Rule of law framework - concept and historical development

FUNCTIONALISING THE RULE OF LAW IN THE EUROPEAN UNION Mokrá – Blažo – Beleš – Kováčiková – Máčaj 2023 Functionalising the rule of law in the European Union / Lucia Mokrá, Ondrej Blažo, Hana Kováčiková, Adam Máčaj, Andrej Beleš. Bratislava : Comenius University Bratislava, Faculty of Law, 2023. 200 p. ISBN 978-80-7160-711-3. © Authors: Mgr. Adam Máčaj, PhD. (chapters 1 and 2) doc. JUDr. Hana Kováčiková, PhD. (chapter 3) doc. JUDr. Ing. Ondrej Blažo, PhD. (chapter 4) prof. JUDr. PhDr. Lucia Mokrá, PhD. (chapter 5) doc. JUDr. Andrej Beleš,PhD. (chapter 6) Reviewers prof. Sara Tonolo, PhD. Prof. dr hab. Monika Florczak-Wątor ISBN (e-book) 978-80-7160-711-3 This work is licensed under Attribution-NonCommercial-NoDerivatives 4.0 International. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/ This license requires that reusers give credit to the creator. It allows reusers to copy and distribute the material in any medium or format in unadapted form and for noncommercial purposes only. Publication was supported by the project: Jean Monnet Centre of Excellence “Rule of Law in the European Union” Grant No. 620758-EPP-1-2020-1-SK-EPPJMO-CoE Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Education and Culture Executive Agency (EACEA). Neither the European Union nor EACEA can be held responsible for them. CONTENT LIST OF ABBREVIATIONS ........................................................... 5 I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT ......................................................................... 7 1.1. THE VALUE OF VALUES – ARTICLE 2 TEU IN THE LEGAL ORDER OF THE EUROPEAN UNION ............................................................................................................ 9 1.2. RULE OF LAW AND ITS PLACE IN THE VALUE SYSTEM OF THE EUROPEAN UNION .. 15 II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EUROPEAN UNION .................................................................. 33 2.1. IS ARTICLE 7 OF THE TREATY ON THE EUROPEAN UNION STILL A PART OF THE RULE OF LAW FRAMEWORK? ......................................................................................34 2.2. RULE OF LAW PROTECTION IN THE PRACTICE OF INSTITUTIONS OF THE EUROPEAN UNION ...........................................................................................................38 2.3. EUROPEAN COMMISSION AND THE RULE OF LAW FRAMEWORK ........................ 40 2.4. ANNUAL RULE OF LAW DIALOGUE AND THE COUNCIL OF THE EUROPEAN UNION .47 2.5. THE RULE OF LAW MECHANISM AND THE RULE OF LAW REPORT – ENGAGING WITH THE MEMBER STATES EN MASSE ........................................................................55 III. RULE OF LAW ENFORCEMENT: LEGAL AND FINANCIAL IMPLICATIONS ........................................................................ 63 3.1. LEGAL INSTRUMENTS ................................................................................. 63 3.2. FINANCIAL INSTRUMENTS ............................................................................67 IV. PROCEDURAL AUTONOMY AND RULE OF LAW ................... 71 4.1. THE CONCEPT OF PROCEDURAL AUTONOMY ...................................................72 4.2. SOURCES FOR PROCEDURAL AUTONOMY IN PRIMARY LAW .............................. 73 4.3. IS ”PROCEDURAL AUTONOMY” REALLY “PROCEDURAL”? ..................................79 4.4. DOES ”PROCEDURAL AUTONOMY” REALLY MEAN “AUTONOMY”? ..................... 82 4.5. MORE TESTS FOR “PROCEDURAL AUTONOMY”: TEST NO. 1 – JUDICIAL PROTECTION .....................................................................................................................87 4.6. MORE TESTS FOR “PROCEDURAL AUTONOMY”: TEST NO. 2 – RULE OF LAW....... 89 4.7. CONCLUSIONS.......................................................................................... 90 V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE ............. 93 3 5.1 PREVENTIVE MEASURES FOR PROTECTION OF RULE OF LAW ............................... 94 5.2. CORRECTIVE MEASURES TO RULE OF LAW ...................................................... 95 VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS ANALYSIS OF IMPLEMENTATION OF THE RULE OF LAW IN SLOVAKIA AND CZECHIA ....................................................... 103 6.1. GENERAL DEVELOPMENT OF THE RULE OF LAW (HORIZONTAL)........................ 106 6.2. STAKEHOLDERS' VIEWS ON THE STATE OF THE RULE OF LAW IN THE SLOVAK REPUBLIC AND THE CZECH REPUBLIC AND AN ANALYSIS OF THREE SELECTED RULE OF LAW ISSUES ................................................................................................... 113 6.3. CONCLUSIONS .........................................................................................172 BIBLIOGRAPHY ..................................................................... 177 LIST OF ABBREVIATIONS CFR CJ EU CoE ECHR ECtHR EU TEU TFEU UN Charter of Fundamental Rights of the European Union Court of Justice of the European Union Council of Europe European Convention on Protection of Human Rights and Fundamental Freedoms European Court for Human Rights European Union Treaty on European Union Treaty on Functioning European Union United Nations 5 FOREWORD The book determines and analyse the rule of law as living concept with wide expressions and impact on whole EU activities matrix. The goal is to functionalise the Rule of Law, promote its automatic appraisal and determine its scope and limits. The book is outcome of the scientific project and the long-continuing research on the rule of law in the European Union, its different application aspects – legal, political, and financial. It underlines the importance of the procedural autonomy and the rule of law and illustrate the rule of law application in the EU through the existed legislation, orders and opinions and case law. The book is addressed to everyone interested in the European Union, its work and one of the fundamental values – rule of law. It also provides an opportunity for policymakers and professional groups in EU Member States at all levels to hear the consensus statements as they relate to the quality of application of EU Law, to raise public awareness of critical issues and to increase visibility of EU values. The focus on contemporary development both on European and national level highlights the need to persistently sustain and protect fundamental values, the roots of the European Union and basis of the legal orders of its respective Member States. The regional focus on the existed case-law to Poland and Hungary, but also deep analysis of the application of the rule of law in Slovakia and Czechia underlines the need to systematically monitor and assess the legal development and implementation practice, with support of other rule of law frameworks both on Council of Europe and United Nations level. I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT “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 in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail.” When reading Article 2 of the TEU, one can easily skim through its rule of law component, text making it in no way highlighted at the forefront of the values on which the EU is founded. The values enumerated all resemble a united pedestal, all united as foundational tenets the EU aspires to, and Member States share them unequivocally. Even when looking at decades’ past, when the introduction of the notion of the rule of law into the primary law occurred, there is little to suggest rule of law had somehow distinct status or was preferred to democracy, human rights, or other values that were included in preamble to the Single European Act of 1986. In fact, if anything, rule of law was only added to these values (called principles at the time) listed in the preamble to the TEU only later, with the Maastricht Treaty of 1992. Still, only the Amsterdam Treaty of 1997 incorporated rule of law, democracy, human rights and others into foundational principles, ones shared by the Member States. In this era, principles were also starting to assert greater role in developing the EU law, with concerns over upcoming EU enlargement and respect thereof on part of the prospective new Member States (Smilov, 2006). On the other hand, these concerns eventually led to the 7 ADAM MÁČAJ principles being also included by the EU into a set of political conditions it could use to seek performance from candidate countries (Knežević Bojović & Ćorić, 2023, p. 42). Candidate countries, by joining the EU, voluntarily agree with these now explicitly recognized values, which they undertake to respect and share with other Member States as a unified system of values, and failure to respect thereof makes it impossible for them to become Member States (Kochenov, 2008, p. 21). On the other hand, values in the EU started to play a more prominent role even internally in this period. Albeit the sanction mechanisms were considered already “against the backdrop” of Greece joining the EU as a new Member State, the proper enforcement mechanism, nowfamous Art. 7 TEU, was included much later on, in the Amsterdam Treaty (Kochenov, 2018, pp. 134–135), at the same time as the principles were included in the binding text of the primary law. Subsequent development of Art. 7 procedure in the Treaty of Nice of 2001, expanding the procedure with a preventive mechanism, in fact was however, somewhat paradoxically, not influenced by any of the enlargement processes, when it took political changes in an already established democratic Member State, Austria, to introduce preventive aspect on top of the punitive one (Fekete, 2017, pp. 8–10; Kochenov, 2018, p. 136). The development of primary law, at least thus far, has been concluded by the Lisbon Treaty, which left the Art. 7 mechanism without amendments, but shifted from viewing of Art. 2 TEU as listing principles the EU is founded on into values, which are shared by the Member States, and changed their enumeration into the current wording. This wording of Art. 2 was preserved from the earlier changes, incorporated into Art. I-2 of the abandoned Constitutional Treaty, which therefore found its way into the primary law even after demise of the instrument it originated in. In doing so, the principles and legal obligations arising I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT therefrom, were given a shared purpose in being declared as values (cf. Schroeder, 2023, p. 6). 1.1. THE VALUE OF VALUES – ARTICLE 2 TEU IN THE LEGAL ORDER OF THE EUROPEAN UNION Did the introduction of these values into the primary law bear any legally significant role, or was it rather indeed a political exercise? In principle, two ideas about relevance of Art. 2 TEU (including its predecessors) can be identified. Firstly, it has been argued that values were in fact already recognized and introduced into the EU law as principles long before,1 through jurisprudence, making them effective and legally binding irrespective of their recognition and codification into primary law. Accordingly, their introduction into the TEU is viewed as rather a matter of identity and legitimacy building between the EU and its Member States, as well as its external relations vis-à-vis third countries and the broader international community (Schroeder, 2021). It is also supposedly signifying the deepening of the European integration, with the EU transcending mere considerations of the internal market (Schroeder, 2023, p. 5). In this view, it seems that although the legal recognition of values, including the rule of law, bears relevance, legal sources preceding introduction of principles and values into the primary law are in itself sufficient to grasp their normative content. Indeed, it is even argued that it is almost counterproductive to introduce values into legal system that already recognizes them, as the values are regarded merely as vaguely delineated preferences of specific legal system, while in fact principles are more unequivocal in specifying exact course of conduct to be taken, making principles a 1 After all, even values, recognized nowadays in Art. 2 TEU, found their way into primary law formerly as principles. 9 ADAM MÁČAJ better basis to be used in deciding disputes (Fernandez Esteban, 1999, pp. 40–41). On the other hand, by including values into the primary law, these were allegedly meant to gain legal effect, with the aim to allow their legal interpretation, create binding effects and future regulation of the conduct of the EU, as well as its Member States (Blanke & Mangiameli, 2013, pp. 115–116). The values (or principles) were undoubtedly introduced as a binding law into the treaties, the question that remains is more of a doctrinal nature as to the character and legal force of these values, in essence either being viewed as a separate legal norm, another expression of principles already recognized, or entirely new legal category (Spieker, 2019, pp. 1199–1200). Concerning these ambiguities, the most recent legally authoritative discussion and recognition of nature of the EU values comes from the jurisprudence of the CJEU in proceedings concerning Commission’s action against Poland related to ban on questioning independence and impartiality of Polish judges in relation to governmental reforms, and disciplinary liability of judges seeking to implement EU law against the government.2 In line with the historical development and doctrinal views established above, the CJEU similarly recognized the particular importance of the EU values when it comes to accession criteria for new Member States wishing to join the EU (paras. 64 and 65 of the judgment). It also pointed out that the values are necessarily shared by all Member States, which have voluntarily committed to follow them, and this shared value system is necessary basis for operation of the EU law, e. g. the principle of mutual trust (para. 66). Most importantly, the CJEU recalled that EU values in Art. 2 are “not merely a statement of policy guidelines or intentions”, but in fact include specific legally binding obligations which the Member States have assumed by accepting these values and are obliged to follow (para. 67 and 68). 2 Judgment of 5 June 2023, Commission/Poland, C-204/21, EU:C:2023:442. I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT In this determination, the CJEU follows the similar conclusions as to the nature of the EU values, which were already made by other institutions (European Commission, 2019), but also directly declared in secondary law.3 The binding effect of EU values has been thus not only confirmed in variety of legal sources, now including jurisprudence of the CJEU, but provided a development over earlier cases, where Art. 2 TEU has been dealt with as a backdrop in considering obligations stemming from provisions such as Art. 47 of the Charter, and separate consideration of Art. 2 was held to be superfluous.4 However, in considering the everdeveloping landscape of the rule of law crisis, the CJEU nowadays indeed does consider Art. 2 also directly, in deciding cases and interpreting the provision.5 Interestingly enough, even the Commission itself took the mantle and utilized Art. 2 itself for the first time ever as a self-standing provision, infringement of which can be actionable in infringement proceedings under Art. 258 TFEU, when it sued Hungary for changes targeting minority gender identity and sexual orientation,6 the first time it has used Art. 2 in infringement proceedings (Kaiser, 2023). In this regard, the most recent development on the institutional level indeed seems to indicate that Art. 2 TEU has itself indeed been 3 E. g. recital 5 of the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020. 4 Cf. judgment of 19 November 2019, A.K. and others, C-585/18, C-624/18 and C-625/18, EU:C:2019:982, paras. 168-169. 5 Cf. judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ v. Inspecţia Judiciară; Asociaţia ‘Forumul Judecătorilor Din România’ and Asociaţia ‘Mişcarea Pentru Apărarea Statutului Procurorilor’ v. Consiliul Superior al Magistraturii; PJ v. QK; SO v. TP and others; Asociaţia ‘Forumul Judecătorilor din România’, Asociaţia ‘Mişcarea Pentru Apărarea Statutului Procurorilor’ and OL v. Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie - Procurorul General al României; AX v. Statul Român - Ministerul Finanţelor Publice, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 a C-397/19, EU:C:2021:393; judgment of 22 February 2022, RS, C-430/21, EU:C:2022:99. 6 Case C-769/22: Action brought on 19 December 2022 – European Commission v Hungary, OJ EU C 54/16, 13.2.2023. 11 ADAM MÁČAJ reinforced by its links to other provisions of the primary law, and in turn supports their enforcement (cf. Spieker, 2019, pp. 1204–1207). Yet thus far, it remains to be seen whether Art. 2 TEU will have to be enforced independently, and whether situation will arise where it cannot be sufficiently intertwined with other provisions, ones more extensively adjudicated in already existing jurisprudence. The development of principles, as well as their later transformation into shared values of the EU nowadays substantiates the increasingly political nature of the integration, transcending the economic interests and goals of the past. While these remain central to the working of the EU, the primary law nowadays was reformed to base the legal order and operations of the EU as a whole, as well as its Member States, around fundamental values that are grounded in rules considered as essential characteristics of European democracies (Weatherill, 2016, p. 394). While this development of common values leads to strengthening the European integration, and through Art. 2 TEU, the Member States undertake to fulfil the recognized values and abide the norms they encompass. At the same time, recognizing the EU as built on more than economic integration necessarily encompasses an entirely new challenges, many of which have naturally crystallized in recent years. The more intense activity EU exercises in political integration comes hand-in-hand with the subsequent necessity to balance the EU law- and policymaking, with interests of Member States in a multitude of sensitive areas. Subsequently, when clashes between the EU and Member States arise regarding perceived disrespect for values, the bloc as a whole may find itself in a precarious situation. Should the EU ignore or tacitly accept Member States flouting of the shared EU values, even though it undertook to respect them by virtue of its membership, may run risk of rendering Art. 2 TEU inapplicable and reduce it to a mere political declaration. Subsequently, it would even put the very notion of shared and unified values across the EU into question, and risk I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT fragmentation of European integration. Moreover, the omission of the EU to properly respond to violations of its values by its own Member States might itself risk proliferation of these breaches, encouraging them or even signalling that the institutions view contentious conduct as in fact within boundaries of permissible Member State action (cf. von Bogdandy, 2021, p. 79 et seq.). Naturally then, the risk of similar passivity is nowadays all the more exacerbated by the fact that the EU values have been already firmly established in institutional practice and discourse, and most of all, were recognized to be legally binding in the jurisprudence of the CJEU.7 Yet even in the absence of overt flouting of the EU values, their binding force and effect on Member States are not without complications. Considering the EU values and their interaction with a variety of legal orders among the Member States presents a distinct difficulty in the interpretation of Art. 2 as well, when taking into account the significant ambiguity of various components of Art. 2, leaving open to interpretation the specific principles or norms that are to be derived therefrom. Consequently, it should not come as a surprise that, apart from the EU institutions, all national authorities and judicial bodies may arrive at different conclusions as well, using different interpretive approaches in various legal systems. One such difference notes approaches regarding interferences with right to privacy, electronic communications, or economic freedoms, where Member States of eastern Europe and with history of authoritarian regimes have taken stronger position towards protection of human rights of individuals, which were not protected sufficiently prior to accession to the EU. On the other hand, the remaining states have adopted preference towards stronger integration over these concerns (cf. Bobek, 2017). 7 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paras. 29-33; judgment of 10 December 2018, Wightman, C-621/18, EU:C:2018:999, para. 62; judgment of 24 June 2019, Commission/Poland, C-619/18, EU:C:2019:531, para. 42; judgment of 5 June 2023, Commission/Poland, C-204/21, EU:C:2023:442, para. 67. 13 ADAM MÁČAJ Notwithstanding the fact that all the countries concerned shared the same set of values and as outlined above, they have all voluntarily agreed to be bound by them and fulfil them, it is clear that Member States may be influenced by their history, national identity, and legal doctrine, in interpreting and giving effect to Art. 2 TEU. This may be particularly manifest in cases of specific themes, especially those with political and societal connotations, leading to situations where even shared values in different Member States may lead to different conclusions as regards their content and application. Even more contentious points then may easily arise in situations where certain Member States openly undermine the shared value system across the EU and contend that the EU values do not mandate same approach, as all Member States do not share the same system and their national identity requires a separate status for their policies (cf. Kiššová, 2022, pp. 137–138, 147). The position of the EU and its institutions is therefore all the more important in comprehensively developing integration and application of the EU values, in order to breathe life into Art. 2 on an EU-wide level. It is accordingly in fact unsurprising that deficiencies of the EU institutions in this regard open the EU itself to criticism. Irresponsible omissions in safeguarding EU values not only undermines the binding strength of Art. 2 TEU, but also erodes the view of EU capabilities and its ability and willingness to stand up for its own values (Alemanno, 2021; Oliver & Stefanelli, 2016; Scheppele, Pech, & Platon, 2020). The EU however also stands before another challenge in protecting its own values, namely situations when conduct of certain Member States does raise implications for multiple values at the same time. The risk arises when a single normative rule or principle is regarded as a single overreaching core of the entirety of multi-faceted value system of the EU (cf. Scheppele, Kochenov, & Grabowska-Moroz, 2021, p. 9). For example, the yearslong conflict between the EU on the one side and I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT Hungary, later joined by Poland on the other, is the dispute whether, or to what extent, rule of law should be subject to the rule of majority and the desire of elected representatives, powered by democratic will of the people, to shape and form judicial systems of their countries. In such way, the question to be resolved is whether elected government may take steps, giving effect to the value of democracy, when those steps at the same time may threaten the rule of law. The conundrum naturally is that both democracy and the rule of law are recognized as values that are enshrined in Art. 2 TEU (von Bogdandy, 2021, p. 77). Both values that may mutually clash are therefore a) common to the Member States, and b) placed on the same level, without distinction as to their mutual relation and hierarchy. Due to the lack of such formalized distinction, no binding way to resolve conflicting situations to the absolute primacy of one of the values is possible, and the other way around, all conflicts between the specific values will have to be considered on a case-by-case basis (Blanke & Mangiameli, 2013, pp. 117–118). 1.2. RULE OF LAW AND ITS PLACE IN THE VALUE SYSTEM OF THE EUROPEAN UNION So far, values of the EU in abstract have been discussed, along with their implications for the EU and its Member States. In order to properly discuss the role EU plays in safeguarding rule of law as one of its values specifically, in the first place, it is necessary to more precisely delineate what the rule of law means, in particular what norms or obligations have the Member States undertaken by the inclusion of rule of law into Art. 2 TEU, what is the relationship of these rules in relation to other values, and how does the EU and its institution approach rule of law protection within its conduct. The components of rule of law are most often outlined in a broadly reminiscent way across different viewpoints, with little contest taking 15 ADAM MÁČAJ place over the core principles falling under the notion. In the narrowest sense, the components without which rule of law may not exist are e. g. necessity of a system where government authorities and officials are, equally to all citizens, bound by law, and exercise their powers under limitations set forth by law. Such limitation of arbitrary exercise of power with legal norms is the fundamental idea of rule of law conceptions in contemporary doctrine (Mokrá, Juchniewicz, & Modrzejewski, 2019; Tamanaha, 2012). These criteria come from viewpoints that regard rule of law as a term to be construed very strictly, to limit the creeping introduction of other rules into the term, in order to avoid damaging changes to its stance and undermining the core tenets (and possibly make it possible to eliminate the precise issue the EU faces today, where rule of law interferes with other values for a mutually intertwined set of rules). Yet it doesn’t mean that rule of law, even in its narrow scope, does not encompass specific rules, which include foreseeable law that applies to everyone equally, that is accessible, applicable on every individual, and is enforced by bodies acting against law-breaking (Tamanaha, 2012, p. 233). The real complexities of rule of law come afterward precisely when it comes to discussion of what other principles or binding rules states, or public authorities must respect in order to satisfy the rule of law in its entirety. For example, equality before the law can be easily expanded to include non-discrimination, opening the rule of law to further considerations as to whether it necessitates ensuring protection of human rights. On the other hand, application of law by public authorities may lead the discussion into the realm of what status should those bodies have, whether they should derive their claim to power democratically, or whether those bodies should even be independent and impartial from the executive authorities.8 Thus, the most common 8 Perhaps precisely this was the consideration that led eventually the CJEU to declare Art. 19 TEU and specific considerations of judicial independence as „concrete expression I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT point of divergence between various sources of law, be it binding or not, is what exactly remains within the ambit of the rule of law, and where its domain no longer reaches. Accordingly, the former view of rule of law as prohibiting arbitrariness, equality before the law and effective protection of fundamental rights, especially through effective judicial remedies (Dicey, 1982, p. 110 et seq.), has been expanded throughout the historical development, to include e. g. legal certainty and predictability of the law, good faith, principle of no punishment without law, fair trial, or independence and impartiality of the judiciary (Merrill, 2022, pp. 685–687; Rawls, 1999, pp. 208–210). In international law, UN views rule of law as a “principle9 of governance” more extensively, including also rules such as separation of powers, participation in decision-making, and subordination of the law to international human rights norms (United Nations, 2004, p. 4). Even the Council of Europe Commission for Democracy through Law (Venice Commission), which has influenced views of EU institutions as regards components of the rule of law has acknowledged the variety of views as regards the breadth of the rule of law and various obligations it imposes on those in power (European Commission for Democracy through Law, 2009, p. 2 et seq.), which it however noted mostly converge around several recognized components. It outlined these as encompassing not only legality, legal certainty, prohibition of arbitrariness, but also access to justice, respect for human rights, non-discrimination and equality before the law, as well as democratic process of law-making (European Commission for Democracy through Law, 2011, p. 10), going beyond the “thin” cersion of the rule of law, mostly concerned with the issues of predictability of the law (cf. Merrill, 2022, pp. 681–684). to the value of the rule of law“ (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paras. 32, 41, 43. 9 Keeping in line with the pre-Lisbon terminology of rule of law as a principle. 17 ADAM MÁČAJ Even within the EU and its institutions, the Venice Commission influenced their own view of rule of law for the purpose of protecting it as a value of the EU (Klamert & Kochenov, 2019, p. 28), and the EU itself adopts a broad understanding of the rule of law, expanding the core content with additional rules. It should come as no surprise, given the fact that, through this broader view of the rule of law, the EU can in fact tie and fulfil even other values listed in Art. 2 TEU into a single narrative. Although the possible conflict between democratically elected government and rule of law has also been considered above, at the same time, the component of judicial independence and effective remedy, while firmly considered to form a part of the rule of law, is at the same time internationally recognized human right which the EU protects and serves in the proper administration of justice. Thus, the norm of independent judiciary required by the overarching value of the rule of law serves at the same time to secure at least two other values set forth in Art. 2 TEU, and potentially plays a role in safeguarding even other values more indirectly.10 Naturally, this is not a one-way street, and other organizations and their activities, dedicated e. g. towards human rights protection predominantly, do play an important role in safeguarding rule of law in the Member States as well.11 In sum, various entities and activities therefore may contribute to protecting the EU values, and specifically the rule of law, at the same time, given the link rule of law utilizes to other values under Art. 2 TEU. Sometimes, the rule of law protection may not even be the primary objective, yet its principles are obviously fulfilled even through pursuing different aims. In essence, it can be even useful to keep the rule of law without definition and focus instead on the relevant components it 10 E. g. by providing judicial protection from discrimination, or safeguarding equality, freedom or democracy. 11 A good example is the human rights-oriented jurispurdence of the European Court of Human Rights concerning changes to composition of courts in Poland and their compliance with right to a fair trial (cf. Máčaj, 2021). I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT entails, in order to properly assess the best measures to be adopted in protecting and enforcing the specific components of the rule of law. In fact, the Council of Europe is wary of attempts to adopt a specific definition of the rule of law, and even cautions against the practice, which could unnecessarily restrict or overlook the influence that democracy and human rights bring to the rule of law, and vice versa (Council of Europe Committee of Ministers, 2008, para. 28). Considering this fact, along with the historical development of the notion of rule of law long preceding development of the EU itself, it perhaps comes as no surprise that rule of law entered the EU law and jurisprudence long before the Lisbon Treaty, with its binding text setting forth rule of law as a value of the EU. In fact, the rule of law has been recognized by the CJEU already prior to the Maastricht Treaty and its development of principles of the EU. At that time, although no similar commitment had been established in the primary law, the CJEU held it to be a basis on which the EU was based, and held that the fundamental aspect of the rule of law outlined above, that of judicial review, is a fundamental characteristic of the EU law. Interestingly enough, the CJEU established the principle in an action for annulment against the Parliament, but reasoned that not only the EU cannot escape judicial review, but included also the Member States in the matrix, where the same judicial review of compliance with primary law has been found to be based on the rule of law,12 even though at the time, Member States themselves have not yet recognized primary law to include rule of law as a value binding upon them. Nevertheless, the CJEU this way introduced the rule of law into the EU legal order in such a way, where in spite of the differing conceptions in the Member States as regards the precise content of the rule of law, judicial review has been shaped as a rule of law component, forming the essential aspect of the rule of law, which is of such a fundamental nature across the EU that 12 Judgment of 23 April 1986, Les Verts/Parliament, 294/83, EU:C:1986:166, para. 23. 19 ADAM MÁČAJ makes it an essential component of the EU law and law of any Member State (Blanke & Mangiameli, 2013, p. 132), although in recent years, it is apparent that even such common value is approached differently by various Member State governments (Ozoráková, 2022, p. 196). This earlier history of rule of law as a principle (before being turned into a value) of the EU law goes to show that later development, where the CJEU held values as such to be legally binding, once they were introduced into the primary law,13 it has followed a similar rationale of establishing the values as forming essential shared norms amongst the Member States, albeit at this time already being supported by the changes made to the wording of the primary law since the Maastricht Treaty, introducing the EU values explicitly. Even before the CJEU has developed rule of law as a legal principle binding the EU and its Member States, it has been referred to by other institutions, yet the legal definition of what rule of law entails and requires has historically been mostly the role for the CJEU and its jurisprudence (Von Danwitz, 2018, pp. 4–9). The rule of law itself in the EU law has been elaborated on through a variety of opportunities as well, with the judicial interpretation not being the only source for determining its content. Through these approaches, it can be ascertained to what breadth has the EU gone for in determining various obligations stemming from the rule of law as its value, whether it has remained within the restrictive and narrow definition, or has gone to the broader understanding of the value, and to what extent it utilizes rule of law and its protection to extend to cover other values and serve as a vehicle for their protection as well, as Pech argues (2010). 13 See the jurisprudence outlined above, e. g. judgment of 5 June 2023, Commission/Poland, C-204/21, EU:C:2023:442. I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT Among the values included in Art. 2 TEU, rule of law had not been the only one ascertained originally by the CJEU as forming part of the EU legal order. Even before the judgment in Les Verts/Parliament, it has similarly found human rights protection to be “integral part of the general principles of law”14 in the EU. Especially given the fact that special significance in the EU observance of human rights is given to the European Convention on Human Rights,15 human rights as another value of Art. 2 TEU were recognized by the CJEU as binding upon the EU and its Member States before introduction of values into the primary law. Finally, even the requirement of judicial protection, outlined in Les Verts as component of the rule of law, has been just several weeks later in the Johnston judgment also established to stem from the ECHR and the requirement of human rights protection at the same time.16 Therefore, it seems that even prior to constituting the human rights protection and rule of law as values of the EU on an equal level in Art. 2 TEU, it is apparent that both general principles of EU law were not only recognize by the CJEU, but both also converged in requiring proper judicial protection and safeguards under the EU law, in accordance with Arts. 6 and 13 of the ECHR. This way, issues of judicial protection and associated issues recognized as requirements of both rule of law and human rights protection, such as the much-discussed judicial independence, may be viewed as broadly encompassing multiple values, observance of which Art. 2 TEU requires. That way, there is a broad basis for the EU to use value-based narrative to push forward specifically with measures aimed at protecting judicial independence. Even though the EU has no consistent definition or list of elements required by the rule of law and Art. 2 TEU, which it could use universally 14 Judgment of 17 December 1970, Internationale Handelsgesselschaft, 11/70, EU:C:1970:114, para. 4. 15 Judgment of 14 May 1974, Nold/Commission, 4/73, EU:C:1974:51, para. 13; judgment of 18 June 1991, ERT, C-260/89, EU:C:1991:254, para. 41; judgment of 3 September 2008, Kadi, C-402/05 P and C-415/05 P, EU:C:2008:461, para. 283. 16 Judgment of 15 May 1986, Johnston, C-222/84, EU:C:1986:206, para. 18. 21 ADAM MÁČAJ in all situations (cf. Pech, 2016, p. 10), it is evident that rule of law became intertwined with other values set forth in primary law in such a way that judicial independence is of exceptional importance for the EU when it comes to securing rule of law compliance. Of particular importance to these overlapping notions is also the more recent development, starting with the judgment in the case of Associação Sindical dos Juízes Portugueses (ASJP)17 in 2018. In the case, ironically concerning Portugal and removed from the current rule of law crisis in now-notorious Hungary or Poland, the CJEU outlined the mutual interdependence of all three notions, judicial independence, protection of human rights, and the rule of law. It recognized that human right to a fair trial, recognized internationally, and specifically in Art. 47 of the Charter in the EU law, encompasses judicial independence, and that effective judicial protection in accordance with these norms forms a part of the rule of law, a value recognized in Art. 2 TEU. Interestingly, the CJEU went on to establish judicial independence as part of effective judicial protection not purely due to its nature as a human right, and therefore a value of the EU, but found the basis for such obligation of judicial independence as essential for functioning of the preliminary ruling.18 This seems to be an excessively narrow rationale for introducing judicial independence into Art. 19, and by extension into Art. 2, and is one ground of criticism towards the ASJP judgment (cf. Torres Pérez, 2020, p. 109). At the same time, the CJEU established that Art. 19 TEU relates to “fields covered by Union law” and accordingly, the limitation established in the Charter, binding Member States with its provisions 17 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117. 18 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, para. 43. I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT only when they are implementing EU law, does not apply.19 Instead, it established judicial independence to be binding on the Member States more broadly, by virtue of utilizing Art. 19 TEU and Art. 2 TEU as a basis instead of the Charter, even at the cost of casting doubts upon previous case-law, where the scope of the Charter overlapped with the EU law as such, which no longer seems to be the case in all circumstances (Bonelli & Claes, 2018, p. 631). Consequently, now there is a situation where there are multiple sources as legal authorities obliging the Member States to respect the of rule of law and judicial independence and mandate its protection by the EU. However, the precise scope of these authorities is differentiated in the text, and for example Charter itself, with the human rights aspect, could not be applied to all Member States’ misconducts, particularly not on those done without implementing any source of EU law. On the other hand, by utilizing Art. 19 and the applicability of rule of law and judicial independence in all fields covered by the EU law, even in situations where it is not actually being implemented, Charter and its interpretation (and international human rights standards on judicial independence more broadly) may find its way into legal disputes even without being applicable under its Art. 51. In that way, through the intertwined narratives of rule of law and human rights protection, the former can be developed and clarified through the latter, even if they are nominally both values of equal strength. Although the fundamental human rights instrument of the EU might not be applicable to a specific dispute, the conjoining of both values in judicial interpretation, like done in the ASJP judgment, allows extensively developed human rights jurisprudence and other standards to be introduced into the EU legal system as components of the rule of law, and consequently give rise to utilization of mechanisms designed to protect EU values, not merely 19 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, para. 29. 