The doctrine of primacy of EU law become a direct component of the Rule of Law crisis with the K 3/21 judgment of the Polish Constitutional Tribunal. In this podcast, RevDem assistant editor Teodora Miljojkovic interview Dr Ana Bobić (Référendaire to Advocate General Tamara Capeta at the Court of Justice of the European Union, and previously post-doctoral researcher at the Hertie School of Governance) on whether primacy and the Rule of Law crisis can be separated. They also discuss the benefits of a theory of constitutional pluralism that adheres to a normative core for judicial dialogue and democratic legitimacy in the EU.
Teodora Miljojkovic: In a recent conference of the BRIDGE Network, “The Rule of Law Crisis and the Future of EU Governance”, you provided a compelling presentation. I was interested in your argument on why the discourses on the primacy of EU law and adherence to the Rule of Law should be separated. Could you elaborate more on this for our listeners?
Ana Bobić: I think that in the academic discourse we are simply conflating these two concepts, and I think that this is problematic. Without diminishing the severity of the Rule of Law crisis that the EU is facing today, the primacy of EU law is simply, to my mind, not affected by it, or rather it is only affected by extension. The primacy of EU law, as I understand it, is the concept of the EU constitutional set-up. It tells us something about how the EU operates, and it includes both the EU and the national level of constitutionalism. So the EU has a claim to ultimate authority, national systems have claims to ultimate authority, and these operate according to primacy. They mutually accommodate each other. Law is part and parcel of national constitutionalism in every Member State in the EU. But I think that by exacerbating the attacks on judicial independence, the primacy of EU law is kind of used as a scapegoat, as something that the authoritarian governments find easy to attack.
But this is not the problem. In my mind – and this is what I also mentioned in my presentation – if any of the attacks on the Rule of Law did not focus on primacy at all, we would still have the same Rule of Law crisis. For example, if the Constitutional Tribunal in Poland approved all government measures that attack judicial independence without mentioning primacy of EU law, we would have the same problem.
In the academic discourse every attack on primacy of EU law is considered a Rule of Law issue, which I really find very problematic because then the EU constitutional set-up somehow becomes hostage to the Rule of Law crisis in individual Member States.
I think that would be the same as saying, for example, that the financial crisis was a primacy crisis. It wasn’t. It, of course, concerned primacy – it tested the way that we look at the constitutional set-up. We had the European Stability Mechanism (ESM) as a completely new creature arising out of it. So we may say the primacy was, by extension, touched upon but truly I see these two as very separate issues.
In my opinion, the issue has something to do with the fact that we have only recently started to examine what the Rule of Law as an EU value actually means. That is probably the reason why it gets conflated with primacy. But that is exactly the reason why we should be cautious and point that out.
As you mentioned, and as everybody who follows your work knows, you work on constitutional pluralism. I think this also relates to the question of EU primacy. In one of the your articles that I read, you explored how constitutional pluralism, as a theory, underpins both the dialogues and conflicts which national constitutional courts engage in with the CJEU. One of these conflicts is exactly this Rule of Law one with Poland. As you stated in your paper: “Strengthening the normative core of constitutional pluralism will result both in decreasing the ability of rogue states to abuse it, and in increasing the capacity of the EU’s constitutional system to address such abuses.”
While I find this idea wonderful, I would like you to explain further to our listeners how this broad acceptance of constitutional pluralism may prevent the abuses of the concept of constitutional identity which we have seen recently in several Member States. So practically, how do you think this could work?
