Op-Ed: “Hungary v European Parliament (C-650/18): Enhancement of the Protection of the Rule of Law and Process-Oriented Review: Constitutional Business as Usual?” by Xavier Groussot and Anna Zemskova
The recent Hungary v European Parliament (C-650/18) judgment of the Grand Chamber of the Court of Justice, delivered on the 3rd of June 2021, has been one of the most anticipated cases of the year, adding fuel to the flame of the ‘rule of law backsliding’ saga. The core issue of this annulment action resides in putting an end to extensive elaborations on, supposedly, a rather straightforward understanding of the concept ‘votes cast’ in the context of the calculation of one of the constituents of the double majority, indicated in Article 354 (4) TFEU. The judgment, introducing an autonomous concept of EU law, that entails exclusion of abstentions from calculation, is remarkable at least with regard to two dimensions, the supranational and the procedural one. This Op-Ed focuses on the exploration of these two aspects, highlighted in the judgment.
The Supranational Dimension
Regarding the first aspect, the judgment has demonstrated the reinforcement of one of the foundational values of the European Union, namely, the supranational protection of rule of law, by ensuring that a reasoned proposal of the European Parliament under Article 7(1) TEU is amenable to judicial review. In this respect, the case acts as a logical continuation of the ‘rule of law’ tradition laid down in the seminal judgment Les Verts (Case 294/83), that strengthens the position of the principle in the constitutional framework of the EU. The Court of Justice articulated the status of one of the crucial elements of Article 7(1) TEU, a reasoned proposal of the Parliament, that initiates the start of proceedings under Article 7(1) TEU, following several steps.
Firstly, the Court explained the role of Article 269 TFEU and its relevance for determination of a possibility of judicial review of a reasoned proposal of the Parliament. Whereas the Court has discussed the grounds of review in Article 269 TFEU in its case law before, namely, referring to judicial review of only the ‘purely procedural stipulations in Article 7 TEU’ (T-337/03, making reference to paragraph (e) of the repealed ex Article 46 TEU in the Nice Treaty), the ratio legis of Article 269 TFEU has been addressed by the Court of Justice for the first time. The Court, employing different modes of interpretation, came to the conclusion that Article 269 TFEU is to be interpreted narrowly (C-650/18, paragraphs 31-34), ensuring that the acts, referred to in Article 269 TFEU, would be amenable to limited judicial review under this Article, whereas other acts, adopted in the course of proceedings of Article 7 TEU, could be possibly subject to judicial review under Article 263 TFEU. In this aspect, the Court coincides with the position of Advocate General (AG) Bobek who referred to Article 269 TFEU as a type of lex specialis (C-650/18, Opinion, point 62), that indicated not a derogation from a general rule, but a guarantee of a possibility of the acts, named in Article 269 TFEU, to be subject to judicial review, that, otherwise, in light of the established case law, could have fallen outside the judicial scrutiny of the Court. The interpretation of Article 269 TFEU, provided by the Court, is exceptionally crucial for enhancement of the procedural facet of the rule of law on the EU level (C-650/18, paragraph 34), that strengthens once again that ‘the EU, based on the rule of law, has established a complete system of legal remedies and procedures designed to enable the Court of Justice of the European Union to review the legality of acts of the EU institutions’ (Les Verts (Case 294/83), Rosneft (C-72/15), ECB and Others v Trasta Komercbanka and Others (Joined Cases C-663/17 P, C-665/17 P and C-669/17 P)). Forfeiting the option to challenge the acts in question would run foul of the very gist of one of the essential components of the rule of law, namely access to justice (Groussot and Zemskova).
Secondly, the Court proceeded to carry out an assessment of the reasoned proposal of the Parliament with regard to its amenability to judicial review in light of the requirements of Article 263(1) TFEU. The Court, highlighting the essential role of the Parliament in proceedings under Article 7 TEU, indicated that a reasoned proposal of the Parliament constitutes an act that reflects a definitive position of the EU institution and produces immediate binding legal effects from the time of its adoption, hence such an act is amenable to judicial review under Article 263 TFEU (C-650/18, paragraphs 41-49). The Court then turned to the pleas, raised by the applicant, and indicated that the Court would determine only the pleas, referring to procedural rules laid down in Article 7 TEU, namely the first and the third plea (the latter one perceived as an illustration of the infringement of procedural rules in light of the invoked principles), whereas the second and the fourth pleas, lacking any appeal to an alleged breach of procedural rules, were fully rejected. The first and third pleas, alleging infringement of the fourth paragraph of Article 354 TFEU, of Rule 178(3) of the Rules of Procedure and of the principles of democracy and equal treatment are rejected. The Court of Justice rightly held that the Parliament did not infringe the fourth paragraph of Article 354 TFEU, read in the light of the principles of democracy and equal treatment, by not counting abstentions as votes cast when adopting the contested resolution (C-650/18, paragraphs 100-101).
The Procedural Dimension
The Court, while, on the one hand, ensuring its general jurisdiction with regard to acts, adopted in the context of Article 7 TEU, has, on the other hand, circumscribed it by imposing limitations for an annulment action under Article 263 TFEU, applied to acts adopted by EU institutions under Article 7 TEU. The nature of such limitations is explained by the Court through