23 ADAM MÁČAJ mechanisms of individual human rights protection. At the same time, the rule of law and judicial independence, along with human rights protection, then serve to reinforce the values of the EU themselves, making them sufficiently specific, yet broadly applicable in their scope (Spieker, 2019, pp. 1205–1206). Naturally, this broad understanding of judicial independence through the lens of both human rights and the rule of law does not come without its own problems, such as overly excessive scope, resulting to possibility of expanding sanction mechanisms for violations of rule of law as an EU value to a broad range of situations related to fair trial, moving beyond judicial independence and systematic threats thereto (Torres Pérez, 2020, p. 112). Yet it remains undisputed that the ASJP became a landmark judgment which allowed the judicial independence in the EU law to transcend its traditionally understood position within the value of human rights protection and the Charter. Instead, it became the linking rule connecting rule of law and the human rights into a coherent framework for EU action in protecting its values. This way, the ASJP laid down groundwork for operationalizing and functionalizing the rule of law in the EU, arming it with the narrative and normative power of human rights standards and jurisprudence in later cases, allowing it to be used as source of binding legal obligations. Be it other preliminary rulings concerning doubts about reforms of judiciary in Poland, or direct infringement proceedings challenging the same, the judicial independence found its firm footing as a method of protecting EU values, although the CJEU, in the ASJP judgment itself, held judicial independence to be respected in Portugal itself. Regarding the relationship between the rule of law and other values of the EU, it is apparent that multiple components of the rule of law have already been established as separate values, granted independent recognition the primary law (and, in certain cases, not merely in Art. 2 TEU with its broad enumeration). In considering these various I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT components, it is peculiar that they are at the same time recognized by doctrine as forming part of the rule of law, while they are, on the other hand, recognized independently in Art. 2 TEU, apart from the rule of law. If one would take a reductionist approach, the list of values of the EU could potentially even be substantially shortened, should it include explicit reference to rule of law, while removing references to its components, provided that the rule of law is interpreted in its broader scope. Similar approach is taken indeed, in the Regulation on a general regime of conditionality for the protection of the Union budget (the Rule of Law Regulation),20 which similarly deals with relationship between various values of the EU and obligations they impose, and similarly recognizes interplay between rule of law and judicial independence, as well as human rights,21 in a way similar to jurisprudence of the CJEU. Even such a recent legislation proves the EU still actively engages in shaping the understanding of its values, as well as contribute to their effective enforcement. The preamble, much like existing jurisprudence and doctrine, similarly emphasizes that there is an essential role for the rule of law to properly fulfil other values of the EU, in particular democracy and fundamental rights, and makes the link between democracy and human rights vis-á-vis the rule of law a two-way street, arguing that “[t]here can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa”.22 20 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020. 21 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020, recital 12. 22 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020, recital 6 (emphasis added). 25 ADAM MÁČAJ However, it is worth noting that this broad notion of the rule of law in the EU seems to adopt extensive understanding of what the rule of law entails. Under some views, rule of law in fact does not presuppose democracy, and the rule of law can exist even in states that are not democratic, while on the other hand, democracy cannot exist without the rule of law, and similarly, human rights protection is sometimes not considered a necessary component of the rule of law (cf. Tamanaha, 2004, p. 37, 2012, pp. 234–235). Considering this viewpoint of rule of law as a necessary precondition for democracy, as well as democracy being recognized as a value of the EU, much like the rule of law and protection of human rights, there is a possibility of even introducing democracy into the narrative of the EU institutions in their action aimed towards putting values into full effect. Nowadays, the narrative has been limited to the abovementioned notions of rule of law, protection of human rights, and judicial independence as their intersecting point. Putting democracy in the centre stage of enforcing EU values could thwart the assertions that the value-breaking countries are utilizing the powers conferred on their governments by elections, and that the EU is bypassing the democratic process. On the other hand, question to be resolved first is whether democracy as an all-encompassing narrative instead the rule of law would link the conduct of the EU institutions sufficiently strongly with protection of judicial independence, a concept more distant from the value of democracy than rule of law or protection of human rights. Another essential contribution of the Rule of Law Regulation to the development of the EU law is the definition of rule of law itself, in a legally binding manner, listing specific principles that the rule of law entails, including the “principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT powers; and non-discrimination and equality before the law”.23 Two specific issues are necessary to consider when dealing with the enumeration in the Rule of Law Regulation, the issue of terminology and the issue of specificity. Firstly, under Rule of Law Regulation definition, rule of law as a value encompasses specific principles, more or less to the extent that these were recognized historically by jurisprudence and doctrine, as well as other international organizations, to components necessary to achieve the rule of law. However, noting that the value encompasses certain principles is peculiar especially in context of historical development of Art. 2 TEU, where rule of law (along with many of current values) were formerly termed principles. It is has not been clarified why values today encompass different principles as their components, or why the term was introduced to describe various aspects of the rule of law. Moreover, it is unclear why various values are formed of principles, when other principles identified (for example by the CJEU) as general principles of EU law, such as principle of mutual trust (cf. Ozoráková, 2022), do not form part of Art. 2 TEU, or component of any value therein. The coining of both principles with the same term is therefore ambiguous and terminologically unclear. Secondly, the principles of rule of law enumerated in the definition are unclear as regards their scope. The proclaimed principles are not exhaustively covering the entire scope of the rule of law, and even though the provided list is to serve only as a non-exhaustive demonstration, the definition contains principles that would similarly require further definitions, which is therefore currently left to the determination by the actors applying the regulation in the future. It 23 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020, Art. 2(a). 27 ADAM MÁČAJ remains to be seen how, in applying the provisions, existing jurisprudence and doctrine, which have already dealt with these principles, will be followed by the EU outside its judicial bodies. In addition, the Rule of Law Regulation definition is to “be understood having regard to the other Union values and principles enshrined in Article 2 TEU”.24 As argued above, taking into account the broad variety of principles which respect for the rule of law entails, critics may argue that reference to even more values in the Rule of Law Regulation serves to incorporate infringements of any one value into the conditionality mechanism, provided that the value is at least reflected to some extent in the rule of law and its principles. In sum, considering the scope and importance of the rule of law, in comparison to the remaining values in Art. 2 TEU, it is natural that rule of law became central to the narrative and legal standards the EU utilizes in its attempts to implement, safeguard and enforce its values, given the recent threats posed to them by the Member States. Using the rule of law as the central basis for triggering of mechanisms aimed at protecting EU values allows the institutions to target and seek compliance of Member States with multiple specific obligations that may be encompassed under the notion of the rule of law. Yet at the same time, these obligations may be effectively used in pursuit of multiple other values, which impose similar obligations. The varying notions and scope of obligations stemming from the rule of law as one of values of the EU allow utilization of this value as a unifying legal basis that can serve as means to tackle variety of violations or threats to shared values, as the rule of law and its components have been interpreted by the EU in their broader sense, encompassing human rights and democracy in their entirety, as well as many other values. The 24 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020, Art. 2(a). I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT approach has manifested itself already in cases of Hungary and Poland, where the EU has consistently grounded its action on violations of the rule of law, although they encompassed conduct of the Member States that easily can be classified simultaneously as violations of values such as democracy, or specific human rights covering judicial independence and right to an effective remedy and a fair trial before an independent and impartial tribunal (Zamecki & Glied, 2020). Concurrently to protecting the rule of law in itself, the EU can therefore at the same time utilize it to safeguard its other values, thus reinforcing the need for decisive action and effective measures to protect the rule of law, given the fact that EU has instruments at its disposal connected mostly to the rule of law, these being elevated above measures addressing e. g. democratic backsliding (Gora & de Wilde, 2022, p. 358). As a general principle of the EU law, recognized already before introduction of Art. 2 TEU, this value permeates the entire legal order of the EU and the Commission views it not only as a “prerequisite for the protection of all fundamental values listed in Article 2 TEU”, but also more broadly as “prerequisite for upholding all rights and obligations deriving from the Treaties and from international law” (European Commission, 2014, p. 4). Therefore, under the EU law and practice of the institutions, in spite of academic observations to the contrary, rule of law, human rights and democracy all become intertwined and co-dependent on each other, where any one of the values cannot be ignored without violating the other two (Carrera, Guild, & Hernanz, 2013, p. 30). It might seem that these relations between the three values blur borders between them and make any reasonable distinctions superfluous. On the other hand, the approach the EU has adopted allows it to adapt its conduct to a variety of risks posed to its values, without confining itself to excessively rigid assessments in determining which value is the one and only being threatened by a particular Member State. In sum, the rule of law as a value of the EU became not only a basis for increased activity of the EU institutions in enforcement of the EU values, and a 29 ADAM MÁČAJ method to cover threats thereto in a broad scope of situations using a unified narrative, but attacks on rule of law and backsliding in Member States also initiated adoption of legislation such as the Rule of Law Regulation, aiming to supplement (and address deficiencies in) the existing mechanisms dedicated to protecting values in the EU. Therefore, although the formal equality between all the values remains, and no formal recognition of hierarchy of Art. 2 TEU was adopted, the practice still shows that rule of law has taken place, in recent years, as the primary vehicle for securing Member States’ compliance with the shared values and to address their wrongdoings. These tendencies follow more broadly similar development on the international level, where firstly, specific norms and obligations are derived from abstract values or principles, developing their binding force and legal effects. That way, the rule of law expands in scope, becoming a multi-faceted term with various connotations, related to multiple other values, general principles of law, even the individually protected human rights that are transposed into more systematic level of enforcement under the rule of law bracket (cf. Drinóczi & BieńKacała, 2021, p. 234; Fernandez Esteban, 1999, pp. 175–176). Subsequently, depending on the breadth given to any single value, it is apparent that coherence in interpretation will eventually force the institutions to acknowledge its links to, or even co-dependence on, other values. To state the opposite would not be sustainable in situations where certain entity would violate multiple values through its conduct, but the institutions would insist on addressing only single violation and argue the remaining values, as independent from the rule of law, were untouched by the same conduct. The similar approach can be identified in the EU specifically, where the rule of law and protection of human rights, but also right to and effective remedy and judicial independence, were firstly recognized in doctrine and jurisprudence. Subsequently, they were recognized by Member States in reforms of primary law, firstly as principles and subsequently as values, with I. RULE OF LAW FRAMEWORK – CONCEPT AND HISTORICAL DEVELOPMENT specific obligations and enforcement mechanisms being provided. With the expanding scope of obligations identified under the respective values (and not developed by the EU exclusively, given the shared interest of the international community in advancing these values), the overlaps become too manifest to ignore, with the result necessitating the EU choose the value it places at the forefront of the narrative for its further attempts to cover as many threats to its legal order as possible. There is ample evidence of practice suggesting that the choice EU made set it on a path towards recognizing the rule of law as such a value. 31 ADAM MÁČAJ II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EUROPEAN UNION The subsequent text aims to clarify and critically evaluate the functioning of EU mechanisms falling under the rule of law framework of the EU institutions and their activities accordingly aimed at protecting the rule of law against threats and violations thereof. Even though the rule of law may be protected through a variety of means to a different degree aimed exclusively at the rule of law, the present chapter does not serve as an exhaustive enumeration and assessment of any and all methods that may serve a broad range of purposes and pursue a variety of goals, while being utilized occasionally to target Member States compromising the rule of law and violating their obligations. Therefore, efficacy of various judicial proceedings before the CJEU (and the national courts), initiated within the ambit of rule of law (or, more broadly, values of the EU under Art. 2 TEU), are not the topic to be discussed here, as judicial proceedings were never considered to deal exclusively with protecting rule of law. Even though, as outlined above, effective judicial protection was held to be general principle of EU law, an internationally recognized human right, as well as essential component of rule of law, the judicial protection provided by the CJEU within through proceedings within its jurisdiction serves to protect many substantive interests. Although its jurisprudence provided a significant development in understanding and utilizing the EU values, only a small fraction of the jurisprudence arose in proceedings specifically targeting rule of law violations and attempts to suppress and remedy them. Without seeking to denigrate the essential contribution of the CJEU to supporting the rule of law in the EU, the present text 33 ADAM MÁČAJ therefore focuses more closely on the core mechanisms created by the EU institutions that are: i) aimed at safeguarding the rule of law specifically, rather than measures of broad scope that may be utilized in a variety of situations; ii) not binding under the primary or secondary law, and are rather measures developed in institutional practice and; iii) focus on the dangers rule of law faces in the Member States (the internal dimension of rule of law), rather than situation in third countries. For these reasons, similarly to the proceedings before the CJEU outlined above, the topic of this chapter is also not aimed at assessing the application of the Rule of Law Regulation25 and the conditionality regime, although it is arguably one of the most impactful developments in the recent years of the rule of law crisis (Bohle, Greskovits, & Naczyk, 2023, p. 3). While the prospect of deterring Member States from violating the rule of law through withholding funding provided by the EU can be undeniably a significant incentive, the conditionality regime is considered only insofar as it was shaped by the development of institutional practice under Art. 7 TEU and similar institutional practices. 2.1. IS ARTICLE 7 OF THE TREATY ON THE EUROPEAN UNION STILL A PART OF THE RULE OF LAW FRAMEWORK? Finally, this chapter, similarly to judicial proceedings, does not seek to exhaustively assess the possibility of utilizing Art. 7 TEU to address rule of law violations in the EU. First of all, much like the judicial proceedings, the procedure (or more precisely various distinct procedures provided 25 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433/1, 22.12.2020. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU for in the various paragraphs of the provision) is not limited to protection and enforcement of the rule of law but can serve as a measure aimed to address risks (or existence) of serious (or persistent) breaches of EU law and sanction Member States for such breaches. Therefore, Art. 7 TEU does enshrine proceedings regarding violations of any of the values set forth in Art. 2 TEU and is not limited to addressing attacks on the rule of law specifically. Admittedly, the preceding text outlined the fundamental importance rule of law has in connecting various obligations under different values of the EU into a coherent narrative. It can be argued that in fact, it was the rule of law has, through the way Art. 7 has been (using doctrinal and jurisprudential developments as detailed above) utilized, especially against Poland, become the quintessential way for unifying precisely the rule of law into a value designed to comprehensively cover a multitude of violations of EU values, using the rule of law as a vehicle therefor (cf. European Commission, 2017c; or European Parliament, 2018 for a different framing of the breached values in the case of Hungary). It was precisely the reason why Art. 7 was introduced into the primary law, to address broader and more serious violations of EU values (Kochenov & Pech, 2016, pp. 1062–1064). However, the current institutional practice, responding to repetitive current threats to EU values in contemporary Europe, does not recreate Art. 7 TEU itself into a measure designed specifically for protecting the rule of law. Even if it has become central to the value-oriented rhetoric today, it does neither determine or limit Art. 7 TEU proceedings to protect the rule of law exclusively, nor does it preclude the EU institutions from reshaping their practice in the future, to utilize Art. 7 TEU in enforcing other values listed in Art. 2 TEU, should situation in the future arise where rule of law will no longer be threatened, but other values of the EU will find themselves on the chopping block. 35 ADAM MÁČAJ Moreover, the proceedings under Art. 7 TEU have been time after time assessed as insufficient and impractical, rendered inoperable by a plethora of factors, including not only prohibitive and dissuasive voting thresholds required to sanction a Member State, but also passivity of various institutions tasked with enforcing the provision, allegations of politicization and selectiveness in approaching the Member States charged with infringing Art. 2 TEU (cf. Closa, 2021; Kochenov, 2021; Kochenov & Pech, 2016; Pech & Scheppele, 2017; Pech, Wachowiec, & Mazur, 2021; Priebus, 2022b). At the same time, it is apparent that even though expanding action under Art. TEU against Member States other than Poland and Hungary had been considered, e. g. in the European Parliament (cf. Krekó, 2018), in fact, no such expansion took place, the institutions refraining from, or at least being wary of, utilizing a practice that has little prospects of meaningful results. Indeed, as late as 2017, it has been argued that Art. 7 TEU should be used with restraint, and only in most egregious cases, not only in terms of legal classification, but in situations that are especially unambiguous from a political standpoint, such as mass violations of human rights (Fekete, 2017, p. 16). The EU, albeit with noble intentions, clearly departed from such proposals. Even though endangering judicial independence, in accordance with mentioned links to right to a fair trial and effective remedy, could be considered a violation of human rights on a mass scale, the judicial “reforms”, even when conducted with malicious intent, do not bear the same level of political repercussions across all other Member States in comparison. Ironically, one of the most pertinent explanations as to why proceedings under Art. 7 TEU have led to such little success in the cases of Poland and Hungary might come from a situation where the provision had not been invoked at all (although it influenced the current wording of Art. 7). In the FPÖ crisis in Austria, the Member States imposed bilateral sanctions outside the scope of EU law on Austria, led by government II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU including the far-right FPÖ party. The situation has several implications for the deficiencies in protecting values of the EU nowadays. Firstly, it has been established, most notoriously in the “three wise men” report that there were no reasons to impose sanctions, Austria was mistreated when it did not breach any of the principles of EU law, and merely a future threat of potential violations existed, which could be solved with preventive mechanisms. It is precisely this reason why Art. 7 TEU was subsequently amended to contain the current preventive procedure under paragraph 1, enshrining situations where merely a clear risk of a serious breach of EU values is addressed (Fekete, 2017, pp. 9–10; Kochenov, 2021, pp. 135–136). The voting threshold was lowered in comparison to existing breaches, the matter was to be brought before the Council instead of the European Council, and the European Parliament was given a role in the proceedings it lacked under the procedure in paragraph 2. Reflecting upon these changes, while they were developed directly to address deficiencies in the enforcement of EU values identified during the situation in Austria, subsequent practice with Poland and Hungary, since 2017, does not bode well for assessing the capability of the EU to satisfactorily prevent violations of its values before they can occur. In spite of dropping the requirement of unanimity, over more than five years since the procedures were initiated, little development has occurred beyond discussion of the issues, the discussions lack a clear plan and timeline, are infrequent and often suspended for prolonged periods of time, and not all matters are considered equally, especially detrimental to the European Parliament’s proceedings it initiated against Hungary under Art. 7 para. 1 TEU (cf. Pech, Kochenov, & Platon, 2019; Pech et al., 2021; Priebus, 2022; Zalan, 2018). In total, it can be said that while the perceived crisis in Austria led to development and improvement of Art. 7 TEU proceedings, aimed to tackle its inability to address the situation Austria, the experience also created what has been dubbed the chilling effect in utilizing the proceedings (Kochenov, 37 ADAM MÁČAJ 2021, pp. 135–136). Precisely after creation of new mechanism within Art. 7 TEU framework, which was meant to proactively prevent violations of values before they occur, without resorting to sanctioning mechanism, the entire view of Art. 7 TEU undertook a shift where it was considered a measure to be taken in the most extreme cases, not to be adopted in enforcing the values of the EU in any case. This understanding was shaped precisely on the basis of previous experience with the situation in Austria, notwithstanding the very fact that legal regulation of the mechanism was no longer the same. Ironically, the precise time when ability of the EU to enforce its values expanded, the mechanism serving such purpose was viewed with more reservations than before. In fact, the assertion of Fekete (Fekete, 2017, p. 16), as outlined above, limiting Art. 7 TEU to most egregious violations, seems to be the prevailing view even within the Council nowadays, in spite of the fact that the proceedings against both Poland and Hungary were started within its preventive procedure under Art. 7 para. 1. The cautious approach caused by experiences with sanctions against Member States therefore deformed even the proceedings supposed to serve a preventive purpose, to the point where such proceedings cannot be satisfactorily concluded even in situations, where prevention is no longer appropriate, values of EU are already being violated and matters require sanctioning mechanisms, which however had to be found elsewhere (e. g. before the CJEU). 2.2. RULE OF LAW PROTECTION IN THE PRACTICE OF INSTITUTIONS OF THE EUROPEAN UNION In focusing on the mechanisms outlined in the three criteria above (action by the EU, specific focus on threats to rule of law, and focus on the Member States), the chapter seeks to build on the developed understanding of the rule of law framework sensu stricto, rather than the rule of law framework sensu largo, as distinguished by Nowak-Far (2021, II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU p. 306). However, rather than focusing exclusively on the New EU Framework to strengthen the Rule of Law introduced by the Commission communication (European Commission, 2014), the chapter aims to assess various main mechanisms of similar character, which satisfy the criteria listed above, namely the Rule of Law Framework of the Commission, Rule of Law Dialogue of the Council, and the Rule of Law Cycle (Rule of Law Mechanism) of the Commission. Drawing upon the conclusions concerning operation of Art. 7 TEU and its practical (in)operability against cases of either threats to or violations of rule of law in the EU, it is unsurprising that the institutions, faced with a dilemma, had to consider further developing their practice on the issue. The rule of law, as a value shared by all Member States, was under serious strain and in order to preserve not only reputation of the EU, but also to avoid hanging a fundamental value and aspect of its identity out to dry, action by the institutions was necessary. At the same time, the procedure originally conceived as a primary measure to be undertaken in similar situations, Art. 7 TEU, has proven an insufficient response, one incapable of deterring Member States from undermining the rule of law, preventing further violations, restore the harm done, or sanction the officials and governments responsible. Accordingly, the institutions, although necessarily engaging at some point with Art. 7 TEU, developed mechanisms and various frameworks aimed solely at the rule of law as well. Although these mechanisms have been subject to criticism, even from within the EU, as exceeding the competences of the EU and principle of conferral, and the EU was called upon to act in protecting the rule of law outside the scope of Art. 7 TEU only in cases where having a competence specifically conferred, the institutional practice and doctrinal views do not adhere to such a restrictive view of possibility of creating rule of law monitoring mechanisms by the EU institutions (cf. Besselink, 2017, pp. 138–140; Nowak-Far, 2021, pp. 320–321; Scheppele, 39 ADAM MÁČAJ Pech, & Kelemen, 2018). In fact, the CJEU itself recognized that “the European Union must be able to defend those values [referring specifically to the rule of law], within the limits of its powers”, as they “define the very identity of the European Union as a common legal order”.26 Results and pitfalls of various of these mechanisms are considered below. 2.3. EUROPEAN COMMISSION AND THE RULE OF LAW FRAMEWORK As described above, taking the most strict and narrow understanding, the Rule of Law Framework can be understood as encompassing solely the mechanism developed by the European Commission in its communication “A new EU Framework to strengthen the Rule of Law” (European Commission, 2014). The Rule of Law Framework sought to streamline enforcement of values of the EU in cases, which were impossible to effectively address by Art. 7 TEU, as it sought to prevent situations threatening the rule of law even before they arise to the level of “clear risk of a serious breach” of values, required to consider triggering even the modest form of procedure under Art. 7 para. 1 TEU (European Commission, 2014, pp. 5–6). It has been described as a nonbinding communication that aims to provide for clarification of general rules and their application (Nowak-Far, 2021, p. 321). The odd similarities between development of Art. 7 following the FPÖ crisis in Austria and creation of the Rule of Law Framework must be noted. When the EU lacked mechanism to prevent clear risks to its values, and its conduct was limited to addressing existing violations, amendments to the primary law itself were made to enshrine the possibility of EU to adopt the required measures. Yet at the same time, 26 Judgment of 16 February 2022, Hungary/Parliament and Council, C-156/21, EU:C:2022:97, para. 127. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU the EU became reluctant to utilize the procedure, even in its preventive form, and eventually triggered it (arguably too little, too late) in two cases where the accused Member States, at least according to subsequent judicial determinations, had in fact since long crossed the realm of threats into violating the values of the EU. With the Rule of Law Framework itself being presented as an alternative measure with lower trigger-thresholds than Art. 7 para. 1 TEU, it can be inferred that it was supposed to allow the Commission to act in a broader scope of cases where even the risk to EU values is either unclear yet, or only insufficiently serious breach of the EU values is at risk, or cumulatively, the risk is unclear and would even materialize into violations that are insufficiently serious. The Rule of Law Framework therefore shows possibility of very broad applicability on an expansive range of situations, especially when taken proactively, utilizing it to address deficiencies in Member States concerning a variety of components of the rule of law, which correlate even with the remaining values of Art. 2 TEU. It has to be comprehensively assessed whether the created mechanism, once put into practice, in fact expanded the role of the Commission in overseeing compliance with the EU values. Simultaneously, it is necessary to critically consider, on the other hand, whether the Rule of Law is in fact another cul-de-sac of promising aspirations that fail with the practical operation of the mechanism on the other hand. With these goals in mind, a closer study of the Rule of Law Framework is necessary. Created in 2014, the Rule of Law Framework was targeting systemic threats to the rule of law, not being aimed at situations of “individual breaches of fundamental rights or by a miscarriage of justice” (European Commission, 2014, p. 6). Accordingly, it was not targeted at incidents which could be solved by e. g. human rights protection mechanisms, unless they arose to the level of systemic threats. Unlike the thresholds of clarity or seriousness from Art. 7 para. 1 TEU, which 41 ADAM MÁČAJ the Rule of Law Framework has abandoned, the systemic level was adopted as a lower-level threshold to allow action by the Commission. The procedure under the Rule of Law Framework itself consisted of three parts, the assessment, the recommendation, and the follow-up, all done by the Commission (European Commission, 2014, p. 6 et seq.). In the rule of law assessment stage, after the necessary fact-finding determines the threshold of systemic threat to the rule of law is satisfied, the Commission issues a rule of law opinion to the Member State concerned, giving it an option to initiate a dialogue and respond to the concerns of the Commission. In the second stage, the Commission, should it consider necessary due to unsatisfactory steps taken by the Member State to address its concerns, it will issue a rule of law recommendation. It includes a specific concern, a time-limit given to address the situation, and can include specific conduct recommended to the Member State. In the third stage, Commission is tasked with monitoring performance of the recommendations it has addressed to the Member State, and should the situation arise, address unsatisfactory follow-up to the rule of law recommendation from the second stage through considering activation of Art. 7 TEU. Indeed, similarly to the introduction of Art. 7 para. 1 TEU, the Rule of Law Framework not only served to lower thresholds required for triggering the EU response to risks posed to the shared values. It similarly serves as development of a procedure preceding the procedure already provided for under the EU law. In the end, the Rule of Law Framework presupposes either remedying the situation, or activation of Art. 7 TEU in cases of non-compliance. Although Art. 7 para. 1 TEU does not presuppose activation of para. 2, yet again, should the Member State concerned not comply, in order to face the consequences, decision under para. 3 would need to be adopted, and that procedure presupposes decision affirming violation of EU values by the European Council under para. 2. Therefore, the Rule of Law Framework is yet II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU another step on the pyramid, which seeks certain performance, while sanctioning non-compliance only with the road down the alley of unanimity. The non-compliance with the Rule of Law Framework (or perhaps, more accurately, its outright ignorance) itself cannot itself be sanctioned in any way, being adopted by a non-binding instrument (communication), and without the Member State addressees themselves being able to challenge or contest the rule of law recommendations in any way apart from discussions with the Commission, those determined to disregard the recommendations are all the more likely to do so (Nowak-Far, 2021, p. 322). In the end, Art. 7 TEU proceedings thus would seem unavoidable against the backsliding Member States, in spite of the Rule of Law Framework being presented as aiming to avoid the need therefor, as in cases of deliberate noncompliance, the Rule of Law Framework operated mostly on the premise of compliance management, using discussions premised on voluntary compliance, the Framework was never destined to solve intentional flouting of the rule of law (Priebus, 2022a, p. 1693). The Rule of Law Framework was adopted in 2014, when discussion focused mostly on the conduct of Hungary and situation in Poland was not yet a talking point in the EU institutions. Retrospectively, it is therefore ironic that the Commission went without ever utilizing the Rule of Law Framework against Hungary, not even in its first stage, allegedly given the fact that the Commission was reluctant to challenge legislation and violations of the rule of law that were satisfying the requirements of domestic constitutional order. On the other hand, when it initiated the Rule of Law Framework for the first time (and the only time until now) against Poland, it has requested primarily to secure compliance of the government with its own constitution and constitutional law (Maurice, 2021; Pech & Scheppele, 2017, pp. 22–26). The Commission itself viewed the Rule of Law Framework favourably, in particular in establishing dialogue with Poland, fact-finding, analysis of the situation, and creating recommendations. The Commission 43 ADAM MÁČAJ presented Rule of Law Framework as an “intermediate step” (European Commission, 2019a, p. 13), departing from what has been described previously as a scheme that was supposed to cover broader range of situations than Art. 7 TEU. Since the Commission has subsequently taken the view of Rule of Law Framework as an intermediate step, it is unclear whether indeed it will utilize the framework with such broader scope, or merely confine it to being an informal predecessor to initiating Art. 7 TEU. Indeed, the Commission itself noted that the Rule of Law Framework failed to solve the deficiencies identified in Poland’s commitment to the rule of law, and that utilizing Art. 7 TEU was in the end necessary anyway (European Commission, 2019a, p. 3). From 2016 to 2017, Poland became the addressee of four rule of law recommendations overall. They covered a broad range of issues that have been addressed using a variety of different means since then, including changes in regulation and composition of the judiciary, paralysis and control over the Constitutional Tribunal, lack of implementation of existing judicial decisions by the Polish government, control over the National Council for the Judiciary, as well as lowering the retirement age of judges and introducing changes to their disciplinary regime (European Commission, 2016a, 2016b, 2017a, 2017b). With the last of the recommendations, the Commission did not even wait on the third phase of follow-up, as it issued the recommendation at the same time it made a reasoned proposal initiating Art. 7 para. 1 TEU procedure against Poland. It is now clear that the rule of law recommendations, in particular the fourth one, was in no way more beneficial than initiation of the Art. 7 TEU procedure. With the proposal alleging clear risk of a serious breach of the EU values, which was finally made after years of discussions and non-performance of existing recommendations on part of Poland, it is unclear what prospects for voluntary compliance the final recommendation had. Moreover, if the Commission made the reasoned II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU proposal, it assessed there is a clear risk of breaching the EU values by Poland – the risk wouldn’t be present, had the Commission considered it reasonable to assume that the Polish government would eliminate risk voluntarily. In such case, much like the previous rule of law recommendations, it would be sufficient for the Commission to render the final one separately from the reasoned proposal. The real reason for making the fourth rule of law recommendation was in fact possibly the desire of the Commission to provide opportunity for a quid pro quo game with Poland, rather than simply relying on voluntary implementation of its recommendations by a rogue Member State. The final recommendation includes the undertaking of the Commission to reconsider the reasoned proposal made, should the Polish government in fact choose to implement the recommendation (European Commission, 2017b, para. 50). The Rule of Law Framework allowed the Commission to introduce and elaborate on a coherent set of rule of law components, incorporating views of other international organizations and their bodies, such as Venice Commission, into practice within the application of the EU law. On the other hand, the practical impact of the Framework led only to a situation where concerns of the Commission were left unresolved and inevitable initiation of Art. 7 TEU proceedings was merely postponed to a time where most of the contentious changes by the accused Member States were not only impossible to prevent, but also difficult to remedy (Beqiraj & Moxham, 2022, p. 141; Kochenov, 2021, pp. 139–140). In a hindsight, it may seem easy to identify the reason for such inability of the Rule of Law Framework to bring reasonable power to rule of law protection. It is now hardly imaginable how the attempts of EU institutions to engage in dialogue could be successful in persuading the counterparty to adopt a direction it is directly opposed to, was never inclined to follow, and in principle had no interest in dialogue as such. 45 ADAM MÁČAJ The assumption of dialogue and voluntary compliance as a basis for ensuring compliance with the rule of law, while potentially successful in other cases, was clearly insufficient in the only case Rule of Law Framework was actually put into action. The reason for this is primarily the very design of the dialogue between the Commission and the Member States (Pech & Scheppele, 2017, p. 27). In the end, governments like the one in Poland will have no incentive to observe rule of law recommendations, or even engage in dialogue, where they are aware of the consequences of their disobedience. In situation where these result merely in the very same resort to launching Art. 7 TEU proceedings, there is little need for the rogue Member States backsliding on the rule of law and democracy to pay any more than rudimentary attention to what the Commission does under the Rule of Law Framework, which is itself premised on the values of liberal democracy, such as good faith dialogue. The faith placed into it by the Commission is therefore misplaced, as it is essentially unusable to current rule of law crisis the EU faces, even though the earliest stages of the very same crisis in fact prompted its creation (Pech & Scheppele, 2017, p. 27). The Rule of Law Framework in fact serves as yet another stage preceding Art. 7 TEU proceedings, hindering the Commission in resorting thereto, resulting in belated adoption of more strict responses, even though the preventive part of those proceedings is already a more lenient form than the sanctions mechanism provided in Art. 7 paras. 