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Is the breach of the rule of law gradable? – selected comments against the background of Article 7 TEU

The starting point of the below entry could be the view expressed in the Judgment of the Court of Justice of the European Union of July 24, 2023, in the case C 107/23. As it specifies, the fundamental principle of EU law – the principle of legal certainty requires that the legal norms be clear and precise and that their application be foreseeable for those subject to the law, especially where they may have adverse consequences. That principle constitutes an essential element of the rule of law, which is stipulated in Art. 2 of the Treaty on European Union[1] (hereinafter the ‘TEU’)[2]. An example of a norm that may have negative consequences for its addressee is precisely Art. 2 in conjunction with Art. 7 TEU. This regulation in particular sanctions certain situations of a serious breach of the rule of law by a Member State. Referring again to the principle of legal certainty, it is worth asking whether the phrase ‘serious breach (serious infringement) of the rule of law’ can be used to reconstruct a clear and precise disposition of conduct, which is in fact a prohibition addressed to a Member State. However, let us mostly consider whether it is possible, from a doctrinal point of view, to define the characteristics of a ‘serious breach’ of the rule of law, while only referring in general terms to the question of the understanding of the very concept of ‘the rule of law’[3].


It is worth recalling that an attempt to define the ‘serious breach’ criterion was made in the Communication from the Commission to the Council and the European Parliament of October 15, 2003 ‘on Article 7 of the Treaty on European Union. Respect for and promotion of the values on which the Union is based’[4] (hereinafter: the ‘Communication 2003’). In light of this document, the considered violation must go beyond specific situations (beyond an ‘individual breach’) and concern a more systemic problem. ‘To determine the seriousness of the breach, a variety of criteria will have to be taken into account, including the purpose and the result of the breach’[5]. The legal literature adds that these are violations of a structural nature that have such profound consequences that national institutions themselves will be unable or unwilling to remedy the situation[6]. A ‘serious infringement’ must feature high intensity and manifest a breach of great weight. It means a ‘final impairment’ of the rule of law value, which questions the European integration as such. To fulfill this requirement the violation must have a ‘systemic’ dimension, i.e. the State shows a ‘systemic deficit’[7]. It covers the situation when the infringement affects the political, institutional, or legal order of a Member State, the constitutional structure of that State, the separation of powers, the independence or impartiality of the judiciary, or the system of judicial review, including constitutional justice[8].


However Art. 7 TEU deals with a sanctioning provision, which requires clarity and precision, nonetheless,  the degree of violation of the rule of law, as defined by the Commission or in the literature, still leaves a wide margin for assessment[9]. So far, the attempts to establish the characteristics of a ‘serious breach’ of this value have not led to the development of objective criteria for assessing the conduct of a Member State. Taking this into account, I believe that the interpretative results presented above do not exhaust the possibilities offered by a literal (linguistic) interpretation (textualism), supplemented by a systematic and teleological context. Of course, we are aware of the significant role of systemic and teleological interpretations, in particular of the Treaties’ provisions, but a starting point is always the text of the normative act to be interpreted[10]. At the same time, a literal interpretation always best reflects the principle of legal certainty, as it guarantees a high degree of predictability of actions taken on the basis of law[11].


First of all, it is worth noting that several provisions of the Treaties refer to the concept of ‘breach of  law’ or ‘infringement of law’, in particular Arts 7.1 and 7.2. TEU, Arts 259 para 2 and 263 para 2 of the Treaty on the Functioning of the European Union[12] (hereinafter the ‘TFEU’), Art. 58 para 1 of the Protocol (no 3) to the TFEU on the Statute of the Court of Justice of the European Union (hereinafter: the ‘Protocol’). At the same time, from the point of view of literal (linguistic) interpretation rules, it seems important that while in the English version of the Treaties, the above-mentioned provisions use two different terms, i.e. ‘breach’ and ‘infringement’, the French, German and Polish versions refer to the same concept (respectively: la ‘violation’, die ‘Verletzung’, ‘naruszenie’). This justifies attributing the same meaning to all these terms, regardless of the linguistic version of the legal text. In addition, let us note that each of the provisions indicated actually links the ‘infringement’ under analysis to the law. In fact: ‘values’ referred to in Art. 2 TEU (Art. 7.1 and 7.2. TEU), ‘obligation’ of a Member State (Art. 259 para 2 TFEU), ‘essential procedural requirements’ (Art. 263 para 2 TFEU), ‘procedure’ before the General Court (Art. 58 para 1 of the Protocol) and of course ‘Treaties’, ‘rules of law’, ‘Union law’, are legal categories referring to the obligations provided for by law, especially Union law.


