Andreas Kumin keynote at the BEG 2022 conference, “The Court of Justice of the European Union – a bridge over troubled water”

Andreas Kumin is the Austrian Judge at the Court of Justice of the European Union. This is the text of the keynote speech he gave at the BEG conference in Salzburg on 29 May 2022. The opinions expressed in this contribution are exclusively those of its author and do not bind the Court of Justice in any way.

Judge Andreas Kumin. Photo courtesy of the Court of Justice of the European Union.

Dear Philip Moser, dear Christopher Vajda, Ladies and Gentlemen!

First of all, please accept my heartfelt thanks for the kind invitation to speak to you on this occasion and for your warm words of introduction. It is now my turn to welcome you to Salzburg and to wish you a pleasant stay as well as fruitful exchanges.

We meet at times when a brutal war of aggression is being waged at our borders in disrespect of well-established rules and principles of international law. I therefore thought it appropriate to choose a topic for this keynote which will allow us all to become aware yet once again of the enormous added value that a functioning system of judicial review represents for the European Union, its Member States, its neighbours and for the people living within their territories. In the city of Mozart’s birth, I obviously had to include some allusion to music, albeit not classical, at least in the title.

With the complete and closed system of national courts as the ordinary courts of Union law on the one hand acting together with the two central Union courts in Luxembourg on the other [see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, paragraphs 66 to 70] the European Union is equipped with a judiciary that is fortunately capable of resolving even very pressing and highly sensitive issues, including of a political and constitutional nature. Just think of the determination that had to be made in the case Wightman and Others (C-621/18, judgment of 10 December 2018) during the Brexit process on whether a notification in accordance with Article 50 TEU by a Member State of its intention to withdraw from the EU could be unilaterally revoked. Seizure of the Union judiciary in a strategy of legal escalation at the same time means using it as a tool for political de-escalation. Thus, within the European Union recourse to the threat or use of force, be it political, financial, rhetorical or physical, and even to legitimate coercive measures in order to ensure compliance is all but entirely obviated. A case in point here is the still ongoing Rule of Law and fundamental values crisis in some Member States like Poland and Hungary.

General Reflections

Starting from the central thesis just mentioned I will first share with you a couple of more general reflections upon the particular nature of the different procedures at the Union courts and then give a few examples related to different areas of EU integration which illustrate the peace-making role of Union law and its judiciary as one of their principal functions.

Conflict Prevention through Judicial Harmonisation

It is commonly known that not only quantitatively, but also qualitatively, the most important procedure before our Court is the preliminary ruling procedure. By answering questions of national courts regarding the interpretation of primary as well as secondary law and/or the validity of the latter, the Court of Justice contributes to the unified, coherent and consistent interpretation and application of Union law, thus reducing discriminations and obstacles to the exercise of the fundamental freedoms of the internal market. It has traditionally been through preliminary rulings that the Court has shaped the very nature and effects of Union law in the national legal systems and also guided the subsequent practice of national courts and administrations. At the same time, the erga omnes effect of the Court’s rulings reduces, in a preventive manner, potential for conflicts Union-wide. With the constantly increasing breadth, depth and density of EU legislation across the board of public policies, the impact of this judicial harmonisation nowadays affects almost all spheres of daily life, ranging from civil over administrative to criminal law.

Effective Individual Legal Protection

For a Union of law, however, indirect access to judicial protection alone is not sufficient. That is why also the direct avenue to the Union judge exists for the citizens and enterprises via actions for annulment in order to settle real legal disputes in defence of their interests. When the General Court reviews the legality mainly of those acts of Union institutions which are addressed to a specific person or group of persons or those of a general nature which directly and individually affect the applicant, it basically acts as an administrative court. While it has the exclusive power to establish the facts and to assess the evidence presented to it, appeals may be brought against its judgments on questions of law. In dealing with these, the CJEU once again sees to a coherent interpretation of Union law and its general principles within the relevant field – intellectual property, restrictive measures, competition law, EU civil service law, just to name a few – and also across the different sectoral policies.

Constitutional Dispute Settlement

Apart from this effective judicial protection for the legal subjects against violations of their rights derived from the Treaties, including fundamental rights, the Union courts also fulfil the role of constitutional courts in several dimensions:

  • disputes between the Member States and the Union and its institutions, for example on the limits of competences of the Union;
  • allegations of non-compliance with treaty obligations by Member States either presented by the European Commission or by another Member State;
  • inter-institutional disputes on the respective legislative or administrative prerogatives, the applicable procedures or the legality of the acts as checked against the general principles, Treaty provisions or fundamental rights.

Also here, apart from resolving an ongoing dispute and terminating an unlawful situation, the CJEU becomes a vital instrument for unblocking existing or preventing future stalemates in the institutional interplay or in the relations between the Member State concerned and the Union as a whole.

I will now turn to a few concrete examples to corroborate my central thesis, taken from different sectors of Union law.

Revocation of the Withdrawal Notification?

