The rule of law and the basic principles of the EU. Part one – overview and historical development

The early case law of the European Court of Justice formulates the basic principles that form the “legal community”, including the principles of legal certainty and stability, the legitimate expectations, the principle of proportionality.

The concept of the EU as a “legal community” (rechtsgemeinschaft) was introduced by Walter Hallstein, the first President of the European Commission in 1962, and the rule of law was identified as a fundamental and universal value for all Member States, with a declaration of European identity heads of government in 1973 This concept was also adopted by the Court of Justice of the European Union, which in 1986, in the famous judgment of the Parti écologiste “Les Verts” [1] v European Parliament, ruled that “the European Economic Community is a legal community insofar as neither the Member States nor its institutions may avoid scrutiny as to whether their actions comply with the basic constitutional charter of the Community, the Treaty. ”

The early case law of the European Court of Justice formulated the basic principles shaping the “society of law”, including the principles of legal certainty and stability, legitimate expectations, the principle of proportionality [2], based on the national constitutional traditions of the Member States. An integral part of the general principles of the EU, according to settled case law, are fundamental human rights, the principle of equality and non-discrimination, the right to protection and the provision of effective judicial protection, good administration, the prohibition of abuse of rights, the principle non bis idem, the right to diplomatic protection, to collective action, association and strike, etc. The Court of Justice, although bringing the various components into practice, does not provide a comprehensive legal definition of the rule of law, considering it to be a comprehensive principle that it often uses in practice for interpretative guidance or as a source of legal standards.

A specific legal definition of the rule of law [3] but is rarely present in the national constitutions of the Member States, leaving this issue primarily to the academic community and the development of of case law. Therefore, according to some researchers, the rule of law is interpreted by the Court of Justice as a “meta-principle” that provides the foundation for an independent and effective judiciary and the subjecting of public and formal legal restrictions on the exercise of public authority. Although the exact list of principles, standards and values ​​that the rule of law incorporates varies across legal systems, most share the use of formal and substantive legal standards and enhanced judicial review of the guarantee and exercise of fundamental rights. In addition, most national courts consider the formal and substantive components of the rule of law to be interdependent. This is understandable, as the formal and procedural components (prohibition of retroactive effect, access to the judiciary, etc.) in the liberal-democratic order of European countries serve the values ​​(human dignity, equality, social justice, etc.) on which these societies are founded. [4]

The codified basic principles of the EU

In any case, on the basis of established case law and the constitutional understanding generally accepted between the Member States, a significant part of the recognized general principles of law subsequently became part of the written primary law of the European Union.

The main principles that guide the European Union in achieving its goals are fixed in the general provision of Art. 2 of the EU Treaty, which states that “The Union is founded on the values ​​of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values ​​are common to the Member States in a society characterized by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men. ”

The provision of Art. 2 TEU enters into force in 2009. with the Treaty of Lisbon and reproduces exactly the language of Art. I-2 of the Treaty establishing a Constitution for Europe, signed in 2004, the ratification of which ended in failure. A number of amendments to the 1992 Maastricht Treaty also refer directly to the rule of law, beginning in the preamble with a reaffirmation of their commitment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and the principle of the rule of law. the right. Signed in 1997. The Treaty of Amsterdam continues this trend by adding a list of principles common to the Member States. The art. 6 (1) TEU states: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States.” [5] The Treaty of Amsterdam introduces and novelty in this respect – so far primary law does not contain a clause on the suspension of rights arising from membership of the Union. An expression of the importance that the Member States as “Masters of the Treaties” attach to the observance of the listed fundamental European principles is the newly introduced norm Art. 7 of the Amsterdam Treaty, which provides for the possibility of suspending rights in the event of a “grave and continuing infringement” against the offending State, as a special political mechanism provided for exceptional cases of breaches of systemic principles leading to structural changes in implementation. them. The significance of the general principles is supplemented by Art. 49, and their respect becomes a condition for accession to the EU.

The Treaty of Lisbon, which enters into force the current TEU, preserves respect for the national identity of the Member States, “inherent in their basic political and constitutional structures” and adds to the list of respect for human dignity, equality and special reference to respect for rights. of persons belonging to minorities, changing the definition of fundamental “principles” of “values” of the Union.

Application and protection of core values

In this connection, it should be mentioned that the issue of the direct effect of the general principles is also debatable. Some researchers argue that the rule of law, for example, has no direct legal effect insofar as it is not in itself a ground for action and judicial review by the Court of Justice [9]. It is also pointed out that the general principles of EU law have a vertical direct effect, ie. it is possible for a legal entity to invoke them in the event of a conflict between a national rule and a principle of EU law, but doubts exist as to the horizontal direct effect in a dispute between private parties, emphasizing that “in any case, the reference to a common an EU principle is not possible if the national law at issue has no connection with EU law ‘[10]. However, the current case law of the Court of Justice shows increasing flexibility in the interpretation of the relationship with EU law.

Notwithstanding the above analysis, the numerous references to fundamental principles or values ​​in EU primary and secondary legislation should not be seen solely as political statements of intent. Moreover, the Court of Justice has clearly recognized the normative nature of fundamental values, finding that “respect for these values ​​and the principles on which the Union is founded is mandatory in all Union action, including in the field of the common foreign and security policy (CFSP) ”[11].

Thus, taking into account the development of case law in recent years, it can indeed be considered as a reasoned conclusion [12] that the strengthening of the EU’s core values ​​with the Treaty of Lisbon and the so-called “Cessation of the rule of law” [13] in some EU Member States provided the context in which the Court is increasingly discovering the potential of Article 2 TEU, in conjunction with Article 19 (1) TEU, to ensure compliance with the rule of law . In a series of recent judgments, the Court has essentially based its reasoning on the constitutional significance of EU values ​​in order to establish its own jurisdiction in areas where it is not always indisputable. This can be seen both with regard to the CFSP (with a view to EU action) and with regard to decisions relating to the organization of the national judicial system (with a view to action by the Member States), such as “this new line of case law developed following the entry into force of the Treaty of Lisbon, has allowed the EU to develop further into a true “Union based on the rule of law” [14]. In this respect [15] the Court’s broad interpretation of its jurisdiction over the CFSP and the measures of the Member States concerning the organization of national judicial systems is questionable in relation to the strict reading of the TEU rules, but at a time when the procedure under Art. 7 shows the limitation of its capacity, it represents an opportunity for the Court to play its role in defending the rule of law in the EU legal order.

Indeed, it can be claimed that it is precisely this vision of the Court that influences the other EU institutions, in particular the European Commission and its efforts to strengthen the rule of law, expressed in the development of various instruments for the review, prevention and protection of the rule of law, as well as in the launch for the first time of the procedures under Art. 7 (1) DES. To the extent that this instrumental framework is characterized by a certain fragmentation, limited in scope, action and consequences, it continues to be evolving.

Тази публикация е достъпна и на следните езици: Bulgarian