Of course, constitutional identity is nothing new. We first had mention of national identity in the Maastricht Treaty, and it has developed into its current wording. Equally so, the Court of Justice previously had very few problems with national/constitutional identity. We had opinions from Advocate General Maduro, back in the early 2000s, analyzing the differences or similarities between the two concepts. I think that when I talk about the normative core of constitutional pluralism, what I mean is the following: First of all, I think that when you say broad acceptance, it is important to underline that none of the courts or sites of constitutional authority we are talking about accept constitutional pluralism. I really want to emphasize that this is crucial for the operation of constitutional pluralism. None of the individual courts is pluralist. Every individual court operates by putting forward its ultimate claim to supremacy. This is the reason why we have pluralism in the first place, and of course, this is not my invention. MacCormick and Walker already emphasized that the reason why we have pluralism is because we have multiple sites of authority claiming the ultimate say.
For the Court of Justice of the EU, and for the Bundesverfassungsgericht and for the Tribunal Constitucional, for example, the situation is easy. They regard themselves as the ultimate arbiters.
That is the first thing that I really want to emphasize – there is no such thing as judicial acceptance of pluralism, which is why it is also telling that the Polish government, by citing it, is abusing it.
They are saying, “oh, we should all operate in this pluralist world”. Yes, but, actually, not really, because the idea is that every constitutional site claims ultimate authority. This works in constitutional pluralism because we all agree on the normative core. We have all agreed that we are adhering to the values in Article 2 TEU. I think that this is really crucial because of the way that constitutional identity has been used previously. Before being used in a destructive way, it has always been the case that the national level defines what the constitutional value is. In Sayn-Wittgenstein we had the principle of equality, and in Omega we had human dignity. The national level defines it and the principle of proportionality guides its application. The national court referred a question to the Court of Justice in Omega and Sayn-Wittgenstein, and then the Court of Justice applied the proportionality test.
But we have situations where the national court does not refer preliminary reference. We have the European Arrest Warrant cases in Germany and in France of Mr. R and Jeremy S where national courts have still maintained that the relevant factor is the protection of the right to a fair trial. So, we are always maintaining the values in Article 2 TEU, and I really want to emphasize the fact that constitutional identity is not a problem in itself. If there were no constitutional identity, authoritarian governments would abuse something else. I think that we always lose sight of the fact that national identity has been here for a super long time. We have just been taking it for granted that we all agree on the basics. So, if constitutional identity did not exist then Poland and Hungary might abuse concepts such as judicial independence or the Rule of Law itself. I think that with a good faith in application of Article 2 TEU, and a good faith understanding of the national identity clause (Article 4(2) TEU), these problems don’t happen. They are constructive conflicts which regularly happened for decades. This is how constitutionalism pluralism works.
Another argument in your writing is that, when it comes to the protection of the EU’s values, particularly the Rule of Law, there is no need for a monist understanding of the values which fall under the scope of Article 2 TEU, and that different interpretation will prevail at different times. I will use the chance to quote you again here: “we may not be in agreement as to the precise extent of the Rule of Law or how it influences judicial independence in one or another constitutional and institutional context, but we can be in agreement on what falls outside its borders.”
Essentially, this quote reflects this idea of agreement on the normative core. But if we accept different national understandings of the Rule of Law, which arguments could be employed to prove that a certain Member State’s interpretation falls outside of the scope of the Rule of Law as a value under Article 2 TEU? I’m worried that the acceptance of the interpretation of the Rule of Law by one Member State and the rejection of another seems susceptible to the criticism of double standards which illiberal regimes usually employ in their rhetoric. Do you think that this is a problem? Is there a way to overcome it?
I think that this is a really great question. When I was thinking about how to prepare an answer, I was actually thinking, well, who should actually decide what is outside these borders? To be quite honest, I don’t know. Let me rephrase that, anyone or everyone should be able to decide, because it shouldn’t really matter. So, here’s what I was thinking: of course, we start with the accession process. We have the original Member States and not everyone has gone through the same accession process. But let’s say that the European Commission itself is learning through time how to standardize the accession criteria; it is also learning through time how to articulate the criteria properly and how to place demands on acceding Member States. Let’s also imagine that, over time, the Commission is also learning how to use the procedures in Article 7 TEU [on values protection] a bit better. And now we will maybe see the Rule of Law conditionality regulation coming into force We will find out tomorrow whether the court will uphold its validity or whether it will endorse the Polish and Hungarian challenges that the regulation is invalid. [this conversation was recorded on 15 February; on 16 February the Court of Justice held that this regulation was valid].