The above provisions indicate that the Treaties distinguish at least two degrees of infringement of the law, namely ‘serious’ (Arts 7.1 and 7.2. TEU) and other – ‘ordinary’ (Art. 259 para 2 and 263 para 2 TFEU, Art. 58 para 1 of the Protocol). Furthermore, I consider that Art. 263 para 2 TFEU and the concept of ‘infringement of an essential procedural requirement’ contained therein, allow for a ‘cautious’ distinction (based on a contrario inference) of a third degree – the so-called ‘non-essential infringement’, which refers only to the breach of procedural rules. The latter proposition may be questioned insofar as the term ‘non-essential infringement’ does not actually refer to the nature of the infringement but to the type of provision violated (defining non-essential procedural requirements). However, taking into account the criterion adopted later in this entry for differentiating degrees of infringement, an ‘infringement of a non-essential procedural requirement’ may be called a ‘non-essential infringement’ (as it is indifferent to the values realized, which follows from the fact that the infringed provision itself is irrelevant from the point of view of their realization).


Within the framework of the analyzed concepts of ‘serious breach (infringement)’, ‘ordinary infringement’, and ‘non-essential infringement’ of the law, it is relatively easier to define what the infringement itself is. It means the non-adherence of the individualized behavior of the addressee to a reconstructed normative pattern (legal norm)[13] in terms of any of its elements (one or several) falling within the formula: 1) who and what; 2) under certain conditions; 3) in a certain way; 4) with a certain effect, should do or refrain from doing[14]. The situation is a little more complex on the grounds of an infringement of the rule of law value (Art. 2 in conjunction  with Art. 7 TEU):  in this  case we can speak of a violation of a legal principle. Indeed, by this principle I mean a specific legal norm that directly prescribes the realization of the value[15] to the highest degree actually and legally possible (so-called optimization command, which can be fulfilled in different degrees)[16]. Therefore, in relation to the principles of law, a direct reconstruction of some elements of the above ‘normative pattern’ is not possible. However, if we take into account that legal principles are implemented through more detailed legal norms (‘rules’[17]), this problem is solved to some extent. This assumption also makes it easier to determine the infringement of the legal principle (in the case of the rule of law – infringement of sub-principles stemming from this ‘umbrella principle’[18]), precisely through the prism of the violation of legal norms (‘rules’) serving its implementation.


Coming back to the characterization of degrees of violation of the law under the Treaties, it is worth endorsing the view expressed in the Polish administrative law doctrine by Professor Zbigniew Cieślak that the determination of the normative content of degrees of infringement of the law requires the inclusion in the analysis of the category of values to be realized (protected) in the law[19]. I am convinced of the validity of the thesis referring to the normative-axiological unity of legal regulation, which represents a close connection between legal norms and values. Law has an instrumental character and is used by the legislator, including the EU legislator, to implement specific values understood here as positive states of affairs, objects, facts or events (past, present or future) determining the shape of regulations[20]. This ‘primary’ nature of values in the legal system (including the legal system of the European Union) should, in my opinion, force the assessment of violations of the law not only through the prism of compliance of behavior with individual elements of the ‘normative pattern’, but also (and even primarily) from the point of view of the consequences of this violation in terms of the realization of the value underlying the establishment of the ‘pattern’. Hence, when determining the characteristics of the ‘serious breach (infringement)’ of the rule of law against the background of other degrees of violation of the law, it is precisely the category of values protected in the law that is crucial, and not (only) because the rule of law is expressis verbis defined as a value in Arts 2 and 7 TEU, but because of the aforementioned ‘normative-axiological unity of the legal regulation’.