Let us have a brief look back on the process of the withdrawal of the United Kingdom from the EU, the consequences of which for UK law will be at the centre of our discussions today and tomorrow. You will certainly agree with me that questions of acquiring and ending membership in an international, in this case even a supranational, organisation are of fundamental constitutional importance. While Article 50 TEU refers to the notification of a Member State’s intention to withdraw and the subsequent process for negotiations, it does not even mention the possibility for the withdrawing Member State of revoking this intention. What was at stake in the national procedure was for national Members of Parliament to know precisely the effects of a possible negative vote on a negotiated withdrawal arrangement: automatic exit after the expiration of the two years (if no extension was decided by the European Council in accordance with Article 50 (3) TEU) or possibility to stop the process? Without going into the details well known to you, this query was deeply rooted in the mechanics of the involvement of the UK Parliament in the course of action to be taken by the UK Government by virtue of the European Union (Withdrawal) Act 2018. In applying the intrinsic logic of the explicit stipulations of Article 50 TEU to the revocation scenario not mentioned therein, the Court admitted such revocation as lawful if decided in conformity with the national constitutional requirements, notified before the taking of effect of the initial withdrawal declaration (entry into force of a withdrawal agreement or, if no such agreement has been concluded, expiry of the two years) and intended to end the withdrawal process with the effect of continuing membership under the pre-existing terms and conditions before the initial withdrawal notification.

Apart from resolving the controversy or doubts in the specific political context of the main proceedings, the judgment of 10 December 2018, Wightman and Others (C-621/18; full Court, expedited procedure) offered the CJEU the opportunity to clarify key aspects of the withdrawal procedure, drawing upon public international and Union law, which would be applicable in a potential future withdrawal procedure of another Member State with probably a completely different national constitutional setting. Through this, we find legal certainty greatly enhanced.

Union values and Rule of Law

In order to be able to achieve and maintain internal stability, the system of European integration not only depends on the rule by the law – in a formal sense – but also on the Rule of Law – in a material sense. The Rule of Law forms part and parcel of the common values of the EU as laid out in Article 2 TEU. In a series of preliminary rulings and judgments in infringement procedures the CJEU has developed the topos of Union law not only offering an efficient subjective right to judicial review, based on Article 47 of the Fundamental Rights Charter, but also institutional guarantees for an independent national judiciary of the Member States, derived from the second subparagraph of Article 19 (1) TEU.

However, I do not wish to enter into the details of our rich jurisprudence on the threats to the independence of the judiciary, in particular but not exclusively from the executive branch of government, in Poland, Hungary or Romania today. I would rather like to emphasise another aspect that emerged in the course of the fundamental values procedure against Hungary. This Member State asked the CJEU to annul the resolution of the European Parliament adopting a reasoned opinion with which it seized the Council with a view to determining that there was a clear risk of a serious breach of fundamental values. Hungary held the view that by not counting the abstentions of MEP as votes cast the EP had committed an error in the application of its voting rules. Two main issues arose in the proceedings: the competence of the Court with regard to the act in question and the merits of the applicable voting rule. Hungary won on the first count while not succeeding on the second (judgment of 3 June 2021, Hungary v European Parliament, C-650/18).

With his conciliatory interpretation of what is a challengeable act under Article 263 TFEU in the light of Article 269 TFEU, the Court demonstrated that the complete system of judicial remedies against violations of fundamental principles and provisions of the Treaties also offers Member States themselves effective means of defence in the context of the procedures under Article 7 TEU, and this despite of the only limited competences that were intended to be given to the Court by the “Masters of the Treaties” with regard to the highly political nature of the fundamental values procedure.

The Eternal Competence Debate

The majority of disputes opposing Member States and EU institutions in direct actions or submitted via preliminary ruling requests concern the alleged illegality of acts of secondary law because of disrespect of the principle of attribution of competences. Some of these procedures give rise to even fundamental controversies on the limits of the EU integration project or the very nature of Union law and its place in the national legal orders.

If we take some UK examples, I remember the judgment of 2 May 2006, United Kingdom v Parliament and Council (C-217/04) in the ENISA case where the basic question was whether approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market in the sense of the current Article 114 TFEU (former Article 95 TEC) could be achieved through the action of an agency. In the field of the many measures to cope with the financial crisis we recall the preliminary ruling in the case which gave rise to the judgment of 27 November 2012, Pringle (C-370/12) on the conformity with primary law of the adoption of the simplified treaty amendment creating the legal basis empowering the establishment of the European Stability Mechanism “ESM” (Article 136 (3) TFEU), or the judgment of 22 January 2014, United Kingdom v Parliament and Council (C-270/12) concerning the sufficient determination by the Union legislator of the powers of intervention conferred on the European Securities and Markets Authority in exceptional circumstances with regard to short selling which were based on the internal market harmonisation article. In the case that led to the judgment of 16 June 2015, Gauweiler and Others (C-62/14) dealing with outright monetary transactions (OMT) of the ECB, similar questions were raised with regard to the compatibility of those measures with the prohibition of monetary financing of Member States of the Euro Area.