I think that from the beginning nobody really thought about whether we even need to define the Rule of Law. It was taken for granted. In this sense, one of the possibly positive outcomes from this whole mess is that maybe it is an opportunity for the EU as a whole to have a rethink about how do we properly define this concept.
Because so far it may be said that this pluralist way of understanding enforcement is flawed in the sense that, if we decentralize it to such an extent, we may find ourselves in a situation where Member States really abuse it. We may have taken it for granted, but I think that we also lose sight of the fact that the Member States, by acceding to the EU, are no longer single units. Their membership is now layered. We have the courts that participate with the Court of Justice in the framework of judicial protection in the EU . We have executives that in different ways participate in different institutions of the EU and have a voice there. And we also have the European Parliament. I think that we should keep in mind that we may say that Poland is breaching the Rule of Law, but what we are actually saying is that the Polish government is attempting to breach the traditional independence of thousands and thousands of thousands of judges who are all individual actors in EU law, and who also all strive individually to protect their own judicial independence.
So, we actually have a whole network, a whole force, of institutions at the EU level and at the national level. Of course, we have a lot of famous Commission vs Poland judgments. We have the horrible decision of the Constitutional Tribunal, but we also have dozens and dozens of dozens of preliminary references by ordinary national courts in Poland who still also attempt to enforce the Rule of Law and their own traditional independence. In some ways, I think that we have this system already in place. It’s just that currently it’s really under threat. The optics of it all are unfortunate because the Commission was really at the forefront. We were looking at the Commission, and all we saw were reasoned opinions and all these invitation letters.
There are many different ways to conceive of judicial independence. The original idea behind the quote that you mentioned was really that, in the EU, we have so many different constitutional systems. In Denmark and in the Netherlands, judicial review is prohibited. Courts cannot annul legislation. We have systems of parliamentary democracy, and we have systems of constitutional democracy. We have countries with different traditions of constitutional review. And the EU itself is such a judicially heavy enforcement system. I don’t think that many of the Member States were used to placing so much trust in courts. This is why judicial independence became so important. In these different contexts, for example in the Netherlands, the national courts have to either receive permission or at least notify the Minister of Justice of every preliminary reference. In the context of Poland right now that would be very problematic. But the point is that these traditions are there for something. There is an institutional habit of behavior and the Rule of Law has been respected in different ways. This is what I mean by different understandings of the Rule of Law or different understandings of judicial systems. But I think that we are now being forced to reckon with the issue, and we are forced to properly define it for the EU as a whole.
When we say that the judges are individual EU actors, that also sheds a different light on Rule of Law adherence in the sense that, if the government definitely violates the Rule of Law, that doesn’t mean that the country as such should be perceived as a Rule of Law violator. Polish judges, as you said, have issued tons of preliminary references, in trying to somehow preserve their independence and actually apply EU law. But we also know that the consequence of that was the backlash from the Polish government. Ordinary judges try to apply the judgments of the CJEU regarding judicial independence, and then they are subject to arbitrary disciplinary procedures. Do you think that this is a spillover effect of constitutional pluralism from the international to the national sphere, or is it simply an abuse of the constitutional identity paradigm?
If Polish judges apply EU law, which has been ruled not to adhere to Polish law, we have different norms within the national system. The judges who want to apply EU law will apply one set of standards, and the judges who do not want to apply EU law will apply different standards. So, the Rule of Law within the national sphere is then seriously jeopardized in the sense of legal certainty. What do you think about that, and how can that be a problem?