2 and 3 TEU. Moreover, knowing the low prospects of actually suffering any real harm to their interests through sanctions provided for therein, the Member States charged with violating the EU values are not likely to be persuaded to follow rule of law recommendations even in cases when these are made simultaneously to Art. 7 TEU proceedings and with the promise of terminating them if recommendations are followed, resulting in improbability of the quid pro quo approach bearing fruit. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU 2.4. ANNUAL RULE OF LAW DIALOGUE AND THE COUNCIL OF THE EUROPEAN UNION Art. 7 para. 1 TEU, as described above, is no prerequisite to proceeding with sanctioning Member States for violating the values of the EU. At the same time, while the Council votes on whether there is a clear risk to EU values under the said provision, it is the European Council which then determines whether the breach of EU values actually occurred under Art. 7 para. 2 TEU. While the Council afterwards again takes the mantle in determining the precise sanctions to be imposed under para. 3, in the stage of determining breaches of EU values, while the European Council cannot be bypassed, the Council, in principle, could be. If the institutions are of the opinion that Member State has gone straight from threatening the EU values to breaching them in a sufficiently serious manner, potentially before any Art. 7 proceedings were ever started, the Commission could propose that the European Council could directly determine that values of the EU were breached. In fact, it has been argued that the Rule of Law Framework of the European Commission has done exactly the opposite in the case of Poland. While the discussions with Polish government took place, it had been given enough time to not only proceed, but push harder on the changes that were the initial cause for concern. Additionally, the Commission’s powers within Art. 7 TEU and the Rule of Law Framework preceding it were clearly unable to change the factual circumstances, once the Polish government had gone forward with the changes (Pech & Scheppele, 2017, pp. 27–28). It could therefore be argued that in fact that moving forward directly with Art. 7 para. 2 TEU proceedings, especially given the previous experience with the provision applied against Poland and Hungary, could prove to be more effective, especially given the fact that the Council would make way for the European Council to make the more consequential decision in particularly serious cases. 47 ADAM MÁČAJ Yet again, the Rule of Law Framework, although not necessarily precluding such possibility, makes it impractical in practice, and potentially makes the EU politically vulnerable. Had the regime of Art. 7 and its first two paragraphs been the only proceeding available to address violations of the rule of law and other EU values, it could be straightforward to present the provisions as alternatives – either the Member State creates a risk of violating EU values, or it is violating them, and depending on the specific facts and legal qualifications, the proceedings will be initiated under the proper paragraph, either before the Council to discuss the implications of existing risks, or the European Council, to determine whether and which breaches have occurred. The necessary fact-finding, discussions and seeking of a room for improvement and corrections to the Member State’s conduct could have been incorporated into institutional practice as part of the proceedings under Art. 7 TEU itself, much like the Commission introduced them in the separate Rule of Law Framework. However, the Commission clung on to its mechanism, as in the case of Poland, for a time so long that bad faith of the Polish government and their resolve to destroy judicial independence were clearly manifest. Even then, it proceeded only with the reasoned proposal under Art. 7 para. 1 TEU. Therefore, it can now easily be argued (in the political sphere) that in fact, there should be a hierarchy to the proceedings, with the Rule of Law Framework a necessary first step, the proceedings under Art. 7 para. 1 TEU being the second one, even though the risks have in fact long since outgrown potential fears into full-on violations of Art. 2 TEU. The argument is not based on the wording of Art. 7 TEU, it has not been tested in practice yet, and nothing in the primary law or practice precludes the institutions from proceeding with the strictest form of proceedings. Nevertheless, after such approach has been undertaken by the Commission against Poland, in a set of factual circumstances of such severity, it is not hard to foresee a third II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU illiberalism-inspired Member State in the future to similarly accuse the EU of politicizing the issue and being biased, treating the new suspect worse off than Poland. It has to be pointed out that for now, only the practice of the Commission indicates respect for such hierarchy and progressive initiation of more serious procedures. While Hungary, similarly to Poland, faces only Art. 7 para. 1 TEU proceedings related to events so old that their effects can easily be seen as existing violations of EU values in fact, the reasoned proposal against Hungary was made by the European Parliament (2018). However, the Parliament is the only entity that may institute Art. 7 para. 1 TEU proceedings, without being given the opportunity to do so under para. 2.27 For that reason, even should the Parliament consider serious breaches of EU values are already occurring, all it has the competence to do is to initiate in fact proceedings to determine merely whether the values are at risk, and then rely on the Commission or Member States to potentially carry the matter over into Art. 7 para. 2 TEU. In practice, the approach of the Commission is, of all the institutions, accordingly essential when considering how Art. 7 TEU proceedings are triggered, even though throughout the proceedings themselves, the Commission loses its traditional enforcement powers and the core role belongs to Council, or the European Council (Kochenov, 2021, pp. 138–139). Nevertheless, while the European Council and requirement of unanimity therein is the most prohibitive aspect of sanctioning Member States violating values of the EU, it is the Council that has remained seized of the matters in Poland and Hungary thus far, and its approach to rule of law protection is therefore of particular importance. It is noteworthy that already in 2014, when the Commission’s Rule of Law Framework was adopted, the Council, especially its Legal Service, 27 That option is given to the Commission and one third of Member States. 49 ADAM MÁČAJ was doubtful of the scheme. However, it was not the concern about its efficacy, rather the competences of the EU. It considered nexus between EU values and its conferred competences to be fundamental and in the absence of the specific competence, it viewed Art. 7 TEU as the only forum to address issues related to the rule of law (an approach that was later not adopted by the CJEU in the ASJP judgment). It opposed the idea that the Commission had any legal basis empowering it with the creation of a new supervision mechanism (Besselink, 2017, pp. 136–137; Council of the European Union, 2014b; Oliver & Stefanelli, 2016, pp. 1076–1078). It seems in fact that the Council Legal Service was not concerned with cooperating on creation of an efficient way to protect EU values, rather to make sure it had as much involvement in the mechanism as possible, even before the Commission ever activated its Rule of Law Framework, as it called for a peer review and dialogue of Member States in the Council itself (Council of the European Union, 2014b, p. 7). Indeed, the Council did provide for such a mechanism (Rule of Law Dialogue), even though its reservations about the Commission’s competences did not prevent the Rule of Law Framework from being deployed and ironically, it was the Council which later on called upon the Commission to engage in more dialogue with Poland, precisely under the Rule of Law Framework, at a time when there were not so many concerns as to the competences themselves, rather than Council’s concerns about the real possibility the Commission might start Art. 7 TEU proceedings (Pech & Scheppele, 2017, p. 19). It is also the first time the Council in fact discussed attacks on the rule of law in Poland and while Member States offered criticism, the Council did not provide more support for the Commission in its concerns against Poland (Pech & Scheppele, 2017, p. 31). The Council’s own mechanism as such was adopted meanwhile, as a dialogue in which it emphasized the objectivity, non-discrimination and II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU equal treatment of all Member States, non-partisanship and evidencebased approach, respect for the principle of conferral, national identities of the Member States, self-government inclusion into the dialogue, national security, principle of sincere cooperation, and a plethora of other interests (Council of the European Union, 2014c, p. 21). The notable bug (or perhaps a feature) of establishing the Rule of Law Dialogue is the Council’s disinterest to deal with the rule of law itself. The Council did not set out to clarify what topics does it view as covered under the rule of law, or to clarify whether it adopts the thicker or thinner definition of the rule of law it aims to discuss within the Dialogue. It also does not clarify what issues in the EU does it consider noteworthy of discussing, or what specific dangers does the rule of law face. Finally, even the list of interests the Council aims to secure while establishing the Rule of Law Dialogue causes confusion. The Council emphasizes that the abovementioned principles shaping the Dialogue are to be followed, but in practice does not outline what is their purpose. It can be argued that (at least some of) those principles, such as equality and non-discrimination, respect for national identity, or principle of sincere cooperation, are in themselves either values of Art. 2 TEU, components of the rule of law as an overarching value, or otherwise recognized general principles of the EU law. In adhering to these various interests, the Council could therefore present its structure of the Rule of Law Dialogue as an attempt to ensure that the EU itself respects the rule of law in assessing Member States’ compliance therewith, without overstepping and damaging its legitimacy. On the other hand, the Council listed these interests within the context to precisely assure the Member States, including those suspected of flouting the rule of law, as to the objectivity of the Dialogue, while it simultaneously omitted to detail objectives the Dialogue has and the problems it wants to tackle, while it openly said it views the Commission’s Rule of Law Framework as unlawful. In such situation, second interpretation arises, one in which all the other factors serve as a tool for the Council to politicize the 51 ADAM MÁČAJ Dialogue and alleviate the concerns of Member States facing allegations. Yet another notable discrepancy in the Council’s approach is its endorsement of non-legislative initiatives in cases of human rights protection, which it endorses (Council of the European Union, 2014a), when it has adopted the restrictive view to the contrary towards the Commission’s Rule of Law Framework. As argued above, human rights and the rule of law as values of the EU are crucially interconnected and interdependent. By questioning and undermining the Commission’s non-legislative measures aimed at protecting the latter, the Council is at the same time putting strain on the former, which it in fact wants to support even with measures outside of exercising legislative powers. In order to act more coherently, the Council should more firmly acknowledge these links between the rule of law and human rights and recognize that non-legislative initiatives and measures are mutually reinforcing and beneficial to achieving sufficient level of respect for both of these values. In sum, when the Council therefore had reservations about the Commission proceeding with the Rule of Law Framework itself, it used the narrative of competences to caution against its implementation. When the Framework went ahead in the case of Poland, the Council urged to at least (ab)use it with a view to delay Art. 7 TEU proceedings in a way that would leave flagrant breaches of the rule of law stuck in a Framework created to address allegations of far lower severity. Finally, even before it had become seized of actual proceedings under Art. 7 para. 1 TEU, it has created a Rule of Law Dialogue, under a narrative so littered with context assuring Member States that it cannot be surprising when the Member States alleged to violate Art. 2 TEU took the Council proceedings as a relatively low risk endeavour they might be willing to take. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU The way Rule of Law Dialogue has been conducted itself indeed exposes the position of Member States in the Council as willing to compromise the rule of law mechanisms EU could utilize by engaging in a “tragically ineffective […] self-congratulation” (Pech & Scheppele, 2017, p. 29). The Member States in the Council under the Rule of Law Dialogue are, in essence, not confronted with the allegations laid out against them, and the Dialogue offers no monitoring and oversight over the Member State reporting. Rather than supporting the Commission, in focusing on the Rule of Law Dialogue, the Council abandoned the political weight behind the Framework in lieu of discussion that does not offer tangible recommendations, obligation or monitoring (Oliver & Stefanelli, 2016, p. 1079; Pech & Scheppele, 2017, p. 29). Transparency of the Rule of Law Dialogue and the specific topics or countries being discussed, attitudes of Council members, as well as the specific points of interest or contention, are barely accessible and the available information about the Dialogue, apart from its establishment, is scarce. The Dialogue was re-evaluated in 2016, where available information mentions only possibility for Member States to share information about best practices and challenges, and focus on several issues, such as anti-Semitic and anti-Muslim hatred, rule of law in the age of digitalisation, or integration of migrants. Carefully avoided is anything to indicate Council took interest in judicial independence or crisis of the rule of law. The Council Presidency summarized the input from Member States as discussing more frequent and result-oriented debates, more systematic preparations of the Dialogue, more precise timing of topic selection for discussions, and the need for interactive dialogue and real exchanges between Member States, as well as focus on specific topics and challenges (Council of the European Union, 2016). For the second time, the Dialogue was re-evaluated in 2019, and the Council, apart from repeating the core principles it bases as fundamental in conducting the Dialogue, expressed that the mechanism has proved to be useful, although it is not clear why, and 53 ADAM MÁČAJ that to reinforce the Dialogue, it should be “stronger, more resultoriented and better structured”, and should undertake yearly “stocktaking exercise concerning the state of play and key developments” (Council of the European Union, 2019). The Council has not provided information concerning any specific conclusions or recommendations, and no information as to the issues discussed was provided. The Dialogue is to be re-evaluated by the end of 2023 and at the time of writing, while the re-evaluation had not yet been made, the Spanish Presidency of the Council praised the “yearly stocktaking” as enhancing the preventive and constructive nature of the Dialogue, welcomed the exchanges between the Member States, and pointed out that only since 2020, the Dialogue led to three horizontal discussions on the general rule of law developments, as well as six country-specific discussions that covered situation in all Member States (Council of the European Union, 2023, p. 3). The content of the existing discussions is nevertheless not provided, but it seems that apart from the General Affairs Council, more thematic topics, such as barriers in access to justice, are now being discussed in the Justice and Home Affairs Council as well (Reynders, 2023). In total, in almost 9 years since its conception, the Rule of Law Dialogue between 2014 and 2019, the Dialogue was not even designed in a way to appropriately focus on yearly developments and broad scope covering all Member States. After five years, the Council managed to introduce Dialogue which manages to cover developments in all Member States, as well as bird’s eye view on rule of law situation in the EU. Yet no concerns, discussions, or recommendations of the Council may be analysed, and the dialogues take place mostly behind closed doors. One can only wonder what the practice of the Council in the Rule of Law Dialogue, its underdevelopment of the entire procedure and token discussions in the early years, as well as no real demands made to specific Member States even since the 2016 adjustments to the procedure, signals to governments determined to flout or dismantle the II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU shared values in the EU. Actions by Poland or Hungary since then could even well be construed as their understanding being that given the overreliance on political palatability of the Council’s action within the Dialogue, states charged with threatening the EU values under Art. 7 para. 1 TEU will face a similarly benevolent practice, even after the Commission’s reliance on the Rule of Law Framework ends with initiating Art. 7 proceedings. 2.5. THE RULE OF LAW MECHANISM AND THE RULE OF LAW REPORT – ENGAGING WITH THE MEMBER STATES EN MASSE Thus far, the Rule of Law Framework presented a mechanism aiming to allow the Commission to address specific Member States that run the risk of violating the rule of law. On the other hand, the Rule of Law Dialogue arose as the Council’s response to the doubtful assertions that the Commission did not have competence to protect the EU values through means not conferred on it within its competences. The Rule of Law Dialogue, in spite of this aim (and apart from its inefficacy), focused rather on discussion of issues more broad and common to the EU. Whether it has been the attempt to shield criticized Member States by side-lining their specific conduct and put all countries on an equal footing or not, the Council’s focus on broader topics is not exclusive. The European Parliament has recommended that a mechanism dubbed the Union Pact for democracy, the rule of law and fundamental rights (EU DRF) should be adopted already in 2016, in the form of an interinstitutional agreement, to integrate existing mechanisms, regular monitoring Member States, civil society, in order to prevent and correct violations of EU values, contemplating even creation of an independent panel of experts, sanction mechanism and future changes to primary law (European Parliament, 2016). The Commission subsequently endorsed certain ancillary recommendations, such as dialogue of the Parliament with national legislatures, improvements to publicity of data 55 ADAM MÁČAJ and documents, or awareness-raising. However, it viewed with reservations the core proposal related to the existing rule of law mechanisms namely their consolidation into the EU DRF. Doubts concerned mostly questioning the need for the mechanism, duplication of instruments (although at that time, it already took place anyway, with the establishment of the Rule of Law Dialogue), and need for the expert panel. The Commission viewed its Rule of Law Framework as sufficient, even considering its application in the case of Poland.28 In spite of the said reservations, the Commission eventually indeed went ahead with establishing the Rule of Law Cycle, later renamed the Rule of Law Mechanism, with the objective of monitoring the rule of law in all Member States more broadly and regularly. However, it had not reflected on all demands of the Parliament, e. g. without creating a panel of experts. At the same time, the Rule of Law Mechanism was created by a communication from the Commission, similarly to the Rule of Law Framework, in spite of the Parliament calling for an interinstitutional agreement. While the Parliament itself has modified its proposal since creation of the Rule of Law Mechanism (European Parliament, 2020) and condemned reluctance of the Commission and the Council (European Parliament, 2022), the remaining institutions have not yet transformed the Mechanism into an interinstitutional agreement and it seems the initiative is not receiving attention currently. The Rule of Law Mechanism focuses on all components of the rule of law, thereby broadening the judicial independence that was the primary focus of its Rule of Law Framework used against Poland. The Commission recognized a variety of actions needed to protect the rule of law in the EU even before the situation in some Member State 28 The Commission adopted its response several months sooner than initiating Art. 7 TEU procedure against Poland. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU deteriorates, advancing the rule of law promotion as a bundle of actions designed to support the respect for rule of law through structural building of Member State civil societies (European Commission, 2019b). Secondly, in the prevention aspect of the rule of law, the Commission created the Rule of Law Mechanism, the Commission gathers information, in collaboration with other EU bodies, international actors, Member States and civil society, and prepares annual Rule of Law Reports, summarizing the essential developments in the Member States and the EU, in cooperation with the EU Justice Scoreboard (European Commission, 2019b, pp. 9–11). Only afterwards, the Commission plans to resort to enforcement mechanisms, such as infringement proceedings or Rule of Law Framework and Art. 7 TEU proceedings. The Rule of Law Reports were published by the Commission since 2020 and focused on a broad range of issues, far exceeding the points of contention between the EU and Poland or Hungary alone. Apart from judicial independence, these cover also pandemic impact on the rule of law, fight against corruption, media freedom, access to information, quality of legislative procedures (European Commission, 2020, 2021a, 2022aa, 2023ab), and were gradually expanded to include new topics, such as lobbying and asset disclosures (European Commission, 2021a, 2022aa, 2023ab), or implementation of judgments of the ECtHR, civil society functioning and spyware use (European Commission, 2023ab). In continuous expanding of the topics included, the particularly broad view of the rule of law in the EU is yet again apparent, encompassing many topics that intersect with other values of the EU and fall outside the traditional narrow understanding of the rule of law. Apart from the global Rule of Law Report, all 27 Member States are reported on in separate country chapters and starting in the Rule of Law Report 2022, the Commission started offering specific 57 ADAM MÁČAJ recommendations to all Member States, introducing simplified country chapters abstracts in 2023 as well (European Commission, 2023aa). The Rule of Law Report has already been considered relevant in other settings as well, such as assessing rule of law for the purpose of EU Recovery Fund resources (Monciunskaite, 2022, p. 54). However, it has been also noted that reports all too often provide a description of facts in isolation, without proper context and its analysis to assess emerging threats (Monciunskaite, 2022, p. 65). In consolidating the existing EU activities into the promotion, prevention, and enforcement buckets, as well as supplementing existing practice with new approaches, an essential question arises in comparison to findings concerning the Rule of Law Framework creation in 2014 presented above. In creating enforcement as a third objective of the Rule of Law Mechanism and recognizing promotion and prevention as the first two categories, has the Commission yet again created a regime where confrontation aims to be deferred for as long as possible? After all, the Rule of Law Framework itself is suddenly considered within the third category of enforcement, even though it has been previously created as a preventive mechanism. The most plausible explanation for this terminological shift is that the Commission itself, having experience with its own Framework previously, came to recognize it for what it is – a procedure to be taken in response to existing and wilful violations, one that will have to lead to activation of Art. 7 TEU in cases of non-compliance, not a measure that would in itself deter further violations.29 In doing so, will the Commission be reluctant to utilize the enforcement measures in future cases where these are warranted? 29 A parallel could be drawn here with the infringement procedure under Art. 258 TFEU that the Commission conducts prior to bringing the matter before the CJEU. II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU Considering the content of the remaining two buckets of promotion and prevention, in comparison to creation of the Rule of Law Framework in 2014, it is manifest that the Rule of Law Mechanism consists of measures much better tailored to preventing situations where enforcement mechanisms will have to be used. The first two parts of the Mechanism, unlike the Rule of Law Framework, are not concerned with individual Member States, whose governments are suspected of wilfully undermining the rule of law, or other values of the EU along with it. On the contrary, these presuppose a procedure to be followed by all the Member States, with the participation of the EU, civil society, and private individuals. Unlike the Framework, it is not conducted with the purpose of ending violations conducted by specific actors or enforce the EU values against a particular Member State. On the other hand, the promotion and prevention rely on annual monitoring of situation in all the Member States, with broad scope and reporting on rule of law situation in all Member States, following with a set of recommendations by the Commission, addressed to no government, rather providing all Member States with guidance and assuming voluntary bona fide fulfilment of the proposed improvements. In doing so, the Commission utilizes management measures in lieu of enforcement, but in a sphere where such measures can be brought to fruition – in all Member States, which are presumably interested in respecting the rule of law (being a shared value) and are capable of correcting their mishaps with proper guidance (cf. Priebus, 2022a, pp. 1687–1688). By demanding all the EU Member States to be subject to the same procedure of reporting and recommendations under the Mechanism, the EU can properly monitor the situation on the ground and stifle accusations of selectiveness and politicization (cf. Monciunskaite, 2022, p. 55). The Commission in fact shifts the burden of proof on Member States to prove that they are willing to voluntarily comply and fulfil the rule of law – provided they participate in the dialogue and follow the recommendations properly. It is no longer the job of the Commission to 59 ADAM MÁČAJ pursue dialogue with particular Member States – all are expected to do so. Once some of them go rogue and fail to engage with the EU, or to implement the recommendations, the Commission still has the third part of the Mechanism at its disposal – including the mechanisms wellknown from the situation in Poland and Hungary. However, it can now properly select and prioritize rule of law cases to push forward into the enforcement stage, identifying them through the Rule of Law Report and recommendation. Even though the Commission was in no way precluded from doing so before, the consolidation of existing procedures provides transparency and a better understanding of priorities the EU seeks from its Member States, as well as understanding why certain Member States face enforcement measures and others do not. Naturally, the Rule of Law Mechanism must nevertheless be approached cautiously. The Commission ambitiously proposes a new approach in protecting the rule of law, while not outflinging its views on reasons for earlier failures of the EU to address collapse of the rule of law in Poland and Hungary, and why earlier mechanisms, even outside the primary law, were insufficient. Although literature points out the reasons and they are well-known, the Commission does not seem keen to acknowledge them (Kochenov, 2019, pp. 426–427). The newly recognized first two buckets of promotion and prevention through the Rule of Law Mechanism and reports are still critically incapable of addressing the already existing crisis in two Member States, which are not grounded in institutional deficiencies, lacking capacity, or doctrinal disagreements about the nature of the EU law, but a deliberate attack on the foundations of European integration (Kochenov, 2019, pp. 427– 430; Priebus, 2022a, p. 1685). The recommendation Commission makes to the Member States may become ambiguous, lack standards, and become in themselves politicized rhetorical trainings, as has already been observed with the Commission overseeing pre-accession criteria (De Ridder & Kochenov, 2011; Kochenov, 2019). The already existing II. FRAMEWORK FOR PROTECTING THE RULE OF LAW IN THE EU Rule of Law Reports and recommendations they contain have been instantly criticized of sidestepping and turning a blind eye to precisely those situations they have been created to remedy, namely new and less serious threats to rule of law arising in Member States not yet openly dismantling it. With the Commission repeating its old mistakes in delaying deployment of measures it yet again has at its disposal, it is not clear whether lessons from Poland and Hungary have been adequately learned (cf. Monciunskaite, 2022, pp. 63–64). Most crucially, however, when it comes to enforcement, there is little new that the Commission envisaged under the Rule of Law Mechanism. Aside the discussion of utilizing conditionality, which has been left for the development in the years to come, the Mechanism is still left with the same severe flaw when it comes to enforcement – the problem of convicting Member State of violating EU values remains exceptionally difficult, as is the case with Art. 7 TEU and even if successful, the prolonged time it takes the EU to resort to enforcement mechanisms and successfully utilize them makes it all the more difficult to get Member States back on track and restore respect for the rule of law in countries whose governments had acted to wilfully dismantle the rule of law with all deliberate speed. 61 ADAM MÁČAJ III. RULE OF LAW ENFORCEMENT: LEGAL AND FINANCIAL IMPLICATIONS Insufficient performance of political instruments, as regards the protection and enforcement of the rule of law, was analysed in chapter II.. Therefore, this chapter is focused on legal and financial instruments. The legal toolkit has not recently been substantially modernised and consists of a well-known infringement procedure (Articles 258, 260 TFEU) and interim measures (Article 279 TFEU). Financial tools, on the other hand, present an upgraded approach of the EU to conditionalities. Recently, three new instruments were introduced establishing various rule-of-law conditionalities regulating withdrawal from EU budget. In this chapter, we will analyse the process, enforcement, case law, implications, and lessons learnt. 3.1. LEGAL INSTRUMENTS The infringement proceedings can be activated only when a Member State has failed to fulfil a specific obligation under treaties. This can cause a practical problem, as TEU refers to the rule of law only as to its fundamental value on which it is founded and there is neither in TEU nor in TFEU any specific provision which binds Member State to comply with rule of law. (Kováčiková, 2023, p. 80). Therefore, the possible violation of the Member State could only be identified indirectly, through the interpretation of the CJEU. To illustrate this, we can refer, for example, to the case Minister for Justice and Equality (Deficiencies in the system of justice) where the CJEU through the linkage between Article 19 TEU and Article 2 TEU established an obligation for the Member State to ensure the full application of EU law and judicial protection of the rights of individuals emanating from EU law, which requires the compliance with the obligation to ensure, that courts of that Member State meet the criteria of effective judicial protection. 63 HANA KOVÁČIKOVÁ However, Bard and Sledzinska-Simon pointed out that governments of backsliding states usually present a problematic measure as a part of national constitutional identity, and that rule of law violations are characterised by the absolute lack of effective legal remedies to tackle the issue at the national level (Bard & Sledzinska-Simon, 2019, p. 4). Therefore, it is not easy to tackle such violations, as they could present a major legal disagreement or a difficult legal issue to which the solution is not obvious. Such cases require a case-by-case approach and a thorough analysis, as the case law regarding the national identity argument has not yet been sufficiently developed. Nevertheless, even when the Commission submits the case to the CJEU, it can take years to reach the decision and [voluntary] compliance of the Member State with the judgment. During this time, an existing legal issue could develop into a serious breach of the rule of law. To ensure fast intervention, with the aim to ease the possible threat of a clear risk of a serious breach by a Member State of the values referred to in Article 2 (rule of law included), the CJEU may in any case before it prescribe any necessary interim measure (Article 279 TFEU). Regarding the way and extent of the use of legal tools, Poland can be used as a 'trendsetter'. Due to the perpetuating situation of backsliding the rules in Poland, the CJEU developed a significant rule - a right to impose periodic penalty payments even when the Member State fails to comply with the interim measure under Article 279 TFEU. , To this regard, an analysis of the infringement case Commission v Poland (Indépendance et vie prevée des juges), C-204/21, will be done to verify the efficacy of this tool. In 2020, the Commission initiated the infringement procedure No. INFR(2020)2182 against Poland due to the reform on judicial law, under which Polish courts were prevented from directly applying certain provisions of EU law protecting the judicial independence and from putting references for preliminary rulings on such questions to the III. RULE OF LAW ENFORCEMENT: LEGAL AND FINANCIAL IMPLICATIONS CJEU. Moreover, Polish Disciplinary Chamber of Supreme Court, the independence of which was doubted, was entitled to take decisions directly impacting judges (e.g. lifting immunity of judges to enable criminal proceedings against them, arrest them or place them in provisional detention, reduction of salary), and the way they execute their function (it has chilling effect for judges and can affect their own independence). Finally, the new law imposed a disproportionate obligation on judges to provide information for publication about their specific non-professional activities. (European Commission, 2021a). As Poland did not sufficiently respond neither to a letter of normal notice of 29 April 2020 and a reasoned opinion of 30 October 2020, nor to the supplementary letter of formal notice of 3 December 2020 or supplementary reasoned opinion of 27 January 2021, the Commission brought an action to the CJEU claiming that Poland violated the obligations under the second subparagraph of Article 19(1) TEU, Articles 7, 8, and 47 of the Charter of Fundamental Rights of the EU and Articles 6(1), 6(3), and 9(1) of the GDPR. At the same time, the Commission filed an application for interim measures, seeking to suspend problematic applicable law that threatens the independence of Polish judges. On 14 July 2021, the CJEU issued a respective Order I and ordered to Poland to communicate to the Commission all the measures adopted in order to comply in full with this order within the period of one month. By Order II, the Vice-President of the Court reminded the primacy of EU law when decided, that even if a national constitutional court declares that CJEU´s interim measures (aimed at suspension of national provisions undermining the correct application of EU law) are contrary to the constitutional order of the Member State concerned, this in no way alters the assessment that national provision on the organisation of justice in the Member State may be subject to review in light of the second subparagraph of Article 19 TEU in the context of an obligation and respective interim measures, as well. Therefore, the interim 65 HANA KOVÁČIKOVÁ measures ordered suspending the Polish national law were left effective, as Poland did not prove the adoption of sufficient measures to comply with Order I. Subsequently, the Vice-President of the CJEU made an Order III by which ordered Poland to pay the Commission a periodic daily penalty payment of 1 million EUR until it complies with the obligations arising from Order I or, if it fails to do so, until the date of delivery of the judgment closing the proceeding in this case (204/21). The daily penalty payment was then reduced to 500 000 EUR per day by the Order IV as the Poland partially managed to comply with the interim measure of Order I. Finally, a final judgment was adopted and the CJEU´s Grand Chamber declared that Poland failed to meet its obligations under the second subparagraph of Article 19(1) TEU, Articles 7, 8, and 47 of the Charter of Fundamental Rights of the EU and Articles 6(1), 6(3), and 9(1) of the GDPR. At the time of the final judgment, the violation of EU law in Poland had lasted more than 3,5 years. Neither financial penalties nor the decision naming Poland, in fact, the State, infringing the rule of law principles have had the power to bring Poland back from the path of backsliding from the rule of law. And one particularly bizarre consequence has also appeared. As the Polish duty to pay daily penalties could be terminated by complying with Order I or by adopting a final judgement, in the end, Poland paradoxically substantially improved its situation, as its obligation to pay daily penalties was cancelled, despite it not fulfilling its obligation to comply with applicable EU law. At the end of 2023, Poland still has not fulfilled the obligations arising from the final judgment. Surprisingly, there is no case under Article 260 TFEU pending III. RULE OF LAW ENFORCEMENT: LEGAL AND FINANCIAL IMPLICATIONS before the CJEU to ensure the enforcement of the final judgment, as the Commission has remained inactive in this regard. However, besides the disturbing thoughts on whether the Commission itself does not help to weaken the enforcement, it seems that neither infringement procedure nor interim measures used has provided a sufficient instrument when dealing with a Member State strongly despising by its obligation to follow the rules. As regards the weak deterrent effect of imposed daily financial penalties, this could be caused by the relatively small effect on the Polish budget. Order III affects Poland in 2021 with the sum of 65 million euros (0,07% of the 2021 Polish budget), in 2022 with the sum 365 million euros (0,35% of the 2022 Polish budget) and with the sum of 133,5 million euros (0,11% of the 2023 Polish budget). To compare, periodic daily penalty payments imposable to undertakings when infringing the antitrust rules can touch the ceiling of the 5% of the average daily turnover in the preceding business year. Higher rates also in infringement cases could, therefore, serve as a better motivation for infringing Member State to comply with applicable decisions. 