December 09
2021
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Until recently, issues relating to possible breaches of fundamental rights by the Member States’ authorities only rarely arose in infringement actions heard by the Court of Justice under Articles 258 to 260 TFEU. In the last years, that has no longer been the case: the Commission brought several high-profile cases before the Court, on the ground of alleged breaches of fundamental rights. The cases started against Poland, concerning the independence of the national judiciary (i.a. C-791/19, C-619/18, and C-192/18), and the value-related cases brought against Hungary (i.a. C-66/18, C-78/18, C-808/18, and C-821/19), are paradigmatic examples of this new trend.

The volume written by Alexandre Richard thus comes at the right time. Largely based on his PhD thesis (defended in 2019 at Paris 2 Panthéon-Assas University), the work intends to explore the issue of whether infringement proceedings constitute an appropriate means to control, and if need be to enforce, Member States’ compliance with fundamental rights. The volume consists of an introduction, two main parts and a general conclusion.

The introduction is principally meant to illustrate the aim of the work and to describe the methodology followed. In the first part of the volume, the author presents an overview of the infringement cases in which issues relating to possible breaches of fundamental rights were raised, and then explores the reasons that may explain the relatively limited number of those cases. In the second part of the volume, the author turns to certain situations in which the Member States use fundamental rights as a defence against breaches of EU law alleged by the Commission. In the general conclusion, the author ‘pulls the strings’ of his analysis. He takes the view that infringement proceedings are used too infrequently – and in any event are not used very effectively– against possible breaches of fundamental rights, despite their considerable potential. Several features of the procedure constitute, in his opinion, an obstacle to the full effectiveness of that procedure. In addition, the author is of the view that the Court could and should be more rigorous in assessing breaches of fundamental rights that may be detected in the cases brought before it. Finally, arguments based on fundamental rights should, according to the author, also be given more weight when put forward by the defendant Member States in order to justify alleged breaches of EU law. In his view, the Court has been too dismissive of such arguments.

The volume is an interesting contribution to the literature, providing a respectable overview of key issues. Moreover, the volume contains, as Prof. Picod writes in his preface, some original ideas. However, several of those ideas will no doubt result in an eyebrow being raised by many EU lawyers. In particular, the author’s view that the scope of infringement proceedings should be extended in order to also cover breaches of fundamental rights that are unconnected with EU law seems to clash with the ‘sacred’ principle of conferral. Moreover, it remains largely unexplained why proceedings before national courts and before the European Court of Human Rights would be inadequate to fill the vide juridique alleged by the author. It is also intriguing to read that the author finds the requirement for the Commission to clearly state, in both the acts issued in the context of the pre-litigation procedure and in its application to the Court, the specific complaints raised against the defendant Member State to be problematic. In his view, that requirement makes it excessively difficult for the Commission to deal with systemic infringements. Yet, the ‘right of defence’ is a general principle of EU law, and it is hard to imagine how national authorities could effectively exercise that right unless told precisely what they are accused of. A fortiori, vague or generic allegations would, arguably, make it quite difficult for the judges to carry out their task correctly. Last, but not least, an explanation as to why the Court’s case-law on ‘general and persistent infringements’ (inaugurated with Case C-494/01, and consistently re-affirmed, mostly recently in Cases C‑638/18, C-644/18 and C-664/18) is insufficient to tackle that issue would have been desirable.

In summary, the book makes for an interesting reading, dealing with several aspects of the infringement proceedings/fundamental rights duo. However, it is at times repetitive and, despite its length (it runs to almost 600 pages), one is left with the feeling that certain views expressed by the author are not supported by detailed argument. In addition, the author could have benefited from extending his research to scholarship on infringement proceedings other than that published in French. It is somewhat surprising to see the author often relying on articles published in French during the seventies or eighties (when infringement proceedings were, overall, quite different from those taking place now), and to find that references to more modern literature published in other languages are scarce. That notwithstanding, the author’s efforts to explore, with a critical eye and an innovative approach, the many facets of a very topical and important legal phenomenon should be warmly welcomed.

 

Luca Prete is a Référendaire (Court of Justice of the European Union) and Guest Professor (Vrije Universiteit Brussel). Views expressed are his own and made in a purely personal capacity.

 

 

 

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