Taking into account the above assumptions, we can try to define individual degrees of infringement of the law, which are provided for in the relevant provisions of the TEU and TFEU. ‘Non-essential infringement’ of the law is such a non-compliance of the addressee’s behavior with the ‘normative pattern’ that does not violate or is indifferent to legally protected values. Let us recall that in the context of Art. 263 para 2 TFEU, this is a consequence of the infringement of procedural requirements which are not of an essential nature and, therefore, are irrelevant from the point of view of legal values. ‘Ordinary infringement’ of the law means a situation in which the addressee’s behavior deviates from the ‘pattern’ in any of the indicated elements, which produces an effect which is indifferent to (‘non-essential infringement’), colliding with or inconsistent with the protected values (‘essential infringement’). Hence, the degree of conflict may be variable and will be situated within the limits set by, on the one hand, non-essential infringement of the law, and, on the other hand, serious breach (infringement) of the law. Consequently, the essence of the category of ordinary violation of law is the gradual nature of the violation of the law and the values protected in it[21].


Serious infringement of the law (including, of course, serious breach of the rule of law) must be clearly separated from the two above degrees of infringement. The feature that fundamentally distinguishes this  violation from the ordinary one is the non-gradability of the serious breach of the law. It essentially means a violation of the normative pattern of behavior in at least one of the four elements, which  results in either the negation of an element or its absence. The consequence of this is the failure to realize the values protected by law[22]. Other behaviors that partly correspond to the correctly reconstructed elements of the legal norm, that are more or less close to the ‘pattern’ and,  therefore, more or less realize the underpinning values, should be defined as ordinary infringement of the law.


To sum up, a ‘serious breach’ of the rule of law on the basis of Art. 7 TEU identifies such a situation where there has been a total exclusion of the realization of the value. Such an assessment results, firstly, from the lack of realization of at least one of the values underlying the sub-principles constituting the rule of law meta-principle[23], being – secondly – the consequence of specific conduct or number of conducts of a Member State, by which at least one of the elements of the reconstructed legal norm (who and what, under certain conditions, in a certain manner, with a given effect should do or refrain from doing) has been contradicted or failed to occur at all. This, in turn, is subject to verification through the prism of the pattern reconstructed from the legal norms (rules) that serve to give effect to the rule of law principle (the sub-principles constituting it). In other words, the question is whether, in relation to the conduct  by a Member State in breach of a legal norm, there is a margin for assuming that the value of the rule of law is at least to some extent realized, or whether a borderline situation has arisen in which the conduct results in a complete failure to protect such value.


Reference

[1] Official Journal of the European Union of June 7, 2016, C 202, pp. 1-388.

[2] ECLI:EU:C:2023:606, para. 114.

[3] For more on this, see e.g. Pech, 2022, passim; Taborowski, 2019, pp. 59-99.

[4] COM(2003) 606 final (https://bit.ly/3qafpnt) (Accessed: 17 November 2023).

[5] The Communication 2003, p. 7-8.

[6] Crego, 2020, p. 41.

[7] Potacs, 2018, p. 162.

[8] Grzeszczak, 2023, pp. 183-184.

[9] Cf. e.g. Potacs, 2018, p. 162.

[10] Cf. Lenaerts, Gutiérrez-Fons, 2013, p. 47.

[11] Ibid., p. 6.

[12] Official Journal of the European Union of June 7, 2016, C 202, pp. 1-388.

[13] Cf. Cieślak, 1995, p. 4.

[14] Cieślak, 1986, p. 111.

[15] Kordela, 2012, p. 102.

[16] Alexy, 2000, p. 295, 300.