3.2. FINANCIAL INSTRUMENTS Within 2021-2027 Multiannual Financial Framework and the Next Generation EU programme, three new financial instruments: the Conditionality Regulation, ESIF Common Provision Regulation and Resilience and Recovery Facility. All three instruments were introduced as the reaction to increasing backsliding from rule of law in particular Member States, as political and legal tools proved to be insufficient to address the situation. Despite these instruments are independent from the former ones, nothing prevents all tools (political, legal and financial) to be implemented simultaneously. 67 HANA KOVÁČIKOVÁ In chapter above, we discussed the questionable efficacy of financial payments enforcing the compliance with the rule of law. In this chapter, we will analyse, whether conditionality system contained in this financial framework, works better. The Commission submitted the proposal of Conditionality Regulation on 2 May 2018. As the Commission explained, respect for the fundamental values also includes EU budget, where respect for fundamental values is an essential precondition for sound financial management and effective EU funding. Moreover, only effective respect for the rule of law is a prerequisite for confidence that EU spending in Member States is sufficiently protected. However, the lengthy and complicated process of its adoption showed, that necessary trust on sound financial management of EU sources, would not be easy to be gain. The Conditionality Regulation is not the first-choice tool to be used, bud can be activated only after attesting, that other, more effective tools could not be used. At the same time, it the Commission must establish that breaches of the principle of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget, or the protection of the financial interests of the Union in a sufficiently direct way. Despite financial implications such as suspension of payments, prohibition on entering new legal commitments, early repayment of loans from EU budget, etc., this tool did not address the weaknesses identified in political tools. Firstly, initiation of the procedure depends solely on the Commission´s consideration, which disposes a great discretion in this regard (where the Commission finds that it has reasonable grounds (…) unless it considers that other procedures (…). We already have witnessed, that the Commission is not keen to swiftly use its “full armoury” to guard the Treaties (cf. Kováčiková, 2023), (cf. Kochenov, 2021), (cf. Staudinger, 2022). However, even if the III. RULE OF LAW ENFORCEMENT: LEGAL AND FINANCIAL IMPLICATIONS Commission decides to act, its effort can be negated by the Council, which can amend the Commission´s body. The case of Hungary serves as a proof, that such considerations have some relevant basis. The Hungarian disrespect to EU values and principles became at the point where it is almost unbearable. Despite activation of the Article 7(1) by the Parliament in 2018 a relevant decision was not adopted yet. Neither any decision of the CJEU in regard the violation of the rule of law is not known to be issued. At least, the Commission in its Rule of Law Reports has repeatedly stated that Hungary raised concerns under the Conditionality Regulation (European Commission, 2022, p. 2), (European Commission, 2023, p. 2). To show some action, on 24 November 2021, the Commission by sending the request for information to Hungary pursuant to Article 6(4), started a conditionality procedure. On 27 April 2022 the Commission suggested to adopt appropriate measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary. The Council then decided that there are fulfilled conditions or the adoption of appropriate measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary and suspended 55% of the budgetary commitments under Environmental and Energy Efficiency Operational Programme Plus, Integrated Transport Operational Programme Plus and Territorial and Settlement Development Operational Programme Plus. At the same time, Commission shall not enter with any public interest trust established based on the Hungarian Act IX of 2021 or any entity maintained by such a public interest trust. At the end of the 2023, the Hungary did not fulfil the conditions for lifting the suspension. The Council used its competence to amend the Commission proposal and lowered originally suggested 65% suspension to just 55%. However, further concerns on rather political than legal treatment remain, as after Hungarian prime minister Orbán meeting with Russian president Putin 69 HANA KOVÁČIKOVÁ in October 2023, REUTERS® came with the information, that political trade between “Brussels” and Hungary is considered and that Hungarian approval for further aid to Ukraine will be compensated by the lifting of suspended funds. On 13 December 2023, the Commission indeed lifted the suspension of ESIF funds. However, by the decision from the same day, it stated, that “in the absence of any new remedial measure adopted by Hungary and notified to the Commission in accordance with Article 7(1) and (2) of the Conditionality Regulation, and in view of the assessment presented above, the situation leading to the adoption of the measures has not been remedied and the Union’s budget remains at the same level of risk. Therefore, the measures under Article 2 of the Council Implementing Decision should remain in place. “As the sound management of ESIF requires the same conditions as other expenditures from EU budget, it is not clear how and why the Commission considered fulfilment of conditions for ESIF budgetary commitments differently. Also 4 European Parliament´s groups published an open letter clearly doubting the real fulfilment of horizontal enabling conditions by Hungary. To conclude, despite having various instruments, that and synergically applied could be an effective tool to enforce the preservation the rule of law, it appears that other, rather political factors outweigh their duly application. However, relativisation of the rules or even worse, selective (not)application of the justice, could at the end, cause the scepticism of the citizens on whether EU itself follows the values on which it is founded. IV. PROCEDURAL AUTONOMY AND RULE OF LAW The concept of 'procedural autonomy' already has a history stretching over five decades and has been established as one of the main principles of the law of the European Union (EU). This chapter aims to confront this principle with the value/principle of rule of law. Although at first sight, both principles appear mutually notwithstanding, but their interplay can be crucial for the understanding and definition of the concept of procedural autonomy in the future. The concept of procedural autonomy deals with the area uncovered by the EU law, thus remaining in the sphere of national legislation. At the same time, the member states are obliged to enforce the EU law and honour their obligations arising from the EU law according to the principle of sincere cooperation. Since the legal order of the EU relies on the enforcement capacity of the Member States, the EU law may have requirements for the quality of the national legal environment in order for the EU law to be applied properly. In the first decades, the review of the effectiveness of the application of EU law by national measures was dominant; in recent years, scrutiny was expanded also to the securing the effective judicial protection. Reforms in the judiciary in Poland and Romania, as well as the political situation in Hungary, brought the values of the EU into focus. And, while the values of the EU can limit the scope of constitutional identity of the Member States and thus the sovereign sphere of respected national identity of the Member States, it is apparent that the question of how far EU law can shape national procedural rules and institutional setting becomes a meeting point between the concept of 'procedural autonomy' and the value of 'rule of law'. 71 ONDREJ BLAŽO 4.1. THE CONCEPT OF PROCEDURAL AUTONOMY The concept of procedural autonomy of the Member States of in application of EU law is a well-established and unchallenged part of the terminology of EU law. Although in Wells30 the Court of Justice of the European Union (CJEU)31 labelled this concept with the name “procedural autonomy”, the concept is much older, although it did not have this name. The judgments in Rewe v Landwirtschaftskammer für das Saarland32 and Comet BV v Produktschap voor Siergewassen33 were viewed as a first and basic expression of the principle:“(…) in the absence of Community rules on this subject , it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature”. The principle of equivalence included in the first part of the “Rewe formula” was completed with the principle of effectiveness:, i.e., the national procedural rules for the enforcement of EU law shall be applied insofar they make it “(…) impossible in practice to exercise the rights which the national courts are obliged to protect.”34 Thereafter, from 1970s, the principle of procedural autonomy became an integral part of the system of application and enforcement of EU law (earlier Community law), notwithstanding the fact, that it got its “name” later. 30 Judgment of 7 January 2004, Wells, C-201/02, EU:C:2004:12,. For easier reading, the judicial body of the EU will be called as CJEU throughout this paper, notwithstanding its precise name during the history. 32 Judgment of 16 December 1976, Rewe v Landwirtschaftskammer für das Saarland, C33/76, EU:C:1976:188, par. 5. 33 Judgment of 16 December 1976, Comet BV v Produktschap voor Siergewassen, C45/76, EU:C:1976:191, par. 13. 34 Judgment of 16 December 1976, Rewe v Landwirtschaftskammer für das Saarland, C33/76, EU:C:1976:188, par. 5. 31 IV. PROCEDURAL AUTONOMY AND RULE OF LAW However, does the label of “procedural autonomy” really refer to its content, i.e. dues it really refer to the sphere of the autonomy of the Member States in procedural matters? So is it really Gertrude Stein’s “Rose is a rose is a rose is a rose…“ or more William Shakespeare’s "…a rose by any other name would smell as sweet…“? Indeed, in literature is the concept named also as “procedural competence” of the Member States or ”national procedural responsibility” (Craig & Búrca, 2020, p. 264). 4.2. SOURCES FOR PROCEDURAL AUTONOMY IN PRIMARY LAW The principle of “procedural autonomy” can be derived from three sources of primary law: (1) Sincere cooperation and the duty to enforce EU law by the Member States (Art.4 par. 3 Treaty on European Union (TEU), Art. 19 par. 1 TEU; Art. 288 Treaty on the Functioning of the European Union(TFEU), Art. 291 par. 1 TFEU) (2) Conferral and lack of competence of the EU (Art. 4 par. 1 TEU and Art. 5 par. 2 TEU); (3) Respect of national identity (Art. 4 par. 2 TEU). The duty to enforce EU law notwithstanding the existence of EU law procedural provisions has its basis, primary in the principle of sincere cooperation (principle of loyalty). In International Fruit Company and Others v Produktschap voor Groenten en fruit the CJEU described a link between the principle of loyalty (sincere cooperation) and duty of the Member State to designate competent authorities for application and enforcement law, which was later developed into the principle of 73 ONDREJ BLAŽO procedural autonomy.35 The national legislator is therefore obliged to provide such an institutional and legal framework that enables national enforcement bodies (including judiciary and administrative bodies) to fulfil their obligation to apply regulations and (transposed) directives in conformity with the EU law, to conclude procedures within a reasonable time and to provide information, i.e., to create the appropriate authorities and organise them in a way that ensures orderly and quick administrative execution (Blanke & Mangiameli, 2013, p. 239). The Member States operate in three possible enforcement institutional settings depending on the level of centralisation or decentralisation of enforcement powers: (1) Fully centralized enforcement model: In some limited areas, the enforcement of EU law is completely entrusted to the European Commission or other EU agency and only residual powers or mere duty to cooperate with the EU body, support it or provide information, e.g., common commercial policy, the Digital Markets Act.36 (2) Parallel enforcement model: EU law is enforced parallelly by the EU body and national bodies in full, i.e., both have a full competence to enforce the EU law, e.g., antitrust rules.37 (3) Fully decentralised enforcement model: there is no EU-level enforcement body, and the EU law is applied purely by national 35 Judgment 15 December 1971, International Fruit Company and Others v Produktschap voor Groenten en fruit, C-51/71, EU:C:1971:128, par. 3: “Although under article 5 of the Treaty the Member States are obliged to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty, it is for them to determine which institutions within the national system shall be empowered to adopt the said measures”. 36 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 277, 27.10.2022, p. 1–102). 37 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1– 25). IV. PROCEDURAL AUTONOMY AND RULE OF LAW bodies with the unifying competence of the CJEU via preliminary rulings. From the perspective of the procedural rules themselves or institutional setting, the legislators and authorities of the Member States operate in different frameworks depending on the level and intensity of harmonisation: from unregulated plane to the level of harmonisation covering also details of form of action, institutional arrangement, including appointment and dismissal of management staff of national enforcement bodies (for details see, e.g., Blažo, 2018). Without going into further details, it is possible to sum up that the powers to enforce of EU law by the Member States and their bodies do not depend on the division of powers under Art. 3 and Art. 4 TFEU but on the result of legislative action by the EU institutions. The Member States and their bodies are obliged to enforce rules within the exclusive competence and shared competence indiscriminately, and the EU can shape the intensity and form of enforcement (or leave it completely to the Member States) in the sphere of exclusive competence or shared competence as well. The principle of conferral and lack of the competence of the EU can serve as another legal source for the procedural autonomy. Indeed, the primary law of the EU does not contain any setting for national procedural rules or institutional framework. A rare exemption can be found, e.g. in the roles on national central banks(including to the duty to establish a body with necessary competence corresponding to the concept of “national central bank”) and their governors.38 However, the secondary law provides more examples of introduction of rules requiring the Member States to establish national bodies with certain 38 Art. 14 Protocol (no 4) on the Statute of the European System of Central Banks and of the European Central Bank. 75 ONDREJ BLAŽO characteristics, vest them with specified competence or duties, or providing certain standards for procedural law or enforcement requirements for substantive law. The respect to national identity under Art. 4(2) TEU forms an ultimate safeguard protecting fundamental features of constitutional and political systems of the Member States (Kiššová, 2022, p. 151) and thus constitutional plurality of the Member States, which cannot, on the other hand erode “value homogeneity as a gravity centre of legal integration” (Mader, 2019, p. 136). For the purposes of the concept of procedural autonomy of the Member States, it useful to focus on those aspects of the principle of the respect of national identity of the Member States that is related to the institutional setting of the Member States. The case law of the CJEU traces long before embedding the principle of the respect of national identity into the current version of the TEU after the Treaty of Lisbon (Besselink, 2010; Kiššová, 2022). Already in International Fruit Company and Others v Produktschap voor Groenten en fruit the CJEU confirmed the autonomy of the Member States to assign competent national bodies to bring EU law into life.39 This intraMember State assignment of competence does not cover only horizontal (legislative bodies, law-making competence of executive bodies), but also vertical division of powers between central and local bodies, including sub-state units. Indeed, national bodies vested with transposition or implementation of EU law must hold appropriate competence and if harmonization of laws is necessary, the duty to transpose the directive in issue cannot be assigned to administrative body with no legislative competence.40 Accepting the vertical intra39 Judgment 15 December 1971, International Fruit Company and Others v Produktschap voor Groenten en fruit, C-51/71, EU:C:1971:128, par. 3. 40 Judgment of 25 May 1982, Commission v Netherlands, C-96/81, EU:C:1982:118, par. 12: “The directive in question , adopted inter alia pursuant to article 100 of the EEC Treaty , is intended to approximate the applicable laws , regulations and administrative provisions in the member states . Mere administrative practices , which by their nature IV. PROCEDURAL AUTONOMY AND RULE OF LAW Member States division of powers does not involve only unitary states but is much more urgent in federal states in which some competences necessary for implementation or transposition of rules of EU law are not given to the central (federal) bodies but, under the federal constitutions, remained in the competence of federal units (e.g. Länder in Germany or Austria).Nevertheless, the CJEU constantly held that “…each member state is free to delegate powers to its domestic authorities as it considers fit and to implement the directive by means of measures adopted by regional or local authorities. That does not however release it from the obligation to give effect to the provisions of the directive by means of national provisions of a binding nature.”41 The complexity of federal structure of Germany came into the consideration of the CJEU several times and the CJEU also acknowledged the model, that the competence in the area covered by EU law rests completely in the hands of a federal unit.42 This allocation of competence, can lead, however, to the situation of intra-Member State heterogeneity in application of EU across the territory of the Member State.43 This allocation of powers may also require coordination between the federal bodies and bodies of units of the federation to bring EU law to full effect.44 Nevertheless, EU may be altered at the whim of the administration , may not be considered as constituting the proper fulfilment of the obligation deriving from that directive.“ 41 Judgment of 25 May 1982, Commission v Netherlands, C-96/81, EU:C:1982:118, par. 12; similarly, e.g.,Judgment of 14 January 1988, Commission v Belgium, C-227/85, EU:C:1988:6, par. 9; Judgment of 28 February 1991, Commission v Germany, C-131/88, EU:C:1991:87, par. 71; Judgment of 13 September 2001, Commission v Spain, C-417/99, EU:C:2001:445, par. 37. 42 Judgment of 21 July 2011, Fuchs and Köhler, C-159/10, EU:C:2011:508, par. 55: “In a State such as the Federal Republic of Germany, the legislature may take the view that, in the interests of all the persons concerned, it is for the Länder rather than the Federal authorities to adopt certain legislative measures (…)“. 43 Judgment of 16 July 2006, Horvath, C-428/07, EU:C:2009:458, par. 26 and 53. 44 Judgment of 8 September 2010, Carmen Media Group, C-46/08, EU:C:2010:505, par. 70: “It follows from the above that, whilst EU law does not preclude an internal allocation of competences whereby certain games of chance are a matter for the Länder and others for the federal authority, the fact remains that, in such a case, the authorities of the Land concerned and the federal authorities are jointly required to fulfil the 77 ONDREJ BLAŽO law accepts the heterogeneity of application of EU law within the Member State’s territory and in cases of full competence of the units of federation, they are not obliged to unify or harmonize their respective regulation, provided they still move within the ambit of the margin of discretion granted by EU law.45In fact, in Digibet and Albers the CJEU linked all previous case law dealing with the autonomy of the Member State to assign the structure of bodies applying duties stemming from EU law, including vertical division powers between federal (or central) government and national bodies to the principle of respecting national identity under Art. 4(2) TEU.46 The principle of respect of national identity does not shield only “static” aspect of allocation of powers of the public bodies within Member States, but also “dynamic” aspect obligation on the Federal Republic of Germany not to infringe Article 49 EC. It follows that, in the full measure to which compliance with that obligation requires it, those various authorities are bound, for that purpose, to coordinate the exercise of their respective competences.“ 45 Judgment of 12 June 2014, , Digibet and Albers, C-156/13, EU:C:2014:1756, par. 36 and operative part: “Finally, even assuming that the existence of legislation of one Land, which is more liberal than that in force in the other Länder, might damage the consistency of the legislation at issue as a whole, it must be observed that, in the circumstances of the case in the main proceedings, such damage to consistency was limited ratione temporis and ratione loci to a single Land. Therefore, it cannot be argued that the derogating legal situation in one Land seriously affects the appropriateness of the restrictions on games of chance applicable in all the other Länder to achieve the legitimate public interest objectives that they pursue.” (…) “Article 56 TFEU must be interpreted as meaning that it does not preclude legislation common to the majority of the federal entities of a Member State having a federal structure which prohibits, in principle, the organisation and facilitation of games of chance via the internet, where, for a limited period, a single federal entity has maintained in force more liberal legislation coexisting with the restrictive legislation of the other federal entities, provided that such legislation is able to satisfy the conditions of proportionality laid down by the case-law of the Court, which is for the national court to ascertain.” 46 Judgment of 12 June 2014, Digibet and Albers, C-156/13, EU:C:2014:1756, par. 34: “In the present case, the division of competences between the Länder cannot be called into question, since it benefits from the protection conferred by Article 4(2) TEU, according to which the Union must respect national identities, inherent in their fundamental structures, political and constitutional, including regional and local self-government.” IV. PROCEDURAL AUTONOMY AND RULE OF LAW consisting in transfers and allocation of competences to other bodies or creating new legal persons. 47 Summing up, procedural autonomy of the Member States is partially shielded by the principle of respect to national identity of the Member States insofar the application of elements of national identity does not hinder application of EU law. In this context, Art. 4(2) TEU as introduced by the Treaty of Lisbon,48 did not bring any significantly new prism for the scope and limits of the procedural autonomy. Even the petrification of the principle of respecting national identity into current Art. 4(2) TEU and linking it to the previous case law of the CJEU did not make the argument of the “protected” sphere of the institutional and procedural arrangement of the Members States any stronger due to direct reference to primary law, because the CJEU already in older case law provided the guarantees for intra-Member State organization as an interpretation of primary law (principle of sincere cooperation). 4.3. IS ”PROCEDURAL AUTONOMY” REALLY “PROCEDURAL”? The CJEU invested name “procedural autonomy” originally nameless principle of the right of the Member States to shape means of enforcement of EU law , but there is a question, whether this principle really covers procedural law. In general, procedural law is understood as a set of norms for creating framework and providing riles for enforcing the substantive law. The CJEU included into the concept of “procedural 47 Judgment of the Court , Remondis, C-51/15, EU:C:2016:985, par. 41: “Such reorganisations, which may take the form of reallocations of competences from one public authority to another imposed by a higher-ranking authority or voluntary transfers of competences between public authorities, have the consequence that a previously competent authority is released from or relinquishes the obligation or power to perform a given public task, whereas another authority is henceforth entrusted with that obligation or power.“ 48 Neither did the wording of this principle in the pre-Lisbon version of the TEU. 79 ONDREJ BLAŽO autonomy” (notwithstanding, whether the concept was named or the CJEU merely described the concept that was later labelled as “procedural autonomy”) different aspects of application law. The following part describes some of these different in order to demonstrate an ultimate plurality of the content of the concept of “procedural autonomy. In Amministrazione delle finanze dello Stato v San Giorgio the CJEU assess the aspects of national rules of evidence49 and there is no doubt that rule of evidence falls into the scope of common understanding of procedural law. Similarly, requirements for actions, including interim measures50 fall into the scope of the concept of procedural law as well as res judicata limit to file and action. 51 The costs of the court proceeding were included into the scope of procedural autonomy.52 Thus, the CJEU 49 Judgment of 9 November 1983, Amministrazione delle finanze dello Stato v San Giorgio, C-199/82, EU:C:1983:318, par. 18: “(...) a Member State cannot make the repayment of national charges levied contrary to the requirements of Community law conditional upon the production of proof that those charges have not been passed on to other persons if the repayment is subject to rules of evidence which render the exercise of that right virtually impossible , even where the repayment of other taxes, charges or duties levied in breach of national law is subject to the same restrictive conditions.“ 50 See, e.g. Judgment of 13 March 2007, Unibet, C-432/05, EU:C:2007:163, par. 3 operative part: “The principle of effective judicial protection of an individual’s rights under Community law must be interpreted as meaning that, where the compatibility of national provisions with Community law is being challenged, the grant of any interim relief to suspend the application of such provisions until the competent court has given a ruling on whether those provisions are compatible with Community law is governed by the criteria laid down by the national law applicable before that court, provided that those criteria are no less favourable than those applying to similar domestic actions and do not render practically impossible or excessively difficult the interim judicial protection of those rights.“ 51 Judgment of 6 October 2009, Asturcom Telecomunicaciones, EU:C:2009:615, par. 38: “In the absence of Community legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States.“ 52 Judgment of 16 July 2020, Caixabank, C-224/19 ,EU:C:2020:578; Judgment of 7 April 2022, Caixabank, C-385/20, EU:C:2022:278. IV. PROCEDURAL AUTONOMY AND RULE OF LAW constantly confirmed that the rules of national procedural law utterly fall into the scope of procedural autonomy of the Member States. However, the interpretation of the “procedural” autonomy went also outside of the ambit of procedural law stricto sensu. Limitation periods53 constitute the first group of rules that were included into the notion of procedural autonomy and are typically part of substantive law. It can be contemplated that limitation periods are linked to the enforcement, i.e., procedural law, however the following examples of notions that enjoy inclusion into the framework of procedural autonomy are typical examples of substantive law. In Manfredi54 and in Arjona Camacho55 it assessed punitive character of damages and existence of duty to establish/grant civil punitive remedy for discrimination, while in Courage and Crehan56 and in Manfredi57 the CJEU provided elements for substantive rules for the private enforcement of EU competition law, including requiring providing 53 Judgment of 16 December 1976, Comet BV v Produktschap voor Siergewassen, C45/76, EU:C:1976:191: “In the case of a litigant who is challenging before the national courts a decision of a national body for incompatibility with community law , that law , in its present state , does not prevent the expiry of the period within which proceedings must be brought under national law from being raised against him , provided that the procedural rules applicable in his case are not less favourable than those governing the same right of action on an internal matter”; or Judgment of 16 July 2020, Caixabank, C224/19 ,EU:C:2020:578: Judgment of 28 March 2019, Cogeco Communications,C-637/17, EU:C:2019:263: “Article 102 TFEU and the principle of effectiveness must be interpreted as precluding national legislation which, first, provides that the limitation period in respect of actions for damages is three years and starts to run from the date on which the injured party was aware of its right to compensation, even if unaware of the identity of the person liable and, secondly, does not include any possibility of suspending or interrupting that period during proceedings before the national competition authority.” 54 Judgment of 13 July 2006, Manfredi, C-295/04, EU:C:2006:461. 55 Judgment of 17 December 2015, Arjona Camacho, C-407/14, EU:C:2015:831. 56 Judgment of the Court of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465. 57 Judgment of 13 July 2006, Manfredi, C-295/04, EU:C:2006:461. 81 ONDREJ BLAŽO damages covering actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest. 4.4. DOES ”PROCEDURAL AUTONOMY” REALLY MEAN “AUTONOMY”? The notion “autonomy” can be understood as full and unfettered power of Member States to shape their national institutional settings, procedural laws as well as substantive rules necessary for application and enforcement of EU law. However, already in Rewe formula, the CJEU framed the space of the “procedural autonomy” by “…absence of Community rules on this subject…”, and principles that were later labelled as principle of effectiveness and equivalence. The tension with the principle of equivalence did not came into issue as frequently as the principle of effectiveness that enable the CJEU to engage in gradual judicial harmonization of procedural rules (Bobek, 2011, p. 322). It is hard to draw a perfect line between the national law and the EU law (Zingales, 2010, p. 429), however, the concept of “absence of EU rules on the subject” was précised by consequent case law. In Caixabank the CJEU referred to the concept of absence of “specific rules”,58 in Mostaza Claro to absence of “relevant Community rules”,59 in Asturcom Telecomunicaciones absence of “Community legislation in this area”60 or 58 Judgment of 16 July 2020, Caixabank, C-224/19 ,EU:C:2020:578, par. 83: “(…) in the absence of specific EU legislation in this area, the rules implementing consumer protection, provided for in Articles 6(1) and 7(1) of Directive 93/13, are a matter for the domestic legal order of the Member States, in accordance with the principle of the procedural autonomy of the latter.” 59 Judgment of 26 October 2006, Mostaza Claro, C-168/05, EU:C:2006:675, par. 24: “(...)in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States (...)“. 60 Judgment of 6 October 2009, Asturcom Telecomunicaciones, EU:C:2009:615, par. 38: “In the absence of Community legislation in this area, the rules implementing the IV. PROCEDURAL AUTONOMY AND RULE OF LAW finally in Aziz,61 Sánchez Morcillo and Abril García62, Finanmadrid EFC63 or Addiko Bank64 the CJEU constantly started to refer to “absence of harmonisation of the national enforcement mechanisms.” At the first sight, it looks as if the CJEU maintained its course in understanding the scope of procedural autonomy, but reference to “absence of harmonization of the national enforcement mechanism” describes the situation better than “absence of EU rules on subject”. More precisely we can consider rules on the principle of sincere cooperation under Art. 4(3) TEU, the principles of effectiveness and equivalence derived from them being “EU rules on the subject” of enforcement of EU law. Therefore, there is no sphere of the legal orders of the Member States governing enforcement of EU law uncovered at least partially by EU law itself. The sphere of “procedural autonomy” has recently been constantly shrinking through different avenues, in particular by applying Art. 114 TFEU. This provision was originally understood as a form of approximation of national substantive rules to remove obstacles to market freedoms, but the CJEU confirmed that even establishing a new agency or body within the EU institutional framework falls into the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States.“ 61 Judgment of 14 March 2013,Aziz, C-415/11, EU:C:2013:164, par. 50: “(...) in the absence of harmonisation of the national mechanisms for enforcement, the rules implementing the grounds of objection allowed in mortgage enforcement proceedings and the powers conferred on the court hearing the declaratory proceedings, which enjoys jurisdiction to analyse the lawfulness of the contractual clauses on the basis of which the right to seek enforcement was established, are a matter for the national legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States (...)“ 62 Judgment of 17 July 2014, Sánchez Morcillo and Abril García, C 169/14, EU:C:2014:2099, par. 31. 63 Judgment of 18 February 2016, Finanmadrid EFC, C-49/14, EU:C:2016:98, par. 40. 64 Judgment of 26 June 2019, Addiko Bank, C-407/18, EU:C:2019:537, par. 46. 83 ONDREJ BLAŽO scope of harmonisation under Art. 114 TFEU.65 Therefore, the source of the existence of procedural autonomy of the Member States stemming from the principle of conferral and lack of competence seems to be significantly diminished, at least in the spere of internal market, due to possible expansion of EU legislature into purely procedural rules and the design of national enforcement bodies.66 This situation is, moreover, underpinned by the admissibility of so-called preventive harmonization (Weatherill, 2011, 2012), i.e., it is not necessary to demonstrate that the diversity of national rules leads to the obstacles to free circulation on the internal market.67 The CJEU has been gradually expanding the scope of judicial harmonization of enforcement measures of the Member States via test 65 Judgment of 2 May 2006, United Kingdom v Parliament and Council, C-217/04, EU:C:2006:279, par. 44 and 45: “(…) The legislature may deem it necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate. (…) the tasks conferred on such a body must be closely linked to the subject-matter of the acts approximating the laws, regulations and administrative provisions of the Member States. (…) the Community body thus established provides services to national authorities and/or operators which affect the homogenous implementation of harmonising instruments and which are likely to facilitate their application.”; Judgment of 22 January 2014, United Kingdom v Parliament and Council, C-270/12, EU:C:2014:18, par. 105: “(…) the EU legislature, in its choice of method of harmonisation and, taking account of the discretion it enjoys with regard to the measures provided for under Article 114 TFEU, may delegate to a Union body, office or agency powers for the implementation of the harmonisation sought. That is the case in particular where the measures to be adopted are dependent on specific professional and technical expertise and the ability of such a body to respond swiftly and appropriately.” 66 E.g. Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ L 11, 14.1.2019, p. 3–33). 67 E.g., Judgment of 12 December 2006, Germany v Parliament and Council, C-380/03, EU:C:2006:772; Judgment of 8 June 2010, Vodafone and Others, C-58/08, EU:C:2010:321. IV. PROCEDURAL AUTONOMY AND RULE OF LAW of effectiveness of the enforcement of EU law, e.g., in the area of the minimal requirements for damages68 or the duty to re-review closed case if the CJEU provided interpretation of EU law after rendering final decision by national authority.69 For the application of the test of effectiveness, it is necessary to consider the national legal system as a whole and the CJEU granted a procedural “rule of reason” for the scrutiny of national procedural rules,70 i.e., impediment of effectiveness by a national rule, existence of legitimate interest for the national rule and the proportionality between the goal pursued by the national law and the decreasing of the effectiveness of the enforcement of EU law (Delicostopoulos, 2003; Van Cleynenbreugel, 2014). Nevertheless, even in such an expansion of the judicial harmonization, the requirement for 68 Judgment of 19 June 1990, The Queen v Secretary of State for Transport, ex parte Factortame,C-213/89, EU:C:1990:257: “(…) a national court which, (…), considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.”; Judgment of 17 December 2015, Arjona Camacho, C-407/14, EU:C:2015:831, par. 45: “(…) in order for the loss and damage sustained as a result of discrimination on grounds of sex to be the subject of genuine and effective compensation or reparation in a way which is dissuasive and proportionate, that article requires Member States which choose the financial form of compensation to introduce in their national legal systems, in accordance with detailed arrangements which they determine, measures providing for payment to the person injured of compensation which covers in full the loss and damage sustained.” 69 E.g., Judgment of 18 July 2007, Lucchini, C-119/05, EU:C:2007:434: “Community law precludes the application of a provision of national law, such as Article 2909 of the Italian Codice Civile (Civil Code), which seeks to lay down the principle of res judicata in so far as the application of that provision prevents the recovery of State aid granted in breach of Community law which has been found to be incompatible with the common market in a decision of the Commission of the European Communities which has become final.” 70 Judgment of December 1995, Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten, C-430/93, EU:C:1995:441, par. 19: “(...) each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration.“ 85 ONDREJ BLAŽO effectiveness never has provided a basis for application or enforcement of rule non-existing in the national legal framework, i.e., assigning to an administrative body a competence not provided by national law.71 The situation can be different, when “if it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or again if the sole means whereby individuals can obtain access to a court is by breaking the law.”72 In other cases, which are not so extreme that the national courts can establish their competence purely on the principle of primacy of EU law and duty to enforce EU law effectively, the principle of effectiveness does not oblige the Member States to establish appeal procedures at higher court instances, however, the right for damages for harmed individuals is still entailing form the EU law.73 Hence, judicial review without any basis in national law can be applied merely in so extreme situations where Art. 47 Charter of Fundamental Rights of the European Union (CFR) comes into danger due to non-existence of any effective judicial remedy.74 71 Compare, Judgment of the Court of 13 January 2004, Kühne & Heitz, C-453/00, EU:C:2004:17: “The principle of cooperation (…) imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where - under national law, it has the power to reopen that decision; (…)”. 