It’s certainly a problem. The biggest problem is that the whole system of EU law depends on individual judicial enforcement. I think that this is one of the situations where primacy really becomes entangled with the Rule of Law crisis. As I said in the beginning, they should be analyzed separately, but of course they mutually influence each other. Here we really see that primacy is being misused or abused or scapegoated, so to speak. It’s the enemy. I would repeat myself a bit to say that I don’t think it is a spillover of constitutional pluralism, because, again, I do not think that any of the national courts see themselves as pluralist courts. I mean, that’s also an exaggeration to some extent. Of course they do. They know when they apply the European Arrest Warrant that a certain national court from another Member State applies their own certain understanding of procedural rights, or that there is mutual accommodation of different principles. Whether or not we are in a constitutional plural system or federal system, very little changes for individual courts. But the problem is that constitutional pluralism can help here, because I think that when primacy is used as an enemy, then the insistence on absolute primacy is the cause for resistance.
In a situation in which the EU claims absolute primacy without any exceptions and says that there is only one way to understand, let’s say, judicial independence, then there is no detraction from it, and there is no other understanding. Then it’s easy for an authoritarian government to say “you see, things are being imposed on us”. I’m not victim blaming here. I’m not trying to say, well, the Court of Justice is asking for it. Not at all. That’s not at all my point. But there is a certain expectation that there are some limits to primacy. And I think that there are also again constructive limits to primacy established by Polish courts before and after the Rule of Law crisis – although I would need to know all the Polish jurisprudence of all courts to be able to say that. Again, I really am not familiar with the everyday jurisprudence of Polish courts. But, yes, I think that we’re simply dealing with a huge problem of authoritarian governments.
Primacy is not the issue here. The EU is not the issue here. These countries would have a huge problem even if they were outside of the EU, even if they were on Mars. This is simply a problem for the Rule of Law in an individual country that strives to be democratic or once thought of itself as democratic.
And of course, the EU suffers, by extension, because EU rights that are granted to individuals that are usually relied on by the judiciary are now in jeopardy. This is a big problem for the EU. But most of all, and most importantly, it is a problem for Polish citizens.
Let’s switch to another argument that I extracted from your writing. So you hold that if we embrace constitutional pluralism as scholars, this may enhance the democratic legitimacy of the EU. I think that in the last answer you hinted a bit about why this could be a good thing, as you said, for the EU. But I think that our listeners would appreciate knowing why this is better than a monist approach to the definition of enforcement of EU values.
A lot of scholars are not just scholars, but also EU officials and even citizens, and they think that the only way out of this crisis is to strengthen the EU’s monist approach. And this is actually not just the opposite of constitutional pluralism, but a very different suggestion. Could you elaborate more on that?
This is my favorite question, not only today, but in my whole academic work. I think that the main benefit of pluralism over monism is its ability to perform checks and balances. Of course, if all Member States agreed that tomorrow we are entering a federation and the EU is no longer a supranational entity, but it is literally a federal entity that now holds us all together, that would operate in the way that federations operate. And then why not have a monist understanding, as I already mentioned in the Bridge Network Conference? Of course, even in federal systems such as the USA, we always have disagreements on judicial application. It is impossible to have an absolutely uniform interpretation of law in a multilevel system with millions and millions of people and thousands of thousands of courts. But I think that the checks and balances of the pluralist system are extremely important. So the Court of Justice, of course, is the ultimate interpreter of EU law under Article 19 (1) TEU; it has the exclusive power to interpret EU law, and that is absolutely undisputed. Equally so, national constitutional courts have the ultimate authority to interpret their national constitutions.
