has taken an active role in assessing the compatibility of these acts with the CFR. A paradigmatic example is the jurisprudential line initiated with the Digital Rights Ireland judgment, in which the invalidity of the Directive 2006/24 was declared. We will analyse the reasoning behind this decision, the path the CJEU has taken since then, including the Tele2 Sverige and Prokuratuur cases, and their implications in the national legal systems of the Member States (e.g. Decision of 25th February 2022 of the French Conseil Constitutionnel).

Since 2018 the Court of Justice has been the leading actor in the shaping and protection of the rule of law in Member States, by transforming what was previously a mere presumption and a political intention enshrined in the Treaties into an operative and substantial principle subject to judicial control. Several provisions have been called upon to serve as bases for the control of the judiciary independence: art. 19 TEU (Portuguese Judges case), art. 267 TFEU (IS case ) and art. 47 of the CFR (AK case). To avoid both overlaps and gaps in the principle‘s adjudication, time has come to clearly identify situations able to trigger each of the provisions and to ask whether a consistent analysis is being performed by the CJ. A specific note in this respect has to be made on the comparison between general judicial reasoning about the rule of law and the criteria developed by the Court in regards to the refusal of execution of an EAW.

Having to face the challenges of climate change, States have committed to international obligations and have adopted measures at the European or domestic level to route to a carbon neutral society. But most obligations (at the international, European or domestic level) are short and/or non-binding - and most States still under-perform their mitigation efforts. Courts cannot replace governments and parliaments to improve a State‘s climatic action, since the diktats of the rule of law and the separation of powers oppose to that. But they can control the activity of the executive and legislative branches: pressuring for regulation in cases of lack or incomplete regulatory framework - helping to unveil obligations and fill regulatory gaps - and pointing to possible regulatory pathways. Courts need to be aware of their societal function, and of their restricted, but pivotal, role in a legal system - by assuming these functions as required by the rule of law, courts can also be agents of change.