72 Judgment of 14 May 2020, Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU, EU:C:2020:367, par. 143. 73 Judgment of 21 December 2021, Randstad Italia, C-497/20, EU:C:2021:1037, par. 80 and operative part. 74 See, e.g., Judgment of 14 May 2020, Országos Idegenrendeszeti Főigazgatóság Délalföldi Regionális Igazgatóság, C-924/19 PPU, EU:C:2020:367, operative part: “The principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court, in the absence of a national provision providing for judicial review of the right to housing, within the meaning of Article 17 of Directive 2013/33, to declare that it has jurisdiction to hear and determine the action seeking to guarantee such a right.” IV. PROCEDURAL AUTONOMY AND RULE OF LAW 4.5. MORE TESTS FOR “PROCEDURAL AUTONOMY”: TEST NO. 1 – JUDICIAL PROTECTION In the previous part, it was noted, that the requirement stemming from Art. 47 CFR (Right to an effective remedy and to a fair trial) can add another layer for assessment of application of EU law by the Member States, since the requirement for effective judicial protection cannot be interchanged for the principle of “effectiveness” as it was described in Rewe formula (Krommendijk, 2016; Prechal & Widdershoven, 2011; Widdershoven ,2019, 21). The right of individuals based on Art. 47 CFR was apparently not originally involved within the limits of procedural autonomy of the Member States, and effectiveness and equivalence have been mentioned as the only tests for suitability of national rules in application of EU law. Since the CFR is, under Art. 51 thereof, also addressed to the Member Stats “only when they are implementing Union law“ in must be assumed that every implementation of EU law by national bodies under national law of the Member States must comply with the obligation to provide effective remedy and fair trial to individuals under Art. 47 CFR. For example, in SC Cridar Cons,75 the CJEU reviewed the duty to provide grounds and, in Randstad Italia,76 the right for appeal as additional layer for scrutiny of the national procedural rules that already passed through the scrutiny of effectiveness and equivalence. Disclosure of evidence,77 mandatory participation in mediation as a condition for further judicial action, 78 or out-of-court settlement prior such an action,79 exhaustion of 75 Judgment of 24 February 2022, SC Cridar Cons, C-582/20, EU:C:2022:114. Judgment of 21 December 2021, Randstad Italia, C-497/20, EU:C:2021:1037. 77 Judgment 4 June 2013, ZZ, C-300/11, EU:C:2013:363. 78 Judgment of 14 June 2017, Menini and Rampanelli, C-75/16, EU:C:2017:132. 79 Judgment of 18 March 2010, Alassini and Others, C-317/08, EU:C:2010:146. 76 87 ONDREJ BLAŽO administrative remedies before requesting judicial protection,80 can server as other examples where national procedural law was scrutinized via the prism of Art. 47 CFR. In this context, the CJEU confirmed a triad for such a scrutiny of procedural autonomy of the Member States in Alassini and Others: effectiveness – equivalence – effective judicial protection.81 While in previous cases the CJEU assessed the compatibility of national enforcement rules with Art. 47 CFR, Associação Sindical dos Juízes Portugueses82 case opened up institutional setting of the national law enforcement to the scrutiny by the CJEU. In particular, Art. 19(1) second subparagraph TEU83 provided another legal basis for examination of the level of independence of judiciary in the Member States, together with Art. 47 CFR.The combination of Art. 19(1) TEU and Art. 47 TEU aimed to provide protection of individuals in the field of application of EU law as well as effective application of EU law allowed the CJEU push the borders of the elements of constitutional identity of the Member States and to stepped into the field of reviewing such national institutional 80 Judgment of 27 September 2017, Puškár, C-73/16, EU:C:2017:725, operative part, par. 1: “It is important, in particular, that the prior exhaustion of the available remedies before the national administrative authorities does not lead to a substantial delay in bringing a legal action, that it involves the suspension of the limitation period of the rights concerned and that it does not involve excessive costs.” 81 Judgment of 18 March 2010, Alassini and Others, C-317/08, EU:C:2010:146, operative part, par. 2: “Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.” 82 Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C64/16,EU:C:2018:117. 83 “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.“ IV. PROCEDURAL AUTONOMY AND RULE OF LAW setting of judiciary as appointment of judges,84 disciplinary procedures against judges85 and dismissal of judges86 as well as the existence of specialized department within the system of public prosecution in respect of crimes committed by judges.87 Stripping a national enforcement body (disciplinary chamber) the competence to hear case was the most extreme involvement of the CJEU into the institutional construction of a Member State.88 The independence of judiciary and the right to a fair trial were not part of consideration of the quality of national enforcement of EU law in the previous century under the Rewe formula and its further development as it became later in case law mentioned in this part of the chapter. This focus of the CJEU’s review of national enforcement rules, including institutional setting, underlined the current development that there is no part of national legal order left outside the scope of EU law, if the application, implementation or enforcement of EU law arises. 4.6. MORE TESTS FOR “PROCEDURAL AUTONOMY”: TEST NO. 2 – RULE OF LAW Originally, the CJEU was quite reluctant to provide interpretation of the principle-value of rule of law as mentioned in Art. 2 TEU and linked it to 84 Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153; Judgment of 20 April 2021, Repubblika, C896/19, EU:C:2021:311. 85 Judgment of 19 November 2019, A.K. (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, EU:C:2019:982. 86 Judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C-619/18, EU:C:2019:531, Judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts), C-192/18, EU:C:2019:924. 87 Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’, C-83/19, EU:C:2021:393. 88 Judgment of 19 November 2019, A.K. (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, EU:C:2019:982, operative part. 89 ONDREJ BLAŽO Art. 19(1) TEU as an expression of the former.89 Therefore the CJEU did not consider necessary to interpret Art. 2 TEU itself and provided interpretation of Art. 19(1) TEU instead. However, the series of cases covering judicial reforms in Poland and Romania (for further details see, e.g., Kosar & Kadlec, 2022) led the CJEU to strengthening legal link between Art. 19(1) TEU and Art. 2 TEU by including the interpretation of Art. 2 TEU into operative parts of judgments.90 Since the CJEU always linked reference to Art. 2 to Art. 19(1) TEU, it is hard to evaluate the “independent” interpretation of Art. 2 TEU in terms of rule of law and the question of procedural autonomy. However, if we consider Art. 4(2) TEU, i.e., principle of respect to national identity, and “reserved area” of the constitutional framework of the Member States, involvement of Art. 2 TEU becomes urgent. Since the EU law cannot consider those elements of “constitutional” identity of the Member States that contravene values under Art. 2 TEU, measures contrary to rule of law cannot be shielded by Art. 4(2) TEU as a legitimate 'national identity' of the Member States (Pech, 2022).In the recent case law, the CJEU provided an explanation of the arrangements of the judiciary system that are not acceptable according to the value/principle of the rule of law and therefore not acceptable operative organisation for enforcement of the EU law adding an additional layer to the limits of procedural autonomy of the Member States. 4.7. CONCLUSIONS 89 E.g. Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C64/16,EU:C:2018:117, par. 30, 35 and 36; Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, par. 108. 90 Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’, C-83/19, EU:C:2021:393; Judgment of 22 February 2022, RS (Effet des arrêts d’une cour constitutionnelle), C-430/21; EU:C:2022:99; Judgment of 11 May 2023, Inspecţia Judiciară, C-817/21, EU:C:2023:391 IV. PROCEDURAL AUTONOMY AND RULE OF LAW It is no surprise that the concept of 'procedural autonomy' refers neither to procedural law nor to the autonomy of legal orders of the Member States and covers procedural, institutional, and substantive rules. Simultaneous requirement for effectiveness and equivalent application of EU law intrinsically connected with the notion of procedural autonomy from the very beginning of this concept require certain action by the Member State. The CJEU gradually created a body of case law forming certain judicial harmonization of content of procedural autonomy of the Member States. Thus even outside of legislative harmonization, judicial harmonization deepened integration of legal orders of the Member States through the principles of effectiveness and equivalence. Recent decades have put forward the requirements for an effective judicial protection provided by the CFR and value-orientated scrutiny of judicial systems of the Member States. These additional tests complemented the requirement for effective judicial protection and the requirements of the rule of law. In summary, the definition of 'procedural autonomy' can be rephrased as follows: 'In absence of harmonisation of the national enforcement mechanism, it is for the domestic legal system of each member state with respect to the values of the EU, in particular the rule of law, and with the aim of providing effective judicial protection, designating competent courts or other enforcement bodies and determining the procedural conditions and remedies for protection of the rights of individuals originating from EU law, provided such conditions and remedies cannot be less favourable than those relating to similar actions or remedies of domestic nature, and the national procedural rules for the enforcement of EU law shall be applied insofar they make it impossible in practice to exercise the rights which the national courts are obliged to protect.' 91 ONDREJ BLAŽO V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE Rule of law is one of the fundamental values of the European Union (TEU, 2009, Article 2). It is the basis of the democratic system in all Member States, necessary to ensure the protection of fundamental rights. It is also central to making the European Union work well as an area of freedom, security and justice and an internal market. In recent years, the European Commission has been confronted with several crisis in some EU countries, which revealed systemic threats to the rule of law. The Commission reacted by adopting the rule of law framework in 2014 (European Commission, 2014) to address such threats in EU countries. The objective of the rule of law framework is to prevent emerging threats to the rule of law to escalate to the point where the Commission must trigger the mechanisms of Article 7 of the Treaty on European Union. “(T)he rule of law” refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU. (Regulation EU, Euratom 2020/2092) 93 LUCIA MOKRÁ Since adoption of the Regulation (Regulation, 2020/2092) of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, the European Commission adopted not only definition of the rule of law, but also explicitly listed the attributes of a functional rule of law. As part of functionalising the rule of law, the European Union adopted EU’s toolbox for protecting the rule of law, which consists both of preventive measures and corrective measures. 5.1 PREVENTIVE MEASURES FOR PROTECTION OF RULE OF LAW The Rule of Law framework contains in between preventive instruments the EU Justice Scoreboard, Rule of Law Peer Review within the General Affairs Council and annual Council Rule of Law Dialogues. As these had been established already in 2014 as part of the EU rule of law framework, information provided within these preventive actions are also used as sources for the Rule of Law Report. (European Commission, 2014). The annual Rule of Law Report is evaluating the rule of law situation in all 27 EU Member States from application point of view. It is the outcome of evaluation conducted and consulted by several stakeholders, including civil society organisations beyond the national authorities and independent institutions and other stakeholders (see also chapter VI of this book). The methodology and timeline for consultations of stakeholders for the report preparation is set in advance and is transparent. The first report was published of 2020 and since 2022 it also includes recommendations for each member state. V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE 5.2. CORRECTIVE MEASURES TO RULE OF LAW Corrective approach of the European Union is implemented by the European Commission, which is as the EU institution responsible for the review of the fulfilment of the Member State to implement EU law and therefor possess the competence to initiate the infringement procedure (TFEU, Article 258). Another approach in case of violating rule of law was of financial character – withholding payment. The blocking of access to cohesion funds and financial programmes implemented by the European Commission is introduced as on the case-by-case basis, as for noncompliance with fundamental values and in the competence of the European Commission. Some criticism for lacking the structure to corrective measures led to adoption of the Rule of Law Conditionality Regulation (Regulation 2020/2092), which provides more structural approach, linked to the Multiannual Financial Framework (for financial instrument’s application, see chapter 3.2. of this book). The last, but often criticised approach is the enforcement of the rule of law based on Article 7 TEU, however not providing so much effective decision-making as expected. The development of the rule of law in the EU continuously undermine fundamental values of the European Union. The effectiveness of both preventive and coercive measures is questioned, and both EU and Member States called for the improvement. The focused analysis of the development of the rule of law in Member States, by following trends of the rule of law assessment in the Rule of Law Reports and the EU Justice Scoreboard, provide both the assessment of the development in time, as well as the perimeter of doubt in development in respective Member 95 LUCIA MOKRÁ States and potential implications to rule of law. It aims to illustrate the potential challenges if identified by stakeholders and continued to develop, which establishes the basis for the action of the Commission. The Rule of Law Report contains information and data regarding concrete themes and identify specific challenges, developments, and trends. It is covering four main areas of data collection and monitoring under the Rule of law framework, referring to concrete data from EU Justice Scoreboard: 1) Justice systems in the Member States 2) Anti-corruption frameworks 3) Media freedom and pluralism, focusing on core areas including the independence of the media regulatory authorities 4) Institutional issues related to checks and balances, focusing on areas of key importance for the rule of law Effective justice systems are crucial for the application and enforcement of EU law and upholding the rule of law. Judicial independence is a requirement derived from the principle of effective judicial protection, as guaranteed in the Treaty on European Union (TEU, Article 19), and from the right to an effective remedy before a court or tribunal as guaranteed in the Charter of Fundamental Rights of the EU (Charter of Fundamental Rights of the EU, Article 47). Independent judges and courts guarantee the fairness of judicial proceedings and the protection of rights of individuals. They are also essential for safeguarding the values set out in Article 2 TEU (TEU, Article 2). As identified in previous chapters, the European Commission acted against Member States due violation of rule of law, especially due breach of independence of judiciary (European Commission, 2017b: Poland, European Commission, 2022, Hungary). It is also the outcome of the 2023 EU Justice Scoreboard as resulted in Eurobarometer surveys conducted in 2023 show that the perception of independence among V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE the public improved in 12 Member States when compared to 2022 (European Commission, 2023ab: EU Justice Scoreboard, 2023 Figures 49 and 51). However, the concerns stay in regarding other countries. Therefore, following illustration compare development regarding first group of data from EU Justice Scoreboard – Justice systems in the Member States and focus on the variable – perceived independence. The aim of the illustration is to identify potential gaps in the rule of law in Member State(s) and highlight the trend in ensuring rule of law regarding the judicial independence. The EU Justice Scoreboard regarding perceived judicial independence by citizens in period of 2021-2023 (European Commission, 2023ab: EU Justice Scoreboard, 2023, Figure 49) shows not only the development of each country, but also provide data for perceived lack of independence. Such continuous development regarding increased lack of independence perceived by citizens is throughout years visible in Poland, Bulgaria, Greece, France and Spain. Although in other Member States the lack of judicial independence is also visible, the tendency is either decreasing or sustained. 97 LUCIA MOKRÁ Figure No. 1 Perceived judicial independence (by citizens) 2021-2023 1200 1000 800 600 400 200 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 2021 2023 0 FI DK AT DE LU SE IE NL BE MT EE Don't know CZ LT CY FR SI RO PT EL LV Total 'Good' IT HU ES SK BG PL HR Total 'Bad' Source: EU Justice Scoreboard, 2023, Figure 49 Similarly, Figure No. 2 - The EU Justice Scoreboard regarding perceived judicial independence by companies in period of 2021-2023 (European Commission, 2023ab:EU Justice Scoreboard, 2023, Figure 51) highlights the increase of perceived lack of independence by companies. Decrease of trust in judicial independence by companies is visible in much more Member States as by citizens, particularly in Poland, Italy, Slovenia, Cyprus, France, Greece, Belgium, Malta, Ireland and Luxembourg. Still slight decrease of judicial independence is confirmed in Portugal and Czechia, which means 12 Member States are at higher risk of the deterring investments in country. V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE Figure No. 2 Perceived judicial independence (by companies) 2021-2023 1200 1000 800 600 400 200 2023 2022 2023 2022 2021 2023 2022 2021 2023 2022 2021 2023 2022 2021 2023 2022 2021 2023 2022 2021 2023 2022 2021 2023 2022 2021 2021 0 FI DK AT LU NL IE DE SE MT LT CZ EE BE RO EL FR PT CY LV SI IT ES BG HU SK HR PL TOTAL Don't know Total 'Good' Total 'Bad' Source: EU Justice Scoreboard, 2023, Figure 51 By comparing the perception of independence of citizens and companies, beyond the obvious Member States (Poland) against which the European Commission either initiated infringement procedure or triggered Article 7 TEU’ mechanism, there are other countries which should be in the attention of the Commission. Between them are France and Greece, identified by both of citizens and companies with continuing lack of judicial independence. However, reasons of the lack of independence varies between Member States, in case of Poland and France it is on the first-place interference or pressure from government and politicians, while in case of Greece it is interference or pressure from economic or other specific interests. In case of Bulgaria, citizens identified increasing lack of judicial independence due interference or pressure from economic or other specific interests, however business companies find the judicial environment and rule of law safeguards like previous year. 99 LUCIA MOKRÁ The different perceptions as well as identified factors linked to the increasing lack of judicial independence by citizens and companies confirms political vulnerability of the EU’s rule of law toolbox (Jakab, 2022). European Commission see it however differently, arguing that almost 65% of the specific recommendations issued in 2022 to Member States have already been followed up in assessment of 2023. (EU Rule of Law Report, 2023). As resulted only from the time-development perspective on one comparative criterion used in the EU Rule of Law Report, we can underline the different approach on evaluating and concluding by the Commission. Whereas the Commission sees the rule of law from a formal and substantive perspective, the CJ EU focuses on the access to justice before independent and impartial courts. (Skóra, M., 2023 p. 6). The very technical EU Justice Scoreboard go beyond the rule of law definition in Regulation (Regulation 2020/2092) and these nonsystematic approach of EU institutions contributes to the crisis and weaken the EU’s decision-making processes, including the enforcement of the rule of law, but also in regarding the financial conditionality or the multi-financial framework negotiations 2021-2027 (Dimitrovs, A., Hubertus, D., 2020) Another problem linked to the rule of law from the comparative perspective is the delayed response of the EU institutions – even the EU rule of law framework, both in the preventive and corrective measures, does not flag the immediate response and there is no guarantee of the enforcement or infringement due several reasons (see chapter 1-3 of this book). EU itself therefor is contributing to the technical delays and non-effectiveness. The commitment to the rule of law standards should be not only the task for the Member States, but as it is the fundamental principle of EU, also the EU should lead by the example. The comprehensive and V. RULE OF LAW IN THE COMPARATIVE PERSPECTIVE effective monitoring, the enforcement of the rule of law through existing mechanisms should provide needed sign of the commitment and ascertains of the importance of rule of law and democracy in the Member States, and beyond. 101 LUCIA MOKRÁ VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS ANALYSIS OF IMPLEMENTATION OF THE RULE OF LAW IN SLOVAKIA AND CZECHIA In monitoring the situation and state of the rule of law in individual Member States, the European Commission continues to engage in an intensive dialogue with Member States as well as with stakeholders, bringing an independent perspective on the state of the rule of law in the European Union in general as well as in individual Member States in particular. Stakeholder engagement thus provides a broadening of relevant sources to complement the overall picture of the state of the rule of law. This process represents the practical application of the principle of participatory democracy under Art. 11 of the Treaty on European Union. The implementation of the consultation procedure is part of the democratisation of processes in the European institutions. The consultation procedures carried out by the European Commission were initially criticised (Marxsen, 2015) for not being sufficiently representative, as business and industry organisations have a strong position in them and the views of the non-profit sector are less taken into account. This situation has been redressed over the years and the voice of non-profit organisations or NGOs that are not focused on promoting private financial interests has been strengthened (but the Commission should be more proactive in seeking to involve more smaller organisations; Stephenson, 2023). This is also reflected in the setting of consultative processes on the rule of law, in which relevant information is provided primarily by NGOs but also by state institutions. 103 ANDREJ BELEŠ The stakeholders involved in 2023 are primarily international organisations (in particular the Council of Europe with its bodies - e.g. the European Commission for Democracy through Law - Venice Commission),91 national independent non-governmental organisations (NGO),92 representatives of interest groups (e.g. judges' associations, bar associations, representations of other legal professions)93 and other civil society organisations (including the media)94 , but also some national public protection and law enforcement institutions - e.g. the situation of the rule of law in Slovakia was also assessed by the Constitutional Court of the Slovak Republic.95 Stakeholders provided information in two ways: a) horizontal developments relating to the rule of law, meaning general developments in the state of the rule of law common to all or at least some of the Member States; and b) partial developments in individual Member States, concentrated mainly in four focal areas (i.e. the four pillars of the rule of law report): a. judicial systems, the independence of the judiciary and the relationship between the judiciary and other branches of government, 91 And so does the OECD. E.g. Allianz "Rechtssicherheit für politische Willensbildung", Amnesty International Hungary, Citizens Network Watchdog Poland, Reporters Without Borders / Reporters Sans Frontières (RSF), Democracy Reporting International, The Bulgarian Center for Not-for-Profit Law (BCNL) etc. 93 E.g. AEAJ, Association of European Administrative Judges, Association of Judges of Slovakia, Bundesrechtsanwaltskammer, Consejo General de la Abogacía Española, Österreichischer Rechtsanwaltskammertag (Austrian Bar). 94 E.g. Zweites Deutsches Fernsehen - ZDF. 95 Constitutional Court of the Slovak Republic, Oberster Gerichtshof der Republik Oesterreich, Supreme Court of Sweden, Supreme Court of Kingdom of Spain. 92 VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS b. a framework for combating corruption, primarily through criminal law, but also through legal means outside criminal law (e.g. whistleblower protection) c. media pluralism and independence d. and other institutional issues related to the checks and balances of the branches of the state government. These stakeholder contributions, as confirmed, are a very useful source of information for the work of the European Commission, in particular in identifying and assessing recent developments related to the national legal and institutional framework and its application in practice in the four areas (European Commission, 2023c).96 In the following sub-chapters, we will describe in more detail the views of stakeholders on the current state of the rule of law in the Member States in general, and we will analyse this in more detail in relation to selected rule of law issues (independence of the judiciary, corruption and lobbying, quality of the legislative process). We will then describe and explore in more detail the views of stakeholders on the state of the rule of law in two selected EU Member States: the Czech Republic and the Slovak Republic, analysing these views in the context of further knowledge on the current state of the rule of law in these Member States. 96 In addition to targeted stakeholder consultations, the Commission consulted stakeholders during virtual visits to each of the 27 Member States. Some of the stakeholders who contributed to the targeted stakeholder input were also consulted during the virtual country visits, which allowed for further discussions on their written contributions. 105 ANDREJ BELEŠ 6.1. GENERAL DEVELOPMENT OF THE RULE OF LAW (HORIZONTAL) A number of stakeholders provided information on general trends in the European Union in relation to the rule of law – across the 27 Member States of the European Union. In particular, these contributions came from European networks, EU agencies and other international organisations, and civil society umbrella organisations, including the Fundamental Rights Agency, the Council of Europe, the UN Regional Human Rights Office for Europe, the European Network of Councils for the Judiciary, the Council of Bars and Law Societies of Europe, the European Broadcasting Union, the European Federation of Journalists, the European Network of National Human Rights Institutions, the European Implementation Network, the Union of Civil Liberties for Europe, and the European Civil Society (European Commission, 2023c). The views expressed by stakeholders focus on positive and negative general horizontal developments or trends concerning the rule of law in EU Member States. Country-specific information is also expressed, covering all 27 Member States. In particular, these contributions relate to the four pillars of the Rule of Law Report 2023 (as well as the Rule of Law Reports of previous years) as described in the previous text: the judicial system and the issue of the independence of the judiciary, the fight against corruption, pluralism and media freedom, and other institutional issues related to the checks and balances of the various branches of government in the Member States. All four of these areas are cross-cutting in terms of respect for fundamental rights and freedoms. The value of the rule of law under Article 2 TEU is not a "constructive" or positive norm that would prescribe in a strict and uniform way how the basic pillars of the rule of law should be regulated in the individual Member States (e.g. whether there should be external control of the judiciary through an independent judicial council, or what model of VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS prosecution is optimal). The value of the rule of law is a principle that primarily functions as a system of "red lines" that negatively prescribe (also according to the judgments of the Court of Justice), what settings and changes to the legal order, public institutions, and interference with the independence of the judiciary are unacceptable in specific cases (see von Bogdandy, 2021, p. 91). Examining the four areas above on the basis of stakeholder contributions allows for informed estimates to be made as to whether there is a risk of "red lines" being crossed, i.e. the value of the rule of law being violated, in some Member States. The first area examined is the judicial system, with particular reference to the independence of the judiciary in the Member States. Stakeholders generally across Member States found that measures were being taken to improve the quality and efficiency of the judicial system. The criteria for judicial independence are clearly set out in the jurisprudence of both the Court of Justice of the European Union and the European Court of Human Rights (ECtHR).97 However, in assessing the functioning of the judicial system, stakeholders stress the need for the judicial system to have access to sufficient financial resources to function properly. According to stakeholders, the lack of funds for the proper functioning of the judicial system is often reflected in the excessive length of court proceedings. The requirement that a civil or criminal case be heard by a court within a reasonable time stems from the principle that justice delayed is justice denied, as excessive delay in a court's decision may be considered an interference with the right of access to a court under Article 6 of the Convention 98 (Kmec, 2012). As the ECtHR has 97 From the recent ECtHR case-law, see in particular the judgment of Xero Flor w Polsce sp. Z o. o. v. Poland of 7 May 2021. 98 Judgment of the ECtHR in Vassilios Athanasiou and others v. Greece, 21.12.2010, no. 50973/08, § 52. 107 ANDREJ BELEŠ emphasized in its jurisprudence, the specific design of the judicial system and its material provision is a matter for each State Party, but a State cannot plead overburdening of the judicial system in violation of the right to a fair trial in terms of unreasonable length of court proceedings.99 While the State is not responsible for temporary and short-term overburdening of the courts, if such a situation prolongs and becomes a structural issue, the State cannot delay taking effective measures (e.g. increasing funding for the court system) to ensure the speed of proceedings.100 Stakeholders also cite as a problematic aspect the flawed systems for appointing presidents of courts, which can undermine the independence of the judiciary. The unrestricted ability of the Minister of Justice to appoint and remove the Chief Justice constitutes undue interference by the executive in the administration of the judiciary. Stakeholders, on the other hand, highlight the positive developments associated with the digitisation of Member States' court systems, the maintenance of electronic files, and the provision of e-filing. This is provided that digitisation is implemented with adequate safeguards against unauthorised access to digital data, unauthorised alteration, corruption or deletion. On the topic of judicial independence, the importance of consultation and involvement of judicial councils in changes concerning the judiciary is stressed (European Commission, 2023c). The creation of judicial councils remains a problematic issue in terms of the influence of the executive and the legislative powers on their composition. However, the openness of the judiciary and the 99 See, mutatis mutandis, ECtHR Buchholz v. Germany, judgment of 6.5.1981, no. 7759/77, § 49. 100 Judgment of the ECtHR in Zimmermann and Steiner v. Switzerland, 13.7.1983, no. 8737/79, § 29. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS requirement for at least partial external control require the involvement of external bodies to an appropriate extent so that the judicial councils are not created exclusively from within by the judges themselves. In this context, the following text will look in more detail at the existence of a judicial council in Slovakia (or the absence of a judicial council in the Czech Republic) and the power of the parliament, the president and the government to remove their representative in the judicial council 'at any time'. The second important area is the examination of the effectiveness of anti-corruption instruments. In terms of assessing the legal and institutional instruments to fight corruption, a number of stakeholders highlight the problem that in several Member States the rules to ensure integrity in the exercise of public office, as well as the laws against conflicts of interest of public officials, are still insufficient. Stakeholders also raise the problem of insufficient regulation of lobbying (European Commission, 2023c). Lobbying as a form of advocacy of sectoral or private interests in the decision-making of public institutions must involve only techniques of persuasion of public officials on the basis of the dissemination of expertise – without mixing it with corrupt practices. Lobbying and corruption both seek to advance interests, but the aim of lobbying is to change the institutional framework, whereas corruption has no such structural objectives. Corrupt activity exclusively accepts the institutional framework; it only wants to illegitimately achieve individual adaptation of the rules, i.e. an ad hoc exception (Priddat, 2010). With corruption – in contrast to lobbying – instead of motivating the legislator to change, the individual contractors are motivated to question the interpretation of the law, even to violate it.101 Lobbying, as 101 Corruption – compared to lobbying – comes at a lower cost, but this is offset by the high risk of legal (criminal) sanction. The motive therefore remains the same, it is only 109 ANDREJ BELEŠ a strictly limited legal activity that has a structural impact on institutions, therefore requires strict rules of communication between lobbyists and public officials, which is absent in some Member States. Although it is generally emphasised that under the rule of law, the investigation and prosecution of many important corruption cases is a priority, law enforcement authorities in many Member States whose remit includes the fight against corruption still face difficulties, in particular when it comes to investigating and prosecuting high-level corruption. The independence and resilience of law enforcement authorities to political influence therefore remains a problematic aspect. This refers in particular to the institutional anchoring of the prosecutor's office as a public prosecuting authority. In the conditions of the Member States, there is, in principle, a variation in the basic models of the position of the prosecution service in the law enforcement system: on the one hand, as a separate (or even independent) institution alongside the legislative, executive and judicial authorities, or as part of the executive branch with a link to the Ministry of Justice. Alongside this, the strength of the Prosecutor General's position in the prosecution system and his possibilities to intervene in individual criminal proceedings still need to be taken into account (see Strémy et al., 2021). In any case, the above-mentioned models have their shortcomings, as they do not ensure the full resilience of the prosecuting authorities to the use of means that are either approved or disapproved by the legal system that differs. However, we believe that the assumption that corrupt practices are preferable to lobbying only because of lower costs is not accurate. Corrupt acts are often motivated by the acquisition of a certain one-off (or possibly a one-off) profit. The perpetrator of corruption recognises that a general change in the rules would not be socially beneficial and ultimately disadvantageous or harmful to the perpetrator, e.g. as a result of the erosion or weakening of legal certainty and equality before the law. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS political influences. This issue – in the context of the Slovak and Czech legal order – will be discussed in more detail in the following text. Steps in the right direction have been noted by stakeholders in the area of transparency in the exercise of public authority and the use of public funds (European Commission, 2023c). Freedom and pluralism of the media is not only the realisation of freedom of expression and the right to impart and receive information as a fundamental right (Article 10 of the Convention), but it is also an essential prerequisite for a functional democracy (with elections that are not only free but also fair) as well as for a substantive rule of law, as the media provide external scrutiny of the functioning of the rule of law and inform the population about its state of affairs, as a source of power. Regarding media freedom and pluralism, stakeholders have expressed increasing concerns about freedom of expression, protection of the right to information and protection of journalists for the European Commission's 2023 monitoring exercise. In particular, stakeholder contributions mention attempts to exert political and economic pressure and control over media operators, as well as persistent concerns about the safety of journalists – in light of the experience of killings of journalists (Slovakia, Malta). Stakeholders further cite persistent problems related to media independence and transparency of media funding and ownership, as powerful financial groups have in several cases achieved the elimination of critical media outlets in the face of links between oligarchic structures and political leaders. According to stakeholders, there has also been a further increase in the use of strategic lawsuits against public participation (SLAPPs). The European Commission responded to the rise in the incidence of 111 ANDREJ BELEŠ strategic lawsuits by proposing a directive on protection against SLAPP suits in spring 2022.102 In addition to these three areas, a number of other legal and institutional issues need to be addressed (also in the view of stakeholders). As regards other institutional issues related to checks and balances between public authorities, stakeholders point out that the lack of a formal framework for stakeholder consultation or its lack of application in practice in the legislative process remains problematic in several Member States (European Commission, 2023c). These include the issue of the breadth of involvement of stakeholders in the interministerial comment procedure, as well as the problem of the 'abuse' of the fast-track or shortened legislative procedure (the so-called “legislative emergency”) without a comment procedure. We will address this issue in more detail by examining three selected problems which are highlighted by the European Commission in the context of the rule of law and which are also analysed by stakeholders in their comments. Stakeholders also cite persistent challenges for CSOs in some Member States, e.g. in relation to administrative procedures or funding. These problems may relate to administrative obligations in relation to foreign funding of CSOs or restrictions on domestic funding (e.g. limiting tax assimilation). In this context, the Fundamental Rights Agency highlights the creation of obstacles for NGOs in particular in some areas: "in some Member States pressure continues to be exercised on certain CSOs, notably among those working on issues such as migration and refugee support, environmental protection, women's rights, LGTBIQ rights and anti-racism, as well as - in a few EU countries - child rights." Stakeholders further express concern about the non-implementation of judgments of 102 Proposal for a directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings ("Strategic lawsuits against public participation") COM/2022/177 final. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS the ECtHR: "notably Bulgaria, Romania, Italy, Greece, Hungary and Poland, show a poor track-record in quickly and fully implementing such judgments." (European Union Agency for Fundamental Rights, 2023, p. 5 and 3). As a positive development, the contributions highlight that public awareness of the rule of law and its importance for society is growing in many Member States. 6.2. STAKEHOLDERS' VIEWS ON THE STATE OF THE RULE OF LAW IN THE SLOVAK REPUBLIC AND THE CZECH REPUBLIC AND AN ANALYSIS OF THREE SELECTED RULE OF LAW ISSUES The comparison of the situation of the rule of law in the two Member States and the views of the parties on this situation is based on the fact that Slovakia and the Czech Republic share a common history of legal development and their current cultural and linguistic closeness is undeniable. Although the legislative institutions of the two countries are inspired by each other due to this closeness and both legal systems are influenced by EU law, the development of the rule of law in the two countries differs in several respects. The specific situation of the state of the rule of law – in the context of the European Commission's State of the Rule of Law Report 2023 – in both the Czech Republic and Slovakia needs to be examined in the same way as in relation to the general situation in the European Union in the context of four basic areas: 1) the judiciary and the issue of its efficiency and independence, i. in the context of the implementation of the reform of the so-called judicial map in Slovakia, the establishment of new administrative courts, the supreme body of which is the Supreme Administrative Court; ii. another problem is the independence of the members of the Judicial Council of the Slovak Republic in terms of 113 ANDREJ BELEŠ the possibility to recall them at any time and for any reason; iii. In the Czech Republic, some progress has been made in promoting the transparency and independence of the judiciary, a uniform selection procedure for the appointment of judges is in place and the adoption of the reform of the Public Prosecutor's Office is under preparation; iv. In Slovakia, there are persistent concerns about threats to the independence of judicial decision-making in holding judges accountable for the crime of “bending the law”; v. The issue of the administration of justice and law enforcement in Slovakia is also related to the problem of the broad authority of the Prosecutor General to intervene in any criminal proceedings by means of an extraordinary remedy, by which he is entitled to overturn decisions at the stage of pre-trial proceedings; vi. In both countries, progress in the digitisation of the judiciary and the introduction of an electronic filing service and the low financial remuneration of court administrators remain a problem; vii. Overall, the efficiency of the Czech judiciary is assessed as good, but in relation to the Slovak judiciary such an assessment is absent; 2) the fight against corruption, where the issues of concern are i. the absence of regulation of lobbying in the Slovak legal order; in terms of Czech law, the Lobbying Act is in the legislative process; ii. In Slovakia, there has been a slight strengthening of the instruments against conflicts of interest and in the area of asset declarations; in the Czech Republic, the rules on asset declarations have been revised and entered into VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS force and a draft law on conflicts of interest is in the legislative process; iii. The Slovak Office for the Protection of Whistleblowers of Anti-Social Activities is operational and conducts awareness campaigns to motivate whistleblowing; iv. The Czech Whistleblower Protection Act (which transposes the Directive) was only adopted in the first half of 2023 and its potential application issues are still under review; v. The problem of coordination and mutual cooperation between different law enforcement bodies in Slovakia (the General Prosecutor's Office, the Special Prosecutor's Office, the National Criminal Agency, the Slovak Information Service), with allegations of politically motivated decisions in corruption cases being a problem of cooperation; vi. In the Czech Republic, cases of corruption at the highest levels also attract attention, with some proceedings lasting excessively long, or political influences in these cases are also a cause for concern; in the Slovak Republic, a number of former high-ranking civil servants have been indicted and eventually convicted; vii. The Czech legal framework for political party funding is also being reformed; 3) preserving media pluralism and independence from political influences, with the following being essential issues in this area: i. The institutional and financial independence of the Slovak Media Services Council, whose remit includes cooperation with online content sharing platforms; in the Czech Republic, the independence of the media regulator is expected to be strengthened in the framework of the amendment to the Broadcasting Act; 115 ANDREJ BELEŠ ii. Transparency of media ownership and legal mechanisms to ensure it, iii. The independence of Slovak public service media and the issue of their sustainable financing; also changes to the laws on Czech public service media should strengthen the independence of the supervisory commissions and thus the overall independence of radio and television as public service media; iv. Specification of obliged persons under the Slovak Act on free access to information; also in the case of the Czech Act on free access to information there have been changes in access to information held by public authorities; v. Physical safety and working environment of journalists, or reform of the criminal offence of defamation, 4) other institutional issues related to the checks and balances of the branches of government in the rule of law, of which the following issues are of particular concern: i. Over-application or even abuse of the adoption of laws in the abbreviated legislative procedure both in Slovakia and the Czech Republic, or the amendment of laws through a draft amendment of an unrelated law (so-called “legislative addenda”), which limits the possibilities of involving stakeholders in the legislative process, ii. The adoption of a national preventive mechanism in the Slovak legal order, which strengthens the supervisory powers of the Public Defender of Rights; in the Czech legal order, an amendment is being prepared to entrust the Public Defender of Rights with the function of a national human rights institution; iii. Legal conditions for the functioning of civil society and the framework for its financing in Slovakia; VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS iv. v. The issue of transparency in policy-making and the involvement of civil society actors in the Czech Republic; In particular in the conditions of the Slovak Republic, the position of organisations promoting the rights of LGBTIQ persons, or organisations promoting gender equality; in the Czech Republic, a "challenging environment" is also reported by stakeholders on this issue, or a review of the financial framework for civil society organisations is underway. In the preceding text, we have given a general and basic overview of current issues and problems concerning the state of the rule of law in the Slovak Republic and the Czech Republic. These issues and problems have been analysed by the Commission in its report and have also been pointed out by the stakeholders. In the following, we will analyse some selected topics in more depth, in the context of the views of the parties, court decisions, as well as views in the professional and scientific literature. 1) Transparency and independence of the judiciary: the function of the Judicial Council, the independence of its members, their appointment and removal. The Judicial Council of the Slovak Republic is a constitutional body of judicial legitimacy (under Article 141(1) Constitution of the Slovak Republic). The Judicial Council ensures external democratic control by other branches of public power (three members nominated by the Parliament, three nominated by the Government and three nominated by the President) as well as internal control of the judiciary, as half of the members of the Judicial Council are directly elected by judges in several constituencies. 117 ANDREJ BELEŠ In addition to providing scrutiny (oversight), its remit also includes determining judicial eligibility, proposing the filling of judicial posts (proposals for appointment and removal) and other powers conferred by the Constitution103 and the law (in particular, powers relating to the administration of the courts, the adoption of regulations, etc.).104 The President of the Judicial Council is empowered to bring disciplinary proceedings against a judge.105 The disciplinary liability of judges is subsequently decided by the Disciplinary Chamber of the Supreme Administrative Court of the Slovak Republic. Thus, the Judicial Council does not decide directly on disciplinary liability, but its President is positioned as the initiating authority of liability. The Judicial Council, as an independent constitutional body, is intended to "depoliticise" the control and administration of the judiciary. Thus, independence is to be an essential element: 'For the exercise of the Judicial Council's core competences – deciding on the career progression of judges and on the disciplinary responsibility of judges - institutional independence is a conditio sine qua non. Only an independent Judicial Council is capable of objectively and impartially assessing whether a judge has acted in the exercise of judicial power in a manner for which he or she should reasonably be held liable to disciplinary action." (Drgonec, 2016) The Slovak Constitutional Court has provided a partial characterization of the constitutional status of the judicial council in several decisions, but it has taken a more comprehensive approach to this issue only in the ruling PL. ÚS 2/2012, when the Court characterized the Judicial Council as "a special independent constitutional body of the judicial power guaranteeing, above all, the independent status of the judicial power and 103 Art. 141a of the Constitution of the Slovak Republic (No. 460/1992 Coll.). Provisions of Sections 3a to 4 of Act No. 185/2002 Coll. on the Judicial Council of the Slovak Republic and on Amendments and Supplements to Certain Acts. 105 Provision of § 15 of Act No. 432/2021 Coll. on the Disciplinary Rules of the Supreme Administrative Court of the Slovak Republic and on Amendments and Supplements to Certain Acts (Disciplinary Court Rules). 104 VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS judicial legitimacy, responsible for the operation of the judiciary, the administration of the judicial power and the judiciary, as well as the transparency of the judiciary, and thus should be a full partner of the legislative and executive power".106 However, the elimination of direct political influences on the administration of the judiciary through the sharing of the creation mechanism and the requirement of independence alone do not mean that the Slovak Judicial Council is a body of judicial self-government. In fact, only half of the members of the Judicial Council are created in a self-governing manner. In the Czech Republic – in contrast to the above legal situation in Slovakia – an institution with a similar constitutional status, creation and competences has not been established. The establishment of a 'Supreme Council of the Judiciary', which could be created exclusively as an umbrella body of judicial self-government or as a body reflecting the division of powers with the involvement of the legislative and executive powers in the external control of the judiciary, has been the subject of expert debate for a long time. An amendment to the Constitution of the Czech Republic was submitted to the Chamber of Deputies of the Parliament of the Czech Republic in 2000, which was to introduce the Supreme Council of the Judiciary as a body that oversees the independence of courts and judges (Parliament of the Czech Republic, 2000). The basic competence of this council was to be the nomination of candidates for appointment to the position of judges as well as to the leadership of the Supreme Court. In terms of the creation of the council, half of the members were to be judges and the other half were to be created by the lower chamber (the 106 Ruling of the Constitutional Court of the Slovak Republic of 18 November 2015, Case No. PL. ÚS 2/2012. 119 ANDREJ BELEŠ Chamber of Deputies) and the upper chamber (the Senate) of the Czech Parliament. This means that external control of the judiciary was to be provided by persons nominated to the Council by the legislature. Involvement of the executive (as under the Slovak legislation) was not envisaged. Legislative changes that would have introduced a Supreme Council of the Judiciary were later supported by the Czech branch of Transparency International, but were not implemented. In the course of its existence since 2001, the Judicial Council of the Slovak Republic has been subject to a number of changes in terms of its creation - in particular, the cumulative function of the President of the Supreme Court and the President of the Judicial Council has been abolished, or the regional principle in the election of members of the Judicial Council by judges has been introduced – as well as competences – e.g. in connection with the reform of the judicial map in Slovakia, it is only possible to transfer a judge between the workplaces of the same court if it is necessary for the proper operation of the court, and on the basis of a proposal of the President of the court, which must be approved by the Judicial Council.107 Although stakeholders (e.g. the Association of Slovak Judges) have pointed to the strong managerial power of the court president in this issue (European Commission, 2023b), it is the Judicial Council, as an independent body of judicial legitimacy, which is supposed to prevent e.g. bullying decisions of court presidents on the transfer of judges between locations. Both the European Commission and stakeholders (the Public Defender of Rights, the Association of Judges of Slovakia, the Open Justice Initiative, the Judicial Council) agree that one serious shortcoming remains, which concerns the composition of the Judicial Council by the Parliament, the Government and the President, i.e. the institutions that ensure external control of the judiciary. Neither the Constitution nor the 107 Act No. 398/2022 Coll. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS law provides for the conditions for the removal of these members of the Judicial Council. This applies in particular to situations where there are major political changes following parliamentary elections, the establishment of a new government or the election of a new President, and the new political power has an interest in the immediate removal of the members of the Judicial Council who were nominated by the previous political power before the expiry of their term of office, which, according to the Constitution, is supposed to last five years.108 The fundamental problem is therefore to address the question of how to ensure the resilience of the creation mechanism in relation to half of the members of the Judicial Council to the imposition of direct and immediate political influence by the new political power nominating its 'politically obedient' people to the Judicial Council. The Slovak Constitutional Court has also addressed the above issue and in 2018 issued a unifying opinion PLz. ÚS 2/2018, according to which "a member of the Judicial Council of the Slovak Republic cannot be dismissed during his 5-year term of office by the body that nominated him for this post".109 The Constitutional Court adopted this opinion primarily with a view to ensuring the right of members to have access to elected and other public offices.110 In the opinion of the Constitutional Court, part of the content of the right of access to elected and other public offices is also the right to undisturbed exercise of the office of a member of the Judicial Council, which includes the right to protection against arbitrary removal from that office. Thus, it is protection against arbitrary deprivation of office by the State. Since the legislation at the time when the Constitutional Court issued its opinion regulated only the duration of membership of 108 Art. 141a (5) of the Constitution of the Slovak Republic. Resolution of the Constitutional Court of the Slovak Republic of 19 September 2018, Case No. PLz. ÚS 2/2018. 110 Art. 30(1) and (4) of the Constitution of the Slovak Republic. 109 121 ANDREJ BELEŠ the Judicial Council, which was five years, and not the question of removal, the President, the Parliament and the Government acted arbitrarily, and therefore unlawfully, in the premature removal of their nominees, in breach of the principle of the legality of the exercise of public authority under Article 2(2) of the Constitution of the Slovak Republic, i.e. the obligation of public authorities to act only on the basis of the law and within its limits. The second line of argumentation of the Constitutional Court's decision concerned the independent status of the Judicial Council. In the abovementioned unifying opinion, the Full Court of the Constitutional Court shared the view that the Judicial Council is not in any hierarchical position in relation to the President, the Parliament and the Government (despite the fact that these organs of the Court partly create the Council) and therefore the Judicial Council and all its members do not necessarily have to enjoy the "political confidence" of these institutions during the entire duration of their mandate, nor do the members of the Judicial Council have to observe "political discipline" towards these institutions. These considerations are based on the attribute of independence of the Judicial Council and its members. In the opinion of the Constitutional Court, the meaning of political trust towards a nominated member of the Judicial Council is "limited only to the stage of deciding on the appointment of a person as a member of the Judicial Council, but no longer to the actual performance of the duties of a member of the Judicial Council." The President, the Parliament and the Government undoubtedly nominate to the Judicial Council personalities in whom they have confidence – in terms of their expertise, worldview and other attributes. On the other hand, members of the Judicial Council are supposed to act independently, they are not merely executors of the will of the state body that nominated them; that state body cannot require a member of the Judicial Council to follow instructions and orders, on pain of dismissal on grounds of loss of VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS confidence. The implementation of a full term of office of 5 years, despite the four-year electoral cycles (of the Parliament and, consequently, of the Government), is intended to contribute to the stability of the development of the judiciary and to ensure the versatility of views on the Judicial Council. That unifying opinion has been criticised from several positions, and has even been labelled illegitimate and arbitrary, with the Constitutional Court exceeding its powers (Mazák, 2020). The above-mentioned opinion on the impossibility to dismiss the members of the Judicial Council may contradict the power of the Parliament (Article 86), the President (Article 102) and the Government (Article 119 of the Constitution of the Slovak Republic) to elect and dismiss, or appoint and dismiss the members of the Judicial Council. Similarly, the two judges of the Constitutional Court who expressed the dissenting opinion111 against the unifying opinion pointed to the then valid and effective wording of the legislation on the creation of the Judicial Council under Article 141 of the Constitution, according to which the judges, the Parliament, the President and the Government not only elect (appoint), but also dismiss the individual members of the Judicial Council. According to the dissenting judges, this power was taken away by the unifying opinion, which is contrary to democracy and the rule of law, since the Constitutional Court does not have the power to derogate from the Constitution or its provisions. Also, in their opinion, the argument that the impossibility to dismiss the members of the Judicial Council results from the absence of precise conditions under the law does not stand up. The passivity of the legislature would lead to 111 Dissenting opinion of Judge Ladislav Orosz and Judge Marianna Mochnáčová on the resolution of the plenary of the Constitutional Court of the Slovak Republic, no. k. PLz. ÚS 2/2018-18 of 19 September 2018. 123 ANDREJ BELEŠ a negation of the will of the constitution-making power to dismiss members of the Judicial Council. Further criticism was addressed to the above-mentioned opinion primarily from the position of democratic control of the judiciary. Democratically constituted institutions such as the Parliament and the President (both with direct democratic legitimacy from the source of power) and the Government (with derived democratic legitimacy) are democratically entitled to exercise their power of control over the judiciary through representatives on the Judicial Council, in accordance with the new political reality. From this perspective, it is not permissible for one political power to 'concrete' its nominees, whose functions are to last even after the loss of democratic legitimacy. According to Mazák, the Constitutional Court's opinion in question did not even need to be respected due to the illegitimacy of the opinion, because "the country is ruled by the one who won the elections and not by the one who in 2018 managed to convince the majority of the full Constitutional Court to 'abrogate' in his favour a part of the Constitution with a single purpose. To retain control of the Judicial Council and the judiciary even after losing power." (Mazak, 2020) The creator of the Slovak Constitution finally responded to the above legal situation in 2020 by amending the Constitution of the Slovak Republic, which regulated the constitutional status, creation and competences of the Judicial Council in a new way (Articles 141a and 141b of the Constitution).112 It was only with this amendment that it was constitutionally defined as a body of judicial legitimacy. The drafters of the amendment to the Constitution considered the definition of the Judicial Council as an independent body (PL. ÚS 2/2012) to be problematic, which, in their view, wrongly led to the conclusion that the 112 Constitutional Act No. 422/2020 Coll., amending and supplementing the Constitution of the Slovak Republic No. 460/1992 Coll., as amended. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS members of the Judicial Council are independent and irrevocable according to the unifying opinion (PLz. ÚS 2/2018). The issue of dismissal of a member of the Judicial Council during the duration of his or her mandate was explicitly addressed by this constitutional amendment. According to the last sentence of Article 141a (5), "the President, the Vice-President and a member of the Judicial Council of the Slovak Republic may be dismissed at any time before the expiry of their term of office." The formulation of the power to dismiss a member of the Judicial Council "at any time" means that a member of the Judicial Council may be dismissed by the body that elected or appointed him or her at any time during the course of the 5-year term of office of the member of the Judicial Council. In the opinion of the authors of the constitutional amendment in question, which is set out in the explanatory report, the word 'at any time' does not have a purely temporal meaning (Explanatory Report, 2020). However, the authors of the amendment in question intended to give a material meaning to the term "at any time" in addition to its temporal meaning in terms of the grounds for removal of a member of the Judicial Council. According to the Explanatory Report to the constitutional amendment, the word "at any time" implicitly provides that the competent authority may remove a member of the Judicial Council without assigning any reason. Thus, according to the authors of the constitutional amendment, the decision to remove a member of the Judicial Council "at any time" does not need to include reasons. This means that it is sufficient that the authority has decided to do so at some point during the 5-year term of office, whatever the reasons for the decision, even if withheld. Just for the sake of completeness, we would like to remind you that the interpretation of a provision of a legal regulation, which is contained in the explanatory memorandum, is one of the forms of authentic interpretation offered to legal practice directly by the author of the 125 ANDREJ BELEŠ regulation. However, such a form of authentic interpretation (which is not stated directly in the legislative provision but is found only in the explanatory memorandum) is not legally binding. On the other hand, an authentic interpretation has a high argumentative force and, from the point of view of the requirement of legal certainty, it is always necessary for the legal practice to justify in a sufficient manner why it has decided to deviate from that authentic interpretation (e.g. on the basis of taking into account constitutional principles, i.e. by applying a systematic interpretation). The authors of the amendment to the Constitution apparently decided to adopt an expansive interpretation of the word "at any time", i.e. an interpretation beyond the ordinary meaning of this word, and thus, in addition to the meaning of "at any time", they also attributed to it the meaning of "for any reason". In this case, the interpretation of the powers of public authorities is at issue and we find the use of an expansive interpretation problematic. An essential attribute is the principle of the legality of the exercise of public authority (Article 2(2) of the Constitution of the Slovak Republic), i.e. the exercise of public authority only on the basis of the law and within the limits of the law. Not beyond the explicit wording of the law. If the authors of the amendment to the Constitution wanted to explicitly state that an appeal may be made for any reason, they should have stated this directly in the text of the amended provision of the Constitution and not just used the word "at any time". The power of the President, the Parliament and the Government to remove the members of the Judicial Council who have been nominated there by their decision (election) "at any time", not only in terms of time but also in terms of substance, i.e. for any reason or without giving any reason, reduces the resilience of the composition of the Judicial Council to political influences and weakens its position as a constitutional organ of judicial legitimacy which should not be subject VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS - given its strong interference against the independent judiciary – to direct political influences. Thus, although the Judicial Council is not explicitly defined as independent in the Constitution, the requirement of resistance to direct political influence implicitly assumes a certain degree of independence. The issue of the power to dismiss a member of the Judicial Council – "at any time" and for any reason or for no reason at all – is proving to be relevant even after the fundamental political changes in 2023, when the new government (created after the parliamentary elections) practically immediately dismissed members of the Judicial Council who had been nominated by the previous government and who did not enjoy the "political confidence" of the new government. From the point of view of the dismissed members of the Judicial Council, who of course adhere to the content of the 2018 Unification Opinion, the above decision appears to be undoubtedly arbitrary (Petrovič, 2023). The Slovak Constitutional Court, as one of stakeholders, provided the European Commission with an opinion on the issue. The Constitutional Court referred to its decision (PL. ÚS 12/2022) that it was not entitled to assess the compatibility of the power to dismiss a member of the Judicial Council "at any time" with other provisions of the Constitution: "The Constitutional Court reasoned that the above-mentioned constitutional provision did not belong in the substantial core of the Constitution, so the Constitutional Court had no power to review that provision. This conclusion stemmed from the Constitutional Court's caselaw, pursuant to which the Constitutional Court may review constitutional provisions only if they concern the substantial core of the Constitution, i. e. the crucial principles and values of the Constitution." Also, the Slovak Public Defender of Rights (Ombudsman) as stakeholder has given an opinion that no substantial progress has been 127 ANDREJ BELEŠ made in the problem of protection of members of the Judicial Council against arbitrary dismissal. Given the change in the political situation and the immediate dismissal of members of the Judicial Council without giving any reason, even the original opponents of the unifying position, who supported the amendment of the 2020 Constitution and the introduction of the power to dismiss a member of the Judicial Council "at any time", now take the opposite view, i.e., that this is an arbitrary decision that harms the constitutional position of the Judicial Council. Mazák comments on this (Mazák, 2023) that the principle of the substantive rule of law as well as the right to good governance derive from the fundamental right of the individual to adequate justification of a decision that has the effect of interfering with his or her legal position. Thus, the removed member has the right to the statement of reasons as well as the related right to be heard, that is, to be heard on the grounds for removal from the Judicial Council. Although Mazák considered the unifying opinion on the impossibility of removing a member of the Judicial Council illegitimate in 2020, in 2023 he was of the opinion that the constitutional amendment on the possibility of removing a member of the Judicial Council "at any time" should be confronted with this opinion. Procházka ironically commented (2023) on this change in Mazák's position by saying that this is a situation where "better people" guard the integrity (i.e., the president of the judicial council guards the integrity of judges), but always only someone else's integrity, not their own integrity. The above-mentioned view that the term "at any time" must not create room for arbitrary immediate removal of members of the constitutional body of judicial legitimacy following a change in the political situation must be unequivocally agreed with, and finally, the European Commission also accuses the Slovak Republic of a lack of independence of the members of the Judicial Council due to the absence of clear VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS conditions for the duration of their mandate and the limitation of the possibility of their arbitrary removal. As mentioned earlier in this sub-chapter, the Czech Republic does not have a Judicial Council or Supreme Council of the Judiciary as an independent constitutional body, therefore the administration of the judiciary falls only within the competence of the Ministry of Justice, with guarantees against undue interference of the executive power in the judiciary. Therefore, the European Commission, as well as the stakeholders, when assessing the state of judicial independence in the Czech Republic, focuses on some aspects of the corresponding reduction of the influence of the executive on the judiciary. This concerns (European Commission 2023a): • • • new legislation113 on selection procedures for the appointment of judges, which is intended to be more transparent and reliable; the selection committees are composed of five members and the majority of them are judges; this change has so far been positively evaluated by114 stakeholders, although it places greater demands on resources; preparation of new legislation on disciplinary proceedings against judges; disciplinary proceedings should now be twostage, i.e. with the possibility of appealing against the decision of the disciplinary court, thus taking into account European standards; the preparation of the reform of the state prosecutor's office; the proposal changes the method of appointment and dismissal of district, regional and chief prosecutors as well as 113 Act No. 218/2021 Coll., amending Act No. 6/2002 Coll., on Courts, Judges, Judges Adjudicators and the State Administration of Courts and on Amendments to Certain Other Acts. 114 Stakeholders: Reconstruction of the State, Networks for the Protection of Democracy, CCBE, Union for Civil Liberties in Europe. 129 ANDREJ BELEŠ the conditions for the appointment and dismissal of the Supreme State Prosecutor; the procedure for the dismissal of the Supreme State Prosecutor by the Government on the proposal of the Minister of Justice remains unchanged, but two alternative material conditions for dismissal will be added to serve as a reinforcement of the safeguards against inappropriate interference by the Minister and the Government against the Supreme State Prosecutor: o the Chief State Prosecutor has fundamentally undermined confidence in the proper functioning of the Chief State Prosecutor or the prosecution system, in particular confidence in the lawfulness of their actions or in their impartiality or professionalism, specifically by culpable gross misconduct or gross misconduct, o or the Prosecutor General has substantially undermined the dignity and respectability of the prosecutor's office. The above-mentioned issues are also the subject of debate and examination by stakeholders in the context of the rule of law in Slovakia: the constitutional and de facto establishment of the Supreme Administrative Court of the Slovak Republic in 2021 led to a fundamental reform of disciplinary proceedings against judges (and the two-stage procedure is applied in cases of dismissal of a judge). There has been also a long-standing discussion about the separated position of the Slovak prosecutor's office within the constitutional division of powers, so that this law protection body is not subject to undue external pressure from other branches of power, but on the other hand, to ensure effective external control of the prosecutor's office, i.e., that the prosecutor's office is not an "untouchable fortress", but is subject to adequate and appropriate democratic control. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS 2) Concentration of power in the Prosecutor General's jurisdiction: a possible interference with the independence of the judiciary and a threat to effective investigations The issue of external control of the prosecutor's office, which we have outlined above, is closely linked to the breadth of the Prosecutor General's powers and the risk of abuse of the Prosecutor General's extensive powers in the conditions of the Slovak legal order. This is an issue that has long been addressed by stakeholders and is also reflected by the European Commission in its reports on the state of the rule of law in Slovakia in 2022 and 2023. This relates in particular to the general power of the Prosecutor General to intervene in criminal proceedings conducted by hierarchically lowerranking prosecutors, through the power to overrule unlawful decisions of a police officer or prosecutor in preparatory proceedings on the basis of the provisions of § 363 et seq. of the Slovak Criminal Procedure Code, either to the detriment of the accused or also in favour of the accused. In favour of the accused is, in particular, the power of the Prosecutor General through this mechanism to cancel the formal charging order, with the consequence (if there is sufficient evidence to continue the prosecution against the person originally charged) that it is necessary to formally re-issue the charging order against the particular person and to repeat the taking of all evidence that was previously taken after the charge was brought. No further appeal is admissible against the decision of the Prosecutor General (as this power is considered to be an extraordinary remedy), nor is judicial review admissible as a form of external review of the activities of the Prosecutor General in Slovakia. The European Commission critically examines (European Commission 2022b, European Commission. 2023b) this legislation and the considerations and proposals for its amendment, including on the basis 131 ANDREJ BELEŠ of comments and experiences of stakeholders on its inadequate application, from two perspectives: • • 115 in terms of the independence of the judiciary, because o the prosecution (despite its independent constitutional position in the system of Slovak law) is, alongside the courts, the central element of the administration of criminal justice, especially in the preparatory proceedings (the prosecutor as dominus litis) and as the sole public prosecuting authority at the end of the preparatory proceedings (nemo iudex sine actore), o by exercising the Prosecutor General's power to quash the order of indictment, in cases of custodial prosecution of the accused, the decisions of the courts may be negated if the courts have found in the custodial decision-making process (in a two-step process when taking the accused into custody or also when extending custody) that there is a material condition for custody, i.e. that there are reasonable grounds for conducting criminal proceedings against the accused; in terms of the legal framework for effective corruption prosecutions, as the exercise of the Prosecutor General's power to quash charges resulted in the termination of investigations against a number of high-level defendants who were in custody on corruption charges, without the possibility of appeal against such quashing.115 In particular, the European Commission recalls (in line with the comments of the interested parties) the procedure of the Prosecutor General of 31 August 2021, pursuant to Article 363 et seq. of the Slovak Criminal Procedure Code, by which the corruption charges against the former Director of the Slovak Information Service (SIS) and four other persons in custody were dropped. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS As we analyse the individual partial problems examined and critically commented on by the European Commission on the basis of the comments of the stakeholders in more detail from a comparative point of view in the Slovak and Czech legislation, it is necessary to state that the Czech legislation does not contain an analogously broad power of the Supreme State Prosecutor to intervene in a centralised manner in any criminal proceedings in favour of the accused (i.e. to quash the charge). In Czech law, the Supreme State Prosecutor has exclusively cassation powers under Section 174a of the Czech Criminal Procedure Code.116 On the basis of a comparison of the extraordinary remedy within the competence of the Slovak Prosecutor General and the cassation power of the Czech Supreme State Prosecutor, we note that the legal arrangements are characterised by some common features, but also by a number of differences: a) the Slovak prosecutor general has a broader authority in that he is competent to decide against but also in favour of the accused (in particular the order of indictment), but the Czech Supreme State Prosecutor is entitled to decide only against the suspect or the accused (i.e. to overturn only decisions that are in favour of the suspect – the decision not to prosecute – or to discontinue the prosecution of the accused or to refer the case for trial as a misdemeanour); b) under Slovak law, the Prosecutor General acts: o on application by persons entitled to appeal (the accused, persons entitled to appeal in favour of the accused, an injured party against the accused or an interested party), the application may be directed either in favour of the accused or against him or her, 116 In the conditions of the legal order of the Czech Republic: the Act No. 141/1961 Coll., the Act on Criminal Court Proceedings (Criminal Procedure Code). 