[17] Cf. ibid., p. 295.

[18] Cf. e.g. Communication from the Commission to the European Parliament and the Council of March 11, 2014 ‘A new EU Framework to strengthen the Rule of Law’, COM(2014) 158 final, p. 4 (https://bit.ly/477CHLq) (Accessed: 13 December 2023).

[19] Cieślak, 1995, p. 5.

[20] For more on this, see Majchrzak, 2015, pp. 261-278.

[21] Cf. Cieślak, 1995, p. 5.

[22] Cf. ibid.

[23] Cf. footnote 18.


Bibliography

  • Alexy, R. (2000) ‘On the Structure of Legal Principles’, Ratio Iuris, no (13)3, pp. 294-304.

  • Cieślak, Z. (1986) ‘O “rażącym naruszaniu prawa” w postępowaniu administracyjnym’ [‘On ”Flagrant Infringement of the Law” in Administrative Proceedings’], Państwo i Prawo [State and Law], no 11, pp. 109-111. 

  • Cieślak, Z. (1995) ‘Decyzja administracyjna a rażące naruszenie prawa’ [‘Administrative Decision and Flagrant Breach of the Law’], Glosa [Glossary], no 2, pp. 4-6.

  • Crego, M. D. (2020) ‘Article 7(1) TEU: The preventive arm’ in Protecting EU common values within the Member States. An overview of monitoring, prevention and enforcement mechanisms at EU level, Brussels: European Parliamentary Research Service, pp. 37-47 [Online]. Available at: https://bit.ly/45bIvBV (Accessed: 7 September 2023).

  • Grzeszczak, R. (2023) ‘Komentarz do art. 7’ [‘Commentary od Art. 7’] in Kornobis-Romanowska, D., Grzeszczak, R. (eds.) Traktat o Unii Europejskiej. Komentarz [Treaty on the European Union. Commentary], Warsaw: Wolters Kluwer, pp. 172-195.

  • Kordela, M. (2012) Zasady prawa. Studium teoretyczno prawne [Principles of Law. A Theoretical and Legal Study], Poznań: Wydawnictwo Naukowe UAM.

  • Lenaerts, K., Gutiérrez-Fons, J.A. (2013) ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, European University Institute Working Paper. Academy of European Law, no 9, pp. 1-48 [Online]. Available at: https://bit.ly/47lOrcr (Accessed: 7 November 2023).

  • Majchrzak, B. (2015) Problem delimitacji regulacji administracyjnoprawnej w systemie prawnym (w świetle orzecznictwa Trybunału Konstytucyjnego) [Problem of Delimitation of Administrative Law Regulation in the Legal System (in Light of the Jurisprudence of the Constitutional Court)], Warsaw: Wydawnictwo Uniwersytetu Kardynała Stefana Wyszyńskiego.

  • Pech, L. (2022) ‘The Rule of Law as a Well‑Established and Well‑Defined Principle of EU Law’, Hague Journal on the Rule of Law, no 14, pp. 107-138, https://doi.org/10.1007/s40803-022-00176-8

  • Potacs, M. (2018) ‘Balancing Values and Interests in the Art. 7 TEU Procedure’ in Hatje, A., Tichý, L. (eds.) Liability of Member States for the Violation of Fundamental Values of the European Union, Europarecht, supplement no 1, Baden-Baden: Nomos, pp. 159-167.

  • Taborowski, M. (2019) Mechanizmy ochrony praworządności państw członkowskich w prawie Unii Europejskiej. Studium przebudzenia systemu ponadnarodowego [Mechanisms for the Protection of the Rule of Law of Member States in European Union Law. A Study of the Awakening of the Supranational System], Warsaw: Wolters Kluwer.

Legal sources

  • Treaty on European Union (Official Journal of the European Union of June 7, 2016, C 202, pp. 1-388).

  • Treaty on the Functioning of the European Union (Official Journal of the European Union of June 7, 2016, C 202, pp. 1-388).


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