Now, in an understanding where we have a normative core of constitutional pluralism, which is Article 2 TEU, all these courts and all these documents, the treaties and national constitutions adhere to the minimum of these values. But of course, in some situations, someone may make a mistake. Solange is the easy example. But I think that that example is easy because, at that time, the EU did not even have competence in fundamental rights. So let me get out of the easy answer. I think another excellent example is the Data Retention Directive saga. The Directive itself was in 2016, if I’m not mistaken, and the EU already has full on adherence to fundamental rights. It is committed to protecting fundamental rights. The EU enacts the Data Retention Directive. And if I’m not mistaken, Ireland challenges its validity based on competence. And the court says, no, all is good. The Data Retention Directive can proceed as it is. And then it is implemented in Member States, and I think around seven or eight or more national constitutional courts are faced with actions claiming that implementation of the Data Retention Directive is breaching the right to privacy, and the right to family life. Some of them were bound by privacy even by their constitutions, whereas decided it definitely goes against constitutionally protected fundamental rights. So a number of constitutional courts annulled national implementing legislation.
But, of course, there was no leeway for national legislators. They had to implement the Data Retention Directive. The Austrian Constitutional Court and the Irish High Court, as we know, submitted the reference in Digital Rights Ireland. Here the Court of Justice could not fail to notice that 10 constitutional courts had issues with this Directive, and that there was a serious problem with the protection of privacy. Then, of course, as we all know what happened – the Data Retention Directive was annulled. I think that this is an amazing example of pluralism, because in a system of clear, absolute primacy, we would have national constitutional courts being like “well, tough luck. It does appear that privacy is breached here, but EU law is supreme and we just implement it and confirm it. And we trust the Court of Justice to always properly safeguard fundamental rights.” So I think that this is really a great example of where the Court of Justice listened, in the same way asTaricco in the reference of the Italian Constitutional Court. The Court of Justice realized that perhaps the original reference by the ordinary national courts was too easily resolved, and that there are other issues that need to be taken into account.
I really find this to be a beautiful story in the judicial interactions of the EU. I think that makes the EU a great place where we as individuals don’t have to go to Luxembourg. I mean, how can we go to Luxembourg with direct and individual concern? It’s almost impossible to get across this threshold, but we know we can go to our national courts, and we know that our national courts can then put pressure on the Court of Justice.
I actually have two points that I thought about from your answer. First of all, you mentioned that you don’t know the daily jurisprudence of the Polish court; the thing is, I don’t think the judges of the CJEU know it either. So maybe that’s why constitutional pluralism should at least exist as an idea, because the Court Justice simply does not know every national context in detail. That’s my worry. The recent jurisprudence of the Court of Justice was tailored for the circumstances of the Polish situation, but there could be problems when we apply it to some other context which is much more complex and with a specific national historical context. The judges simply may not know that they do not have the legitimacy to go into that area. The situation with the judicial reforms in Romania is so complicated that it’s questionable whether the jurisprudence of the CJEU actually can apply.
The second thing is that I think that now you have explained perfectly why the Rule of Law crisis is a problem of singular Member States. Because, as you said with the example of the Data Retention Directive, when there are ten Member States which are saying something is wrong here, we can see that there is actually a problem. But when there are one or two Member States engaging in behavior, and thankfully the attempts of other countries are not visible, then we can say, okay, maybe it’s really not about the problems of judicial independence. It’s not about how the national courts perceive themselves differently. And if we are honest, standards on judicial independence are quite similar in different national contexts and in the CJEU’s jurisprudence, at least they were before these reforms in Poland. So I think that proves your point. If there are only two Member States with these issues, then this is simply not a problem of EU’s judicial dialogue mechanism.
The only thing that I would really like to emphasize or add is that I also really think it’s very important that this crisis is resolved politically. If we remain in the situation of judicial dialogue with a court that is no longer independent, there is nothing we can do.
The Court of Justice can issue 25 more judgments telling the Polish Constitutional Tribunal to comply or stop acting outside of what is allowed. But it won’t happen, because it simply is not an independent court.
So I am very curious to see what will happen tomorrow [in the judgment of 16 February in which the Court found the budget conditionality regulation to be valid] with the Court of Justice and how it might go forward.
In collaboration with Oliver Garner.
This transcript has been edited for clarity and length