133 ANDREJ BELEŠ or on its own initiative (ex officio); the Czech legislation does not contain a motion authorisation and the Supreme State Prosecutor is authorised to act exclusively ex officio, therefore the procedure under § 174a of the Czech Criminal Procedure Code is not even an extraordinary remedy, but is exclusively a cassation power of the Supreme State Prosecutor (Šámal et al., 2013, p. 2238); also in relation to the Slovak legislation there are opinions that the procedure under § 363 et seq. Criminal Procedure Code is not a remedy, but only a cassation power of the Prosecutor General;117 c) the right of the accused or persons who could appeal on behalf of the accused to apply to the Prosecutor General for the setting aside of an order under section 363 et seq. Criminal Procedure Code, is practically mainly related to the fact that the Prosecutor General – unlike the Czech Supreme State Prosecutor – may also decide in favour of the accused, and is not (apart from the time limit) limited by anything (e.g. by the prior use of a proper remedy, i.e., namely by filing a complaint against the charging order); d) Czech legislation contains an exhaustive list of decisions that can be revoked in the above manner, which is supplemented by a negative definition that the authorisation does not apply to decisions of the European prosecutor and the European delegated prosecutor; Slovak legislation in the Criminal Procedure Code does not contain a precise list of decisions that the Prosecutor General is authorised to revoke: o 117 The Prosecutor General's authority to act ex officio is also cited as a reason why the procedure under § 363 et seq. Criminal Procedure Code is not an extraordinary remedy in the true sense of the word (despite the fact that it is formally classified as an extraordinary remedy in the Criminal Procedure Code), but in fact it is a cassation power of the Prosecutor General. See the order of the Supreme Court of 7 December 2021, Case No. 3 Tost 67/2021. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS the list of decisions is contained exclusively in the sublegislation (in the Prosecutor General's Order) o and this list is illustrative (the word "in particular" precedes the enumeration), so the Prosecutor General can potentially overrule other decisions not listed by this Order 118; o On the basis of the above two deficiencies, we are of the opinion that the Slovak legislation in this aspect is contrary to the principle of legal certainty, which is an immanent aspect of the legal validity of public authorities: legal certainty is associated with the binding nature of a final decision (which is the material aspect of legal validity) as well as with the immutability of a final decision (which is the formal aspect of legal validity; see Prusák, 2001, p. 292). e) The difference between the Slovak and Czech legislation also lies in the more generous time limit for the decision: the Slovak Prosecutor General is entitled to decide within six months of the decision becoming final (authorised persons may exercise their right to apply within three months of the decision becoming final), while the Czech Supreme State Prosecutor is entitled to annul an unlawful decision within three months of it becoming final; f) A common feature of both Slovak and Czech legislation is the fact that the decision of the Slovak Prosecutor General pursuant to § 363 et seq. Criminal Procedure Code and also against the decision of the Czech Supreme State Prosecutor pursuant to § o 118 Unlike Czech legislation, decisions of the European Public Prosecutor's Office are not explicitly exempted from the decision-making powers of the Prosecutor General pursuant to § 363 et seq. TP. See for more details Article 7(2) of the Order of the Prosecutor General of the Slovak Republic No. 14/2022 of 19 December 2022 on the procedure of prosecutors in criminal proceedings on extraordinary remedies. 135 ANDREJ BELEŠ 174a of the Criminal Procedure Code no appeal is admissible and such a decision is not entitled to review by a court. It should be added that the system of the state prosecutor's office in the Czech Republic is not so strictly hierarchical and structured, with broad powers of the Supreme State Prosecutor; in the Czech system, the influence of the executive power on the functioning of the state prosecutor's office is much stronger, especially the influence of the Minister of Justice and the government.119 The European Commission, together with stakeholders, has pointed out (European Commission, 2023a) that problems with prosecuting corruption at the highest levels persist in the Czech Republic as well. In addition to the excessive length of proceedings, there are also allegations of political influence by the Minister of Justice on the investigation of sensitive cases. Of particular concern are allegations of abuse of the Minister of Justice's power to obtain information from ongoing prosecutions.120 The political influence of the Minister of Justice should also be manifested in the sphere of judicial promotion as well as in cases of disciplinary liability (i.e. political influence is manifested not only in relation to the public prosecutor's office, but also 119 The personnel powers of the Minister of Justice and the Government are regulated in Sections 9 and 10 of Act No. 283/1993 Coll. on State Prosecution. The Supreme State Prosecutor is appointed and dismissed by the Government on the proposal of the Minister of Justice. The Minister of Justice appoints the chief prosecutors, regional prosecutors, district prosecutors. The Minister of Justice is also entitled to remove them from office if they "seriously violate the obligations arising from the performance of their duties". 120 Competence pursuant to Art. 13 of the above-mentioned Czech Act on State Prosecution. The Czech Minister of Justice, Pavel Blažek, used the procedure of this statutory provision to request information on a criminal prosecution concerning municipal flats in Brno. The prosecution involves several members of his political party from his time in Brno municipal politics. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS in relation to the courts121). These problems have been pointed out by several stakeholders in the Czech Republic (Reconstruction of the State, Judges' Union, Union of State Prosecutors, Transparency International). The Czech branch of Transparency International, as a stakeholder, specifically expressed concern that the prosecution system will not meet the standards of independence even after the implementation of the forthcoming reform: "Reform of the prosecution service, which would take into account European standards on the independence and autonomy of the prosecution is in preparation phase, yet we doubt that the new legislation will get completely along with the European standards. But as the law is not yet in the first reading, we still believe that there is still space to improve the proposal." The Czech Bar Association (also as a stakeholder) drew attention to the fact that the draft law is to introduce a 7-year term of office for the chief prosecutor but does not specify the conditions for his removal: "However, the proposal does not contain any clarification of the conditions for the removal of the chief prosecutor from office – contrary to the government's policy statement. Minister of Justice said that the coalition did not agree on the issue of appointment and dismissal and that it is expected the proposal to be further debated in the government and Parliament." The Slovak prosecutor's office thus has different problems than the Czech prosecutor's office in terms of the functioning of the rule of law: 121 E.g. the Minister's refusal to promote a judge to Deputy President of the Regional Court in Brno due to his previous decision-making in criminal cases (which is considered non-standard, as the Minister usually accepts the candidate proposed by the President of the Court); furthermore, the initiation of disciplinary proceedings against the Deputy President of the Municipal Court in Brno after the judge provided some information about a corruption case in Brno following a request for information under the law; or. the Minister's refusal to appoint the Chief State Prosecutor in Olomouc as the supervisor of the corruption case in question. 137 ANDREJ BELEŠ fewer risks in the sphere of political influence, but more centralisation and greater powers of the prosecutor general. As we have pointed out above, the overly broad powers of the Slovak Prosecutor General to centrally intervene in any criminal proceedings by quashing a decision (if he identifies illegality in his own legal opinion) have been criticised in terms of the institutional functioning of the rule of law by the European Commission as well as by stakeholders in Slovakia (in particular Via iuris, Stop Corruption, Transparency International Slovakia). The Slovak Public Defender of Rights, as a stakeholder for the European Commission, commented on the broad powers of the Prosecutor General that confidence in the criminal procedure is being undermined: "This ambiguity over the Prosecutor Generals competence coupled with the changing opinions of the politicians creates a big uncertainty and distrust over the criminal procedure in the eyes general public." Indeed, the scope of the power, the vagueness and lack of certainty of some of the legal features and the centralised application may lead to abuse of the power. From the point of view of upholding the rule of law, the competence in question may conflict with the following constitutional principles, values, and rights: 1) the principle of the independence of the judiciary, 2) the principle of division of powers in the state, 3) the right to an effective investigation, which is a procedural right of victims and survivors in criminal proceedings, 4) the inadmissibility of concentration of power in the competence of a single authority, which may consequently lead to arbitrariness in decision-making. Based on the proposal of the President of the Slovak Republic as well as of the members of the Slovak Parliament, the Constitutional Court assessed the compliance of the Prosecutor General's competence VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS pursuant to Art. 363 et seq. of the Code of Criminal Procedure with the Slovak Constitution. The Constitutional Court concluded (PL. ÚS 1/2022) that the legal regulation of the above-mentioned competence of the Prosecutor General is not unconstitutional. The applicants' objections related to the first three points above, which implicitly included a fourth issue (concentration of power and arbitrariness). We are of the opinion that the arguments of the Constitutional Court rejecting the above objections concerning possible unconstitutionality need to be critically analysed and reconsidered. Indeed, the critical views of the stakeholders and the European Commission regarding the broad powers of the Prosecutor General are clearly serious. Ad 1) The Prosecutor General may interfere with the independence of the judiciary by annulling an decision (order) issued by a police officer or a prosecutor, in particular if the court has taken the accused into custody and declared that the prosecution of the accused is justified (and this decision could also be confirmed by a court of second instance, which ruled on the complaint against the detention), while subsequently the Prosecutor General annuls the charging order in favour of the accused, thus effectively negating the fact that the courts considered the merits of the prosecution when making the detention decision. A similar intervention of the Prosecutor General can also happen to the detriment of the accused when the court does not take the accused into custody and finds that the prosecution is not justified, and subsequently the prosecutor discontinues the prosecution, while the Prosecutor General then reverses this order to discontinue the prosecution (thus de jure reversing the decision of the prosecutor, but de facto also negating the court's opinion that the prosecution is not justified). Although the Prosecutor General, by exercising his power of cassation and quashing the order of indictment made by a police officer or 139 ANDREJ BELEŠ prosecutor, effectively reverses the decision of the court, such a decision of the Prosecutor General is no longer reviewable by an independent and impartial court. In exercising his power, the Prosecutor General reaches the opposite conclusion to that reached by the courts as to the merits of the charge. According to critics of such decision-making, the Prosecutor General, by quashing the charges in these cases, even goes beyond his competence, thereby interfering with the decision-making of the courts. Consequently, the Prosecutor General's decision-making also interferes with the principle of legal certainty, as it calls into question the stability and binding nature of the courts' decisions and creates parallel legal opinions on the same criminal case (on the question of whether the charges were lawful and wellfounded). From the point of view of the constitutional status of the prosecutor's office, there are different opinions in the Slovak legal community and in the decisions of the Constitutional Court as to whether the prosecutor's office (and its control activity consisting in the supervision of legality) is in fact a body of the executive power (after all, the public prosecutor's office as a prosecuting authority in criminal proceedings is part of the executive power in several Member States). If we accept the thesis that the prosecution is part of the executive branch, the situations described above constitute disproportionate interference by the executive branch in the decision-making activity of the judiciary. However, from the point of view of the systematics of the Constitution of the Slovak Republic, the prosecutor's office is not included among the bodies of the executive power but belongs among the separate (but not necessary independent) bodies of the protection of legality (see Čentéš, 2012) together with the public defender of rights (ombudsman). The separate status is highlighted by the system of election and appointment of the Prosecutor General – the candidate for this position is elected by the Parliament and appointed by the President. The Slovak VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS Constitutional Court, in the context of deciding on the constitutionality of the Prosecutor General's cempetence, evaluated these aspects and summarised its previous decision-making and concluded (PL. ÚS 1/2022, para. 97-110) that the prosecutor's office is not part of the executive branch.122 Finally, European Union law and the subsequent jurisprudence of the CJEU reflect that there are different systems of prosecutors' offices and public "state representations" in the EU Member States, and that some are closer to the separate (independent) status of the judiciary (especially those labelled "prosecutor's office") and some are subordinate to the executive branch (labelled "state representation"123), as we have also pointed out in the context of the Czech prosecutor's office. From the point of view of the relationship between national law and European Union law, it is legitimate that this question falls within the sphere of assessment of the national legislator or the body adopting the Constitution. The public prosecutor's office, under the influence of the executive, cannot be the issuing authority for the European arrest warrant under Article 6(1) of Council Framework Decision 2002/584/JHA on the European arrest warrant (Court of Justice, OG and PI, C-508/18, C-82/19 122 The Constitutional Court summarized it in the following way (PL. ÚS 1/2022, paragraph 109): 'The Constitution does not include the prosecutor's office among the organs of the executive power in the sixth title or among the organs of the judicial power in the seventh title. Nor does the Constitution lawfully and necessarily include the prosecution in the legislative branch in Title Five. This (non)inclusion of the prosecutor's office results from the fact that the prosecutor's office does not have legislative power, nor does it have judicial power (it does not decide disputes on behalf of the state), but it also does not have executive power (it does not impose legal sanctions on persons who have violated the law and does not supervise the effectiveness and efficiency of the execution of decisions). The Public Prosecutor's Office has features as an executive authority in supervising the observance of legality by public authorities, which does not make it a public authority itself, nor does it make it an executive authority." 123 „Státní zastupitelství“ in Czech language 141 ANDREJ BELEŠ PPU), but the public prosecutor's office, as an independent body from the executive, can be the issuing authority in relation to the European arrest warrant under that Framework Decision (Court of Justice, PF, C509/18). Although the Public Prosecutor's Office, under the influence of the executive, cannot be the issuing authority for the European Arrest Warrant, it can be the issuing authority for the European Investigation Order in criminal matters (Court of Justice, Staatsanwaltschaft Wien, C584/19). The Slovak prosecutor's office does not have an explicit independent constitutional status (the constitutional basis of the prosecutor's office is autonomy, not independence), but it is not subordinate to the executive. Thus, even if we accept that the prosecutor's office is an separate, autonomous or independent power that is divided from the bodies of the executive power (in particular, it is not subject to the government as the supreme organ of the executive branch), it is nevertheless appropriate to consider whether the above-mentioned powers of the autonomous Prosecutor General, which effectively interfere with the decisions of the courts, are appropriate in light of the independence of the judiciary. The Constitutional Court recalled in this respect (PL. ÚS 1/2022, para. 120) that the different branches of public power in the State are not separated absolutely but balance each other and exercise mutual control. Also entering this assessment is the fact that the Prosecutor General, as a body composed of one person, is empowered in a de facto centralized manner to intervene in all criminal proceedings (even if the detention of the accused has been decided in two stages by several courts). Thus, the problem of interference with the independence of the judiciary overlaps with the problem of interference with the division of powers in the state [2)], or to a large extent with the problem of concentration of power in the jurisdiction of a single authority [4)]. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS Specifically, regarding the problem that the decision of the Prosecutor General may negate the court's decisions in deciding on custody, the Slovak Constitutional Court stated (PL. ÚS 1/2022, para. 130 et seq.) that by deciding on custody in the pre-trial proceedings, the judge does not assume the prosecutor's responsibility for the legality of the pretrial proceedings. The Court supplemented this by reasoning that the court deciding on remand in custody cannot be required to examine in detail the lawfulness of the charge, or that the grounds for prosecution are not part of the operative part of the decision on remand in custody. Simply put, for the purpose of the custody decision, the judge examines the circumstances, whether it is reasonable to assume that the criminal act happened and was committed by the accused, and then only in the basic outlines, without making any ultimate conclusions about the merits of the prosecution.124 The judge is not empowered (on finding that the prosecution is unfounded) to quash the charge; the judge's power is limited to not taking the accused into custody or releasing him. The above reasoning of the Constitutional Court must be critically assessed from the point of view that the Constitutional Court thereby downplays or marginalizes the role of the judge in deciding on the merits of prosecution for the purpose of detention, as if judges in such cases decide superficially. However, it is possible to agree that the purpose of the court's decision and the purpose of the Prosecutor 124 The Constitutional Court specifically stated (para 131): 'In other words, the pre-trial judge, when deciding on custody at a given stage of criminal proceedings, examines (inter alia) whether he or she is satisfied by the file and by any facts alleged, at least to a sufficiently reasonable degree of probability, without manifest error or irregularity, that there are reasonable grounds for suspecting that the accused committed the act under investigation.' It shall ascertain that fact for the purpose of deciding on the personal liberty of the accused within the time-limit prescribed by the Constitution or, as the case may be, by the Code of Criminal Procedure. It is therefore not his task to find ultimate conclusions concerning the merits of the prosecution of the accused (except, for example, in the case of manifest errors already mentioned) or to close or eliminate open conflicts or conflicts in the probative value of individual pieces of evidence." 143 ANDREJ BELEŠ General's (Supervising Prosecutor's) decision are different, and also that the prosecutor is entitled to decide on the release of the accused in other situations and this does not constitute interference with the decision-making activity of the courts. This argument, however, does not alter the fact that the Prosecutor General has a centralised and concentrated wide-ranging jurisdiction and that the situation where a prosecutor supervising a particular prosecution releases an accused is different. As regards the objection of interference with the principle of legal certainty, the Constitutional Court has dealt (PL. ÚS 1/2022, para. 142, 149 et seq.) with the competence of the Prosecutor General in terms of its purpose – to eliminate the illegality of final decisions in the preparatory proceedings. The interest in legality (which is not only a fundamental principle of criminal proceedings but is also a manifestation of the constitutional principle of legality) outweighs the interest in preserving legal certainty, i.e. the stability and immutability of decisions which are affected by illegality. On the other hand, the Constitutional Court has not dealt with the objection of interference with the principle of legal certainty by the fact that the courts and the Prosecutor General present two different legal opinions on the same matter (legality and justification of the charge). Ad 2) The special or separate constitutional status of the prosecutor's office and the application of the Prosecutor General's broad power to overrule decisions in pre-trial proceedings (even in cases where the merits of the prosecution have already been considered by the courts) may undermine the system of division of powers in the state. The Prosecutor General and the Public Prosecutor's Office per se do not have an independent position in the constitutional system and stand outside the system of division of powers in the State. The role of the Public Prosecutor's Office is to protect the rights and legally protected interests of natural persons, legal persons and the State, but its VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS decision-making activity must not be superior to that of the independent courts. In relation to the courts, the public prosecutor's office does not perform a supervisory role, nor is it included in the system of the triple division of powers in the State, in which it would have the role of balancing the decision-making activity of the independent courts – in a system of checks and balances between the different branches of power. Ad 3) The right to an effective investigation is part of the State's positive obligation to take effective measures to protect the most important fundamental rights and freedoms, in particular the right to life under Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the prohibition of torture, inhuman treatment and punishment under Article 3 of the Convention, the prohibition of forced labour under Article 3 of the Convention, the prohibition of forced labour under Article 2 of the Convention, the prohibition of torture under Article 3 of the Convention and the prohibition of forced labour under Article 3 of the Convention. 4 of the Convention, the right to liberty of the person under Article 5 of the Convention, the right to protection of private and family life under Article 8 of the Convention, the prohibition of discrimination under Article 14 of the Convention, while in a particular case the positive obligations may be triggered by a combination of these provisions (e.g. physical attacks against ethnic minorities).125 125 For example, the systemic discrimination associated with the use of violence against Roma communities (including by police forces) is reflected in several judgments of the European Court of Human Rights against the Slovak Republic, where the right to an effective investigation and other positive obligations under Articles 2, 3 and 14 of the Convention have been activated. For more recent decisions, see P.H. v. Slovakia, 8 September 2022, 37574/19, §§ 99-110 et seq; R.R. and R.D. v. Slovakia, 1 September 2020, 20649/18, §§ 176-189. 145 ANDREJ BELEŠ The obligation of the state to take effective measures is manifested both in terms of substantive law (the obligation of the state to criminalize the most serious infringements of these rights) and in terms of procedural law – in terms of legislation, to adopt and subsequently apply legal rules of criminal procedure that will ensure effective investigation of these most serious infringements of fundamental rights and freedoms. An effective investigation must meet four attributes: independence and impartiality, thoroughness, and efficiency (selection and application of appropriate means of proof, identification and seizure of evidence, thorough and impartial analysis of evidence), speed (ensuring that there is no unjustified delay in the proceedings), public scrutiny (e.g. involvement of victims and survivors, adequate public information). It is not an obligation on the authorities to achieve specific results in criminal proceedings, but the content of the obligation is to use effective tools. The right to an effective investigation is a construct of the ECtHR's jurisprudence in interpreting the aforementioned provisions of the Convention126 and is further specified at the national level, especially in the decisions of the constitutional courts127 (see Čentéš & Beleš, 2022). However, the State's obligation to investigate effectively is also established by European Union law, namely by directives adopted pursuant to Article 83 of the Treaty on the Functioning of the European 126 The purpose of imposing a positive obligation on a Member State is to ensure that the guarantees of fundamental rights and freedoms (which protect the fundamental values of a democratic society) are not merely formal postulates in an international treaty: "[...] the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective." Judgment of the ECtHR Mocanu and Others v. Romania, 17 September 2014, nos. 10865/09, 45886/07, 32431/08, paragraph 315. 127 From more recent court decisions, e.g. the ruling of the Constitutional Court of the Slovak Republic of 22 March 2022, Case No. III. ÚS 18/2022, ruling of the Constitutional Court of the Slovak Republic of 29 July 2021, Case no. III. ÚS 197/2021, Constitutional Court of the Czech Republic of 26 November 2021, Case No. II. ÚS 1886/21. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS Union, which provide for the obligation to criminalize certain offences, to apply effective, proportionate and dissuasive sanctions for those offences, and also to take appropriate procedural measures to clarify and investigate the criminal act and convict the perpetrator – e.g. in relation to child sexual abuse and child pornography, trafficking in human beings, or terrorism.128 The authority of the Slovak Prosecutor General under § 363 et seq. of the Criminal Procedure Code to annul decisions, also in favour of the accused, in particular to annul the resolution on the filing of charges, may in fact result in the criminal proceedings against the accused being terminated and the accused not being re-indicted, or the original evidence against the accused not being repeated or new evidence not being taken that would lead to a final conviction. Although the dismissal of an indictment by a decision of the Prosecutor General does not constitute an obstacle to the outcome of the case (rei iudicatae), it is possible that the procedural situation (state of the evidence) will not allow the prosecution to proceed. This may happen in particular when the Prosecutor General, in his legal opinion, identifies the illegality of the indictment in the fact that the testimony of the cooperating accused or the chain of circumstantial 128 E.g. Article 15(3) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1-14); Article 9(3) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 4 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1-11); Art. 20(1) of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6-21). 147 ANDREJ BELEŠ evidence is insufficient to conclude that a particular person can be indicted, while new (other) evidence will not be found after the revocation of the order of indictment. It may also be the case that a new charge is brought but that the pre-trial proceedings are thereby unduly prolonged. The above circumstances are further aggravated by the fact that there is no remedy against the decision of the Prosecutor General. The consequence of such a procedure may therefore be to undermine two aspects of an effective investigation: the thoroughness, efficiency, and speed of the criminal proceedings. The above procedure may therefore violate the right of victims and survivors under the Convention to have an effective investigation carried out by law enforcement authorities, or it may violate the State's obligation to apply the means of effective investigation in relation to certain groups of offences within the scope of the European Union. It could be argued against such a view that the right to an effective investigation (the obligation to investigate effectively) may also be infringed by other procedural decisions which create an obstacle to the case being decided (rei iudicatae) against a particular accused, in particular by an order to discontinue the prosecution or to refer the case (to an administrative authority to deal with an offence) or, at the outset, after the criminal complaint has been examined, by an order to dismiss the case, with the result that the prosecution is not even initiated.129 It is true that the above decisions may violate the right to effective investigation in a particular case, but it is always the decision of a particular police officer or prosecutor acting in a given criminal case (i.e. it is not a centralised decision with concentrated power within the competence of the Prosecutor General), and such a decision of a police officer or prosecutor is subject to an appeal (complaint), which is decided by a procedurally superior authority. 129 However, this order does not create a bar to rei iudicatae. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS The Slovak Constitutional Court (PL. ÚS 1/2022, paragraphs 203 et seq.) dealt with the above objections by stating that the requirement of the effectiveness of the investigation is countered by the requirement of conducting criminal proceedings only in a lawful manner, which is ensured by the exercise of the power of the Prosecutor General. According to the Constitutional Court, effective, expeditious and efficient proceedings contrary to the law do not enjoy protection because they do not comply with the requirements of a fair trial. However, it may be argued that the power of the Prosecutor General is not the only guarantee of the lawfulness of criminal proceedings, since the lawfulness is checked by the public prosecutor who supervises a particular criminal case and, subsequently, by the court which decides on the indictment brought against him. The concentration of power in the competence of one body, against whose decision there is no appeal, both creates risks for the fulfilment of an effective investigation and creates possibility for arbitrariness in the decision-making of the Prosecutor General. There is thus a partial overlap between two objections for which the Prosecutor General's authority appears to be contrary to the rule of law: the objection that the Prosecutor General's authority may conflict with the right to an effective investigation [3)] and the objection that there is an undue concentration of power in the Prosecutor General's jurisdiction [4)]. Ad 4) The concentration of the power en bloc to annul decisions in preparatory proceedings within the competence of one body, even one person, without the possibility of reviewing the cassation decision by another body, creates a wide scope for errors in decision-making due to negligence, but also for arbitrariness in decision-making, the essence of which lies in the deliberate abuse of the power conferred. The tendency to concentrate power and abuse it is inherent in human nature (Constitutional Court of the Czech Republic, Pl. ÚS 7/02). As the wellknown saying goes, power corrupts, and absolute power corrupts 149 ANDREJ BELEŠ absolutely. Arbitrary decision-making by a public authority is inadmissible in a state governed by the rule of law. The principle of the rule of law also has a human rights dimension (Schroeder, 2021, p. 106), i.e. it includes the right to a fair trial, which presupposes the exercise of public power in a legitimate manner, without arbitrariness. The rule of law requires that, • the powers of public authorities have been deconcentrated (and this also applies to the hierarchical and centralised prosecution system), • any power of a public authority is subject to clear and precise conditions of application so that the application of the power is predictable and reviewable, • public authorities check each other in the application of powers, i.e. there is external control over the exercise of powers (i.e. a public authority does not become a self-contained closed system, an "impregnable fortress"). The Constitutional Court of the Slovak Republic in the case PL. ÚS 7/2017 (where it assessed the constitutionality of the abolition of the socalled Mečiar amnesties) stated that the principle of the prohibition of arbitrariness is actually a principle of the prohibition of abuse of power and belongs to the list of "principles of a democratic and rule of law state" (the list also includes the principle of legality, the sovereignty of the Constitution and the law, democratic legitimacy, legal certainty, justice, proportionality, transparency and others). Finally, the Constitutional Court held that the annulment of the amnesties by a decision of the National Council was in accordance with the Constitution, since by granting the amnesties, the Acting President had violated the principle of the prohibition of arbitrariness in the exercise of public power. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS Arbitrariness – as the reckless exercise of one's own will, or the preference of one's own will over law and justice – is, in the opinion of the Constitutional Court, linked to abuse of power, which is understood as the exercise of power: • in violation of applicable law or • in excess of the competence conferred (ultra vires) or • beyond the discretion granted by legal rules or • contrary to constitutionally protected values expressed in a concentrated manner through constitutional principles, or • contrary to the purpose of the power, in particular if it is obvious that the conduct is contrary to the public interest, favouring personal interest or group interests (PL. ÚS 7/2017, p. 128; mutatis mutandis PL. ÚS 2/2023, para 69). The Slovak Constitutional Court has also dealt with the issue of arbitrariness in the exercise of public authority in other decisions. The Court pointed out (III. ÚS 90/2021, para. 16) that in cases of specific decisions of civil courts it is necessary to distinguish between procedural arbitrariness (which is manifested by a gross or repeated violation of the fundamental rules governing the procedure of a public authority) and substantive (material) arbitrariness (which represents an extreme inconsistency between the legal basis for deciding a case and the conclusions of the public authority, which in relation to this legal basis are untenable by generally acceptable interpretative procedures). The Constitutional Court recalled that the signs of arbitrariness are fulfilled when a public authority departs from a legal norm to such an extent that it negates its meaning and purpose. In general, the Constitutional Court intervenes in cases of individual complaints of violation of fundamental rights in cases where the interpretation of the law by a public authority is a manifestation of clear error or logical excess, diverges from the principles of fair procedure or is an expression of arbitrariness (III. ÚS 218/2023, para. 20). 151 ANDREJ BELEŠ The Constitutional Court of the Czech Republic recalls (Pl. ÚS 7/02) that the principle of the division of powers as a reflection of historical, ideological and institutional development has become a guarantee against arbitrariness and abuse of power, while this principle is also a guarantee of the freedom of the individual. Protection against the concentration of power and against possible arbitrary practices by public authorities is found in various places in the legal order, not only in constitutional law but also in other branches of law regulated by laws without constitutional force. According to the Czech Constitutional Court (I. ÚS 3038/07, paragraphs 25 to 27), the conditions for limiting fundamental rights and freedoms at the level of common laws are to be secured by effective and specific safeguards against arbitrariness. In particular, the protection against concentration of power includes the differentiation between the grounds for interference with privacy by wiretapping (interception of telecommunications traffic or spatial interception), both for the purposes of criminal proceedings under the Criminal Procedure Code and for the purposes of intelligence services under special laws. The Court recalled that "scientia potentia est – information has the potential for power". In another ruling, the Czech Constitutional Court (Pl. ÚS 4/17, the socalled "Lex Babiš", paragraphs 129, 151 and 165) named the risks associated with the concentration of political, economic and media power, which consist in particular in the possible disproportionate influence on persons in the public and private sectors. It is the duty of a democratic state governed by the rule of law to prevent a public official from using the power entrusted to him to promote his own (personal) interests, to the detriment of the public interest. According to the Constitutional Court, the concentration of power can lead to distortions of both political and economic competition. The legislator's initiative to adopt anti-conflict of interest rules to prevent the concentration of political, economic and media power is quite legitimate, as it is a VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS measure to prevent the possible gradual distortion of the democratic regime into one of its fictitious or illiberal variants (see e. g. Sajó, 2019). The protection against arbitrary application of law in the abstract review of constitutionality was considered by the Czech Constitutional Court in relation to the Electoral Act (Pl. ÚS 92/20). In the opinion of the Constitutional Court, the clear definition and appropriate limitation of competences preclude arbitrariness on the part of the Office for Supervision of Political Parties, also in view of the possibility of judicial review of decisions issued by that Office. In the context of fundamental rights, in particular the preservation of the right to a fair trial, the proper statement of reasons for the decision of a public authority, which reflects the relationship between the findings of fact and the reasons for the assessment of the evidence on the one hand, and the legal conclusions on the other, is essential when reviewing the constitutionality of the decision in a particular case (Pl. ÚS 5/16, paragraph 53). Moreover, the Czech Constitutional Court has recalled (III. ÚS 1775/22, paragraph 21) that the level of reasoning of a decision and the proper conduct and evaluation of evidence are (in addition to being an immanent part of a fair trial) a means of ensuring the transparency and verifiability of the judiciary and an effective prevention of unreviewability or even arbitrariness of judicial decisionmaking. The requirements arising from the rule of law, in particular the principle of prohibition of arbitrariness, i.e. the prohibition of abuse of power, thus concern – according to the presented opinions of both the Slovak and the Czech Constitutional Court – the determination of the scope and exercise of powers in the legislative plane and the concrete implementation of powers in the application plane. 153 ANDREJ BELEŠ It is necessary to correct arbitrariness not only in the exercise of powers in specific cases of application of the law, but it is also necessary to prevent arbitrariness in the application of the law by quality legislative activity - in particular by precise definition of the powers of public authorities. This also applies to the public prosecutor's office and the powers of the Prosecutor General: although the public prosecutor's office is built on the organisational principles of centralism and unity, headed by the Prosecutor General, it is at the same time subject to the constitutional principles of legality, prohibition of arbitrariness and abuse of power (Constitutional Court of the Slovak Republic, PL. ÚS 2/2023, paragraph 64). In these contexts, it is necessary to assess the power of the Prosecutor General to quash the decisions of the police officer and the prosecutor in the preparatory proceedings. The legal regulation of the Prosecutor General's power to quash unlawful decisions of a police officer or a prosecutor in pre-trial proceedings is characterised by the following attributes: • the legal regulation at the level of the common law (Article 363 of the Code of Criminal Procedure) provides that the Prosecutor General is entitled to quash any final decision of a police officer and a prosecutor, i.e. the law does not provide for a specific list of decisions against which the Prosecutor General may exercise his competence – the exemplary list is only given in the order of the Prosecutor General; o The question remains whether the de lege ferenda list should also include the charging order, which is by its nature only a procedural decision (whereby if the police officer commits an illegality in issuing such an order, it is primarily the task of the prosecutor supervising the particular criminal case to quash the charge brought by the police officer, which is based on an illegality); o It is also possible to consider adopting the Czech model, which only provides for the power to quash only VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS • substantive decisions (decision not to prosecute a suspect – i.e. refusal to file a criminal complaint, decision to discontinue prosecution, etc.); the law does not specify what is meant by the breach of legality of a decision (the Art. 363 contains only the wording "if the law has been violated by such a decision or in the proceedings preceding it") o Until 2015130 , the application of the Prosecutor General's powers was limited by the fact that the law stipulated that illegality is understood as a substantial misconduct that affects the substantive decision – such a specification is currently absent in the law (which is also critically evaluated in legal scholarship, see e.g. Vojtuš, 2022, p. 956), i.e. it is up to the discretion of the Prosecutor General to identify such illegality that is a reason to quash the decision of a police officer or prosecutor; o the law could specify more precisely – in order to preserve the principle of legal certainty and limit the scope for arbitrary application of the law – specific errors, i.e. precise cases of breach of legality at the level of substantive law (e.g. it is beyond doubt that the act is not a criminal offence) or procedural law (e.g. the prosecutor who should have been disqualified ruled on the complaint against the raising charges; or the prosecutor instructed the raising charges and the same prosecutor subsequently ruled on the complaint against the charges), which would constitute a level of serious 130 Act No. 401/2015 Coll., amending Act No. 153/2001 Coll. on the Public Prosecutor's Office, deleted the third sentence from Section 363 of the Code of Criminal Procedure, "Violation of the law is understood as a substantial error that could have influenced the decision in the case." 155 ANDREJ BELEŠ o o illegality that would justify the intervention of the Prosecutor General in the form of annulment of the decision, The essence of these considerations is that the Prosecutor General's power to intervene in final decisions should be limited de lege ferenda to forms of illegality that cannot be remedied in any other way and that are extreme in fact or procedure; The Slovak Constitutional Court attempted to address the above-mentioned lack of legal regulation (PL. ÚS 1/2022, paragraph 146) to compensate for the constitutionally conforming interpretation that despite the above-mentioned legislative change from 2015, it is still necessary to require, when applying the Prosecutor General's authority, the fulfilment of the extraordinary characteristic that the violation of the law must be of a substantial intensity meaning a possible substantial impact on the outcome of the proceedings, while this procedure cannot be applied if the established illegality can be remedied at later stages of the criminal proceedings in such a way as not to prejudice the essence of the right to a fair trial131 – this does not, 131 The Constitutional Court formulated this constitutional interpretation of the provision of Section 363 of the Code of Criminal Procedure, which partially limits the power of application of the Prosecutor General, as follows (PL. ÚS 1/2022, paragraph 148): “The decision on an extraordinary remedy under the contested provisions is based on the presumption of the correctness of the final decision as well as of the proceedings that preceded it. The Prosecutor General may declare a breach of the law only if he finds such a contradiction in the contested decision or in the proceedings preceding it that the characteristics resulting from the finality of the decision cannot be upheld. The legal certainty established by a final unlawful decision of a public prosecutor or a police officer or by the unlawful conduct which preceded it shall prevail over the principle of the legality of the criminal proceedings, if the illegality found can be remedied at the subsequent stages of the criminal proceedings in such a way that such illegality does not constitute a violation VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS • • however, alter the fact that the principle of legal certainty and the principle of non-arbitrariness require that this condition be stated directly in the text of the law; o The Constitutional Court has also pointed out (PL. ÚS 1/2022, para. 148) another limitation of application, which results from its decision-making activity (PLz. ÚS 2/2022): when the Prosecutor General decides on an ordinary remedy (complaint) against a decision of a prosecutor or a police officer, it is not permissible for him to decide on an extraordinary remedy, i.e. the identity of the decision-making body and the body which carries out the subsequent legal review is inadmissible; such an application limitation also does not fundamentally change the above-mentioned problems with the lack of certainty of the legal regulation, or the broad scope of the Prosecutor General's powers; the Prosecutor General is entitled (on application or ex officio) to annul the decision of a police officer or prosecutor within a period of up to six months from the date on which the decision becomes final, o The time limit thus conceived is relatively broad and creates a wide scope for interference with final decisions, which may result in unreasonable prolongation of the preparatory proceedings; the Prosecutor General decides on the annulment of a decision of a police officer or prosecutor by an order against which no appeal is admissible, nor is a judicial review of the decision of the Prosecutor General possible, of the principles of due process endangering or infringing the right to judicial and other legal protection." 157 ANDREJ BELEŠ o the absence of a remedy is based on the consideration that the Prosecutor General's action is an extraordinary remedy and therefore, in principle, no further remedy is admissible against it; however, we have already stated above that such an action by the Prosecutor General is primarily a cassation competence and would not need to be described as an extraordinary remedy; a judicial review could, in principle, be provided against a cassation competence. The Constitutional Court of the Slovak Republic, in its ruling in which it assessed the constitutionality of the Prosecutor General's authority under Art. 363 et seq. Criminal Procedure Code (PL. ÚS 1/2022, para. 154 et seq.), returned to the definition of arbitrariness presented in the ruling on Mečiar's amnesties (PL. ÚS 7/2017). In this regard, the Court recalled its settled case-law according to which, if a public authority acts and decides in accordance with the law, there cannot be a violation of a fundamental right guaranteed by the Constitution or the Convention. In the opinion of the Slovak Constitutional Court, the present competence of the Prosecutor General does not violate the principle of the prohibition of arbitrariness in view of the following facts: • The Prosecutor General is not empowered to overrule the decisions of the Pre-Trial Judge, but is only empowered to overrule the decisions of the police officer and the prosecutor, the prosecutor being the dominus litis of the pre-trial proceedings, • The power of the Prosecutor General to overrule the decisions of the police officer and the prosecutor is regulated directly by the law – the Criminal Procedure Code, therefore it is excluded from the essence of the matter that such action of the Prosecutor General could be qualified as exceeding his authority or acting beyond his competence, VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS • • • • A violation of the prohibition of arbitrariness and abuse of power would occur if the Prosecutor General, from his own activities, had discovered facts indicating a violation of the law or if a proposal had been made to him in accordance with Art. 364 (1) of the Code of Criminal Procedure and the Prosecutor General had failed to act, criminal proceedings divided into individual stages form a single unit, and thus a procedural error at one stage can be corrected at a later stage – however, the Prosecutor General's authority ensures confidence in lawful and fair decision-making already at the stage of the preliminary proceedings without subsequent unnecessary contamination of the other stages of the criminal proceedings; The specific limits of the application of the Prosecutor General's authority are: protection of legality against its gross violation, limited active legitimacy and limited time of application, impossibility of application when the Prosecutor General has previously ruled on the same case; the Prosecutor General's authority to act ex officio is justified by the constitutional role of the prosecution; The impossibility to appeal against the decision of the Prosecutor General and the impossibility to have the decision reviewed by a court is not a violation of the right to a fair trial (the right to judicial and other legal protection) – the possibility to have the decision of the Prosecutor General reviewed by another remedy would mean a chain of remedies, which would (ad absurdum) make it impossible to ever reach the immutability of the decision; as to the possibility of judicial review, the Constitutional Court stated that the Prosecutor General acts as a law-enforcement authority in criminal proceedings, not as a public administration authority in administrative proceedings, resp. In the further course of 159 ANDREJ BELEŠ criminal proceedings, judicial review (when the court decides on the merits of the case). However, the Constitutional Court did not elaborate on the undue concentration of power in the Prosecutor General's competence to intervene in any criminal proceeding without sufficiently clear, specific and narrowing legal criteria, as well as without such a decision being reviewable. This means that the Constitutional Court did not specifically examine whether the legal regulation on the exercise of the Prosecutor General's powers sufficiently meets the qualitative requirements to comply with the principle of the legality of the exercise of public authority (Article 2(2) of the Constitution of the Slovak Republic). In this respect, the Court merely stated in general and abstract terms (PL. ÚS 1/2022, paragraph 159) that it "did not find any room for arbitrariness created by the law in the actions of the Prosecutor General", while it is true that "any regulation establishing jurisdiction may be applied arbitrarily, but against which there is a presumption of the correctness of individual legal acts and bona fidae actions of public authorities". The fact that legislation has been applied arbitrarily can only be established by a review of the decision-making by a superior authority, which does not exist in relation to the Prosecutor General. As regards the argument that an "endless" chain of remedies is inadmissible from the point of view of legal certainty, or that the "endless" chain of remedies is inadmissible from the point of view of legal certainty, or that there is a judicial review in the subsequent decision of the court in criminal proceedings, it should be argued that, given the breadth of the Prosecutor General's authority and his ability to overrule court decisions by quashing charges, there is a public interest in external review of the Prosecutor General's concentrated authority, and judicial review in the court's decision on the merits of a criminal case may not occur at all if, after the Prosecutor General quashes the charges, no new charges are brought. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS As we have stated above, although the procedure of the Prosecutor General is described as an 'extraordinary remedy', in reality this procedure has the legal character of a cassation competence, since the Prosecutor General is empowered to annul a decision either on a motion or also on his own initiative (ex officio). This means that judicial review would be an external check on the cassation power, not an "endless" chain of remedies contrary to legal certainty. On the basis of the above attributes of the de lege lata regulation of the disputed competence of the Prosecutor General, we are of the opinion that it is a broad power concentrated in the competence of a single body composed of a single person; the conditions for the application of this power are largely unclear and imprecise, which limits the predictability and reviewability of the Prosecutor General's orders; and, finally, the application of the Prosecutor General's power is not subject to any external control, since there is no body that would be entitled to review the Prosecutor General's decisions (notably an independent tribunal). In our legal opinion, therefore, the legislation in question establishes a disproportionate concentration of power in the Prosecutor General's competence, which in specific cases may lead – without meeting the requirements of predictability and reviewability – to decisions based on arbitrariness (which may be of a procedural or substantive nature), i.e. to abuse of power in the form of exceeding the authority (ultra vires) or exercising power beyond the discretion granted by the legal norms. In our opinion, the Slovak Constitutional Court should therefore have repealed the above-mentioned legal provisions on the power of the Prosecutor General on the grounds of contravention of the rule of law. 3) Quality of the legislative process with stakeholder involvement 161 ANDREJ BELEŠ In the previous text, we pointed out the problem of the quality of legislative activity in relation to the clear and precise definition of the powers of public authorities. However, this problem is broader and is generally concerned with the qualitative aspects of law-making in the adoption of constitutional laws, "ordinary" laws as well as by-laws, which should be the result of democratic processes as the rule of the people, or at least of the majority of society, taking into account the rights of minorities. However, the government of all, i.e. the government of the whole people, is only an ideological formula and the essence of democratic norm-setting is the balancing of individual conflicting interests (Constitutional Court of the Czech Republic, Pl. ÚS 7/02). The content of legislation should be based on reaching a reasonable degree of social consensus – taking into account the expressions and opinions of ideological, social, national, ethnic and other minorities, or using expert knowledge and comments. The procedural rules for the adoption of laws reflect a democratic pluralist system in which the opposition should be able to express itself and promote the interests of the minority. Corresponding to this is the obligation of the majority to respect the protection of minorities, in this case the parliamentary opposition, which is ultimately how the control of the parliamentary majority itself is exercised. The limitation of public power (including legislative power) by institutional measures is still one of the main concerns of the rule of law. The principle of the legality of the exercise of public power also implies that the legislature is bound by the constitution (Schroeder, 2021, p. 122). Nor may the legislature in the rule of law act arbitrarily in enacting laws. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS A problematic aspect pointed out by both the European Commission and stakeholders is the extent of the involvement of entities in the interministerial comment procedure, as well as the problem of excessive use or even "abuse" of the accelerated or abbreviated legislative procedure (the so-called "legislative emergency") without a comment procedure, even in cases where there are no substantive reasons for such a procedure. Such abuse undermines democratic procedures by excluding stakeholders from the debate on a legislative proposal. In particular, in the Slovak legislative environment (European Commission, 2023b), in addition to the problems with the shortened legislative procedure, stakeholders point to the practice in which the legislative process is initiated by members of parliament, as in such case public consultations are excluded, as well as consultations with ministries and experts. The lower rate of public consultation is also caused by so-called legislative addenda, i.e. changes to laws that are tacked on to other unrelated changes. In his position as a stakeholder, the Public Defender of Rights (Ombudsman) specifically commented to the European Commission on this issue, pointing out that this practice is also the case in relation to the most important legislation in the State (the State Budget): "One of the biggest concerns still remains to be the adoption of MP proposed bills. Some significant changes to important bills have been introduced through MP proposals conciously in order to avoid public consultations. To name just a few, for example the state budget has been significantly amended through MP proposals just few days before being adopted by the parliament. Another important change in the building act has been achieved by a MP proposal. According to some NGOs this change can significantly limit the public participation in creating the area plans." On the abuse of the fast-track legislative procedure, the Ombudsman pointed out that this is a persistent problem and that the proportion of 163 ANDREJ BELEŠ laws enacted in this way increased in 2022: "In year 2022, 21 out of 179 statutes were enacted using the fast-track procedure. This represents 11.7% of statutes enacted this year. [...] This still represents an increase in comparison to years 2002-2020, where the average proportion of laws enacted in fast-track procedure was 7.3% [...]". Among NGOs, Via iuris, for example, has long drawn attention to this problem. Within the Czech legislative environment (European Commission, 2023a), both the European Commission and stakeholders critically argue that there is a persistent problem with the high number of laws that are adopted in the fast-track legislative regime, i.e. the limitation of democratic debate. In 2022, the Czech legislature adopted 20 laws through the fast-track legislative process, of which 18 were adopted in the abridged process (in a state of legislative emergency). Thus, there was a slight increase in the number compared to 2021. Whereas in previous years the reason for the adoption of laws under fast-track procedures was the pandemic crisis, in 2022 it was mainly the crisis linked to the war in Ukraine and related to the increase in the number of incoming refugees. A law changing the calculation of increases in oldage pensions132 is being considered by the Czech Constitutional Court following a petition by an opposition political party. The violation of the rules of the legislative process, which is specifically manifested in the abuse of the shortened legislative procedure with the consequent restriction of democratic debate, is also reflected in professional publications and legal scholarship. Hodás specifically states (Bujňák, Gaňa, Hodás, 2023, p. 205): "In the context of lawmaking, Otto von Bismarck is associated with the statement: 'People will sleep better if they do not know how sausages and laws are made...' The rules of the law-making process bind the National Council and its subjects. [...] In application practice, there is also illegitimate overuse of the 132 Act No. 71/2023 Coll. amending Act No. 155/1995 Coll. on pension insurance. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS summary legislative procedure when the material conditions for its procedure are not met (i.e. there are no extraordinary circumstances during which fundamental human rights and freedoms or security may be threatened or the state is threatened with significant economic damage)." For example, the Constitutional Court of the Czech Republic (Pl. ÚS 53/10) on the unjustified application of the shortened legislative procedure stated that the justification of the shortened legislative procedure cannot be based only on the consensus of deputies but must be based on the real and objective seriousness of the situation, which must be responded to immediately by adopting a law or amending it. Therefore, flagrant abuse of the shortened legislative procedure constitutes a disproportionate restriction of democratic procedures and therefore grounds for intervention by the Constitutional Court and annulment of the legislation thus adopted.133 In a more recent decision, the Czech Constitutional Court recalled (Pl. ÚS 7/22, para. 75 et seq.) that the state of legislative emergency (with the consequence of inevitable limitation of democratic debate) can be used only in the case of extraordinary circumstances that clearly exceed the normal course of democratic processes. If the "very core of democratic parliamentary debate" is affected, the intervention of the 133 Ruling of the Constitutional Court of the Czech Republic of 19 April 2011, Pl. ÚS 53/10: "Elected representatives of citizens must publicly justify and defend the validity of their proposals in direct confrontation with the views of their opponents. The decision is thus taken only after the reasons for and against the adoption of the bill have been formulated in this way. Individual Members and Senators, without prejudice to their ability to vote freely and to the best of their knowledge and conscience, will thus make their decisions in the light of the arguments on both sides. At the same time, this not only allows the public to scrutinise their actions, i.e. to know whether and for what reasons they have supported a particular proposal or not, but also, in effect, to participate indirectly in the legislative process, since the debate within the general public, and the resulting approval or criticism, invariably influences the decision-making of individual MPs and Senators. [...] The Constitutional Court considers such requirements of openness, publicity and control of the legislative process to be an immanent part of the democratic principle." 165 ANDREJ BELEŠ Constitutional Court is justified. The impact on the democratic debate is assessed in relation to the actors in the parliamentary debate themselves. In contrast, the Constitutional Court of the Slovak Republic preferred a more restrained approach in terms of these interferences with the procedure of the parliamentary majority and considered the abuse of the abbreviated legislative procedure itself – with the consequence of the exclusion of discussion with the interested subjects – only as an unlawful procedure, but without having constitutional relevance (it is not contrary to the rule of law or the principle of the legality of the exercise of public power), i.e., that the consequence should be the annulment of the law adopted in this way by the Constitutional Court. According to the Slovak Constitutional Court, in addition to the "ordinary" illegality, there would have to be other exceptional circumstances which would increase the seriousness of the abuse of the abbreviated legislative procedure.134 Finally, the Constitutional Court for the first time (PL. ÚS 13/2022) annulled some parts of the Act on the grounds of abuse of the abbreviated legislative procedure in conjunction with a violation of the constitutional value of the long-term sustainability of the state's management, which is supposed to be based on transparency and efficiency in the spending of public funds. Several Member States, as confirmed by stakeholders, continue to improve the 134 According to the Slovak Constitutional Court, this means that there would have to be a situation of so-called "rolling back" of the opposition or a procedure consisting in the so-called instrumentalisation of parliamentary legislation. The Court adds: "However, no such intensive interference has been proven. Thus, there was no situation in which the parliamentary opposition or minority could not exercise oversight and control over the majority, or would otherwise be excluded from the parliamentary (legislative) process, contrary to the requirements of the rule of law and a democratic state." Ruling of the Constitutional Court of the Slovak Republic of 13 December 2022, Case No. PL. ÚS 13/2022, paragraph 145 et seq. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS quality of the legislative process, following a trend already noted in previous Rule of Law Reports. In another recent ruling (PL. ÚS 18/2022), the Slovak Constitutional Court generally defined three situations when a violation of the rules of the legislative process by the parliamentary procedure may result in the unconstitutionality of the adopted law: • • the Parliament violates constitutional rules explicitly related to the lawmaking process – e.g. failure to comply with the constitutionally stipulated majority of MPs for the adoption of a law [Article 84(1) and (2)] or a situation where a bill is submitted by an entity that does not have the right of legislative initiative [Article 87(1) of the Constitution of the Slovak Republic]; Parliament violates the rules of the Rules of Procedure Act; however, in order for a violation of legality to be a violation of constitutionality, other conditions must be met: o it is a violation of the Rules of Procedure Act of a certain, higher intensity, which may have occurred; o violation of the relevant constitutional articles; o A violation of the rules of the legislative process acquires constitutional intensity if this action results in a serious violation of constitutional rights or principles (PL. ÚS 4/2018), or if a constitutionally protected principle has been affected during the legislative process (PL. ÚS 13/2022) § e.g. violation of the constitutional rights of members of the National Council in the exercise of their mandate, the principle of free competition of political parties, the principle of majority decision-making and protection of the parliamentary minority, the principle of pluralism of the will of the members of the 167 ANDREJ BELEŠ • National Council, the principle of publicity in the discussion of a draft law or the principle of long-term sustainability of the economy of the Slovak Republic, including the efficiency of the spending of public funds. Parliament formally complies with the provisions of the Rules of Procedure Act, but constitutionally protected rights or principles are nevertheless violated; e.g. the application of a provision of the Rules of Procedure Act interferes with the principle of protection of parliamentary minorities. The abuse of the abbreviated legislative procedure where democratic debate is limited, including the exclusion of comments from stakeholders, therefore corresponds to the latter situation. A law adopted may therefore be declared unconstitutional if it is possible to identify the specific constitutional principles which have been infringed by the abuse of the abridged legislative procedure. In direct contradiction to the critical demands of the European Commission, the stakeholders as well as the constitutional courts for a quality legislative process with the involvement of the expert public and the preservation of democratic debate, the draft law submitted by the Slovak government (as constituted after the elections in September 2023) to the Parliament for approval in an abbreviated legislative procedure. The content of the draft law is an extensive amendment of the Criminal Code, the Criminal Procedure Code as well as the Act on the Public Prosecutor's Office, amounting to 67 pages of legislative text alone. This draft law is intended, in particular, to lead to a large-scale reduction in the penal rates for crimes against property, eco-crimes and corruption and to an increase in the thresholds of damage in the qualification of criminal offences, without a corresponding expert discussion. The Office of the Special Prosecutor's Office, which consists of 30 specialised prosecutors for the most serious crimes committed by VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS criminal groups, economic crime, corruption, extremism and terrorism, will be abolished, with the result that criminal files in ongoing proceedings will be reassigned to regional prosecutor's offices. The Slovak government justified the application of the abridged legislative procedure on grounds that are not relevant to limit democratic debate on an amendment that has wide-ranging implications for the rule of law: • • The need to align the Criminal Code and the Criminal Procedure Code with certain directives (e.g. 2017/1371 on combating fraud against the financial interests of the Union, 2013/48/EU on the right of access to a lawyer in criminal proceedings) o The vast majority of the amendment is not related to the transposition of the directives mentioned, or the Slovak Republic is not at imminent risk of being sentenced to a financial penalty by the Court of Justice for non-compliance with its obligations; The need to humanise punishments o Changes in penal rates and sentencing must be the subject of extensive professional and democratic debate in a state governed by the rule of law; the alleged humanisation of penalties with immediate effect cannot justify the erosion of constitutional principles; in addition, disproportionate loosening of penal policy may result in de facto impunity (as a consequence of the statute of limitations) and in the impunity of serious crimes from prosecution; o The promoters of the law submit that the reduction of criminal penalties is required by Article 49(3) of the Charter of Fundamental Rights of the European Union (Court of Justice, G.ST.T., C-655/21), but that the majority of offences against property and economic 169 ANDREJ BELEŠ • • • 135 crimes do not fall within the scope of European Union law, so that the Charter is not applicable, or that the Court's conclusions in the judgment in question cannot be interpreted extensively; Modification of the penalty of forfeiture of property in accordance with the ruling of the Constitutional Court (PL. ÚS 1/2021) o A proper legislative procedure and a democratic debate on the appropriate scope of application of the penalty of forfeiture of property is sufficient for harmonisation; however, the government proposal goes well beyond both the merits and the reasoning of the Constitutional Court's ruling, creating room to prevent the implementation of the penalty of forfeiture of property in all cases where it has not yet been carried out; Changes to the legal limits of damages in line with inflation o Since the recodification of the substantive criminal law in 2005, the threshold of small damages (which was permanently at the level of EUR 266, i.e. still originally at SKK 8,000) has not been raised and after 18 years it is not necessary to suddenly act urgently, without democratic discussion; o Moreover, the Government has chosen not to take into account the rate of inflation and increase the damages limit accordingly, but has chosen to increase the statutory limits excessively;135 Alignment with the case law of the European Court of Human Rights The small damage threshold of 266 € in 2005 corresponds to a value of 452 € in 2023, i.e. (rounded to the nearest hundred) 500 €. In comparison, the Government's proposal sets the small damage threshold at 700 €. VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS A proper legislative procedure and a corresponding democratic debate are sufficient for such a modification; moreover, the Government refers in its proposal to some judgments (Mucha v. Slovakia) which are not materially related to the amendment in question; Inconsistency in criminal policy caused by the activities of the Office of the Special Prosecutor: o It is relatively difficult to build functioning institutions in a democratic and rule of law state, especially with specialised expertise in serious crime – to abolish such a functioning institution without adequate democratic and professional debate (merely citing alleged inconsistencies in criminal policy) is contrary to the essence of the rule of law. o • According to the opinion of the European Public Prosecutor's Office, which can also be granted quasi-standing as a stakeholder, there is a serious risk of a breach of the rule of law under Article 4(2)(a) of the EC Treaty in relation to the amendment under analysis. (c) of the Suspension Regulation, given the risk of jeopardising the clarification of fraud affecting the financial interests of the EU, the abolition of the functioning cooperation between the EPPO and the Office of the Special Prosecutor, the change in the jurisdiction of criminal cases prosecuted by EPPO prosecutors from the Specialised Criminal Court to district courts and other risks. Particularly in relation to the abuse of the accelerated legislative procedure, i.e. the extraordinary speed with which amendments are adopted, the EPPO has also pointed to a possible breach of the principle of sincere cooperation under Article 4(3) of the Treaty on European Union (European Public Prosecutor's Office, 2023). This objection by the EPPO seems to indicate that the limitation of democratic debate in the 171 ANDREJ BELEŠ national legislative process also limits the possibility for the EU institutions and bodies to express their expert opinion on changes concerning the effective application of EU law at national level, in particular in relation to the protection of the EU's financial interests. The shortened legislative procedure justification does not demonstrate grounds for urgent adoption of the legislation, as underlined by the EPPO's reaction to the proposal in question – with reservations about a possible breach of EU law. The abuse of the abbreviated legislative procedure, which is linked to the violation of the constitutional principles of the rule of law (PL. ÚS 18/2022) as well as to the violation of EU law and affects the very core of democratic debate (Pl. ÚS 7/22), may (in accordance with the content of the Constitutional Court decisions analysed above) render unconstitutional the amendments to the Criminal Code, the Criminal Procedure Code and the Act on the Public Prosecutor's Office in question. 6.3. CONCLUSIONS The activities of stakeholders who submit their observations to the European Commission on the maintenance of the rule of law in individual Member States reinforce the pressure on the legislative and executive authorities to remedy the shortcomings that undermine the rule of law. This applies in particular to contributions from civil society organisations, NGOs, but also to some state institutions with an independent status (in particular the top judicial institutions). The stakeholder engagement process is currently set up in such a way as to provide a wide space for NGOs as well as state and local authorities to express an independent view. In particular, the Fundamental Rights Agency highlights the role of civil society organisations in each Member State in countering specific threats to the rule of law (European Union Agency for Fundamental Rights, 2023): "Civil society organisations and human rights defenders are contributing significantly not only to the VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS general rule of law culture in any given State but also to the resilience against concrete threats to the rule of law." In relation to the state of the rule of law in Slovakia – using a comparative research method with the Czech Republic – we have analysed in more detail three specific rule of law problems that are critically pointed out by both the European Commission and the stakeholders: 1) The Slovak Judicial Council is an independent body of judicial legitimacy, which has not been established in the Czech Republic, wide powers (e.g. in procedures for the selection of judges). The existence of such a body, where other branches of public power are represented, raises problems in terms of the independence of the members of such a body. The power of the Parliament, the Government and the President to dismiss members of the Judicial Council 'at any time' under the Slovak Constitution reduces the degree of independence of the Judicial Council. This problem has been pointed out by the Slovak Constitutional Court as well as by the Public Defender of Rights (Ombudsman). We are of the opinion that the power to dismiss members of the Judicial Council 'at any time' does not mean that they can be dismissed for any reason. 2) The institutions of public prosecution in Slovakia and the Czech Republic face serious challenges in terms of the functioning of the rule of law. The Czech prosecutor's office is 173 ANDREJ BELEŠ under the stronger influence of the executive, and the interference of the Minister of Justice in ongoing criminal proceedings can be a problem, which is also pointed out by stakeholders. Although the Slovak prosecutor's office has a separate status from the executive branch, the Prosecutor General has concentrated authority to intervene in all criminal proceedings and to overrule decisions of the police and prosecutor. In the opinion of the Public Defender of Rights, this overly broad competence undermines public confidence in the criminal justice system. We are of the opinion that the Slovak Constitutional Court has not sufficiently examined this problem (PL. ÚS 1/2022) from the point of view of concentration of power and the constitutional principle of legality of the exercise of public power. 3) The Czech Constitutional Court has long admitted the possibility of declaring a law unconstitutional due to a violation of the rules of the legislative process; the Slovak Constitutional Court committed itself to such a decision for the first time only in 2022 – due to a violation of the Act on the Rules of Procedure in conjunction with a violation of the constitutional principle of budgetary responsibility (PL. ÚS 13/2022). Stakeholders and the European Commission have long warned of overuse or abuse of the shortened legislative procedure in both Slovakia and the Czech Republic. In December 2023, the VI. RULE OF LAW – TARGETED STAKEHOLDER CONSULATIONS Slovak government submitted to the shortened legislative process an extensive and substantial amendment to the criminal law, which reduces criminal rates, shortens statutes of limitation and abolishes the specialised prosecutor's office. Violations of the Rules of Procedure Act, as well as violations of the rule of law, may be grounds for a ruling that the law is unconstitutional. Although the analysis of these problems – also in the context of the views of the stakeholders – does not directly show that "red lines" have already been crossed in Slovakia or the Czech Republic, i.e. that the values of the rule of law have been violated, these are persistent problems which, by their duration and their combination with other problems, signal a threat of erosion of the rule of law. 175 BIBLIOGRAPHY Books and articles Alemanno, A. (2021, February 25). The EU Parliament’s Abdication on the Rule of Law (Regulation). Verfassungsblog. 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