I will now turn to the last one in the series of cases determining the fine line separating measures in favour of price stability and monetary policy from those geared towards supporting economic stability and the economic policy. The decision taken by the German Constitutional Court two years ago (5 May 2020) after the CJEU had handed down its preliminary ruling judgment of 11 December 2018, Weiss and Others (C-493/17) has sent shock waves across the continent and even triggered the first stage of an infringement procedure by the Commission, set aside again by now. It was the first time that the Bundesverfassungsgericht not only flagged the possibility for itself to autonomously exercise the ultra vires control against acts of the Union institutions but made actually use of it. The language used was rather harsh, indeed, too (“…the interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary … ”, Judgment of the Second Senate of the Federal Constitutional Court, of 5 May 2020, in Case 2 BvR 859/15 and others, point 118; “, the interpretation undertaken by the CJEU is not comprehensible from a methodological perspective”, idem point 153). The particularity of this case, seen from my own personal perspective, lies first in the circumstance that a national court did not follow the answer given by the CJEU in a preliminary ruling as to the validity of a Union measure and exercised its own proportionality test against national constitutional standards instead. These can be applied, at most, to the action or inaction, as alleged by the claimants in the main proceedings, of the national authorities (the central bank, the federal government, the Parliament). Second, in so doing, it did not only undermine the primacy, unity and coherence of the Union law, but also gave a rather bad example for non-observance of EU standards to supreme courts of other Member States at a time when serious concerns were raised by the reforms of the Polish judicial system.

In the more recent past, and again in relation to the EU’s tool box to counter Rule of Law challenges in the Member States, we cannot avoid mentioning the judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21) and Poland v Parliament and Council (C‑157/21) delivered by the full Court in two cases unsuccessfully brought by Poland  and Hungary against the Regulation (EU, Euratom) 2020/2092 on a general regime of conditionality for the protection of the Union budget, which establishes a financial safeguard mechanism against threats to the Union budget by management and control deficiencies in the Member States. The main arguments inferred were the lack of legal basis since the measure did not qualify as a “financial rule” but as a sanction for violations of the Rule of Law; that the correct legal basis would have been Article 311 TFEU on the Union’s own resources or Article 312 on the multiannual financial framework; further the circumvention of the procedures of Article 7 TEU (clear risk of a serious breach or existence of a serious and persistent breach of the fundamental values referred to in Article 2 TEU) and Article 258 TFEU (infringement); the disrespect of Article 269 TFEU by submitting political assessments to judicial control; the misuse of powers; the lack of legal certainty with regard to the vague definition of what should be understood as being a Rule of Law-shortcoming. The judgments, by upholding the contested measure since it established a sufficient link of the Rule of Law concerns with the orderly management of financial resources and its control in accordance with the principle of sound financial management, smoothed the way for the European Commission to apply the regulation in concrete cases, what it had not done before.

Inter-institutional Disputes

In order to complete the picture I would just like to briefly mention, amongst the wealth of inter-institutional quarrels, a recent Opinion 1/19 (Istanbul Convention) of 6 October 2021 the Grand Chamber of the Court issued on the conclusion by the EU of the Istanbul Convention on preventing and combating violence against women and domestic violence. Efforts towards EU-accession have been going on for several years, but the three main institutions Commission, Council and Parliament pursue different approaches on several key issues. The questions asked by the European Parliament included the identification of the correct legal basis (asylum, judicial co-operation in criminal matters, crime prevention, staff rules) and its effects on the splitting or not of the Council decision in two, in view of the participation of Ireland and Denmark according to their primary law opt-in/opt-out arrangements (Protocols No 21 and No 22 respectively). The main institutional quarrel, however, was whether the Council was obliged or allowed to wait for all Member States to confirm their intention to become parties to the Convention in their own right before it was able to take its formal decision on the authorisation of the conclusion of the Convention on behalf of the Union. This instrument of a specific Council practice has become known as the “common accord”. Underlying this problematic is, amongst others, the fact that for several Member States national constitutional obstacles exist concerning some concepts mentioned in the Convention (‘socially constructed roles’, ‘stereotypical roles’ and ‘gender’). The Court answered that it was possible for the Council to wait and try to maximise support for the Convention amongst Member States but that it was not lawful to make the Council decision contingent on an additional requirement of achieving quasi-unanimity which cannot be found in the Treaties in contrast to the qualified majority usually required for such a decision. This finding will certainly have a major impact on the internal practice of the Council for taking the decisions on authorising first the signature and second the conclusion of mixed international agreements.

Conclusion

I will leave you with these thoughts that were intended to reaffirm in our collective conscience the value of that wonderful asset for a peaceful resolution of disputes we have at our hands in the form of a Union of law equipped with a common system of judicial protection. Within this system, the Union judiciary plays a key role in bridging legal divides and contributing to political unity, with the EU Court of Justice as the supreme authority for the definition and interpretation of the rights and obligations that Union law creates with regard to EU institutions, administrations and courts of the Member States as well as private legal subjects.

Thank you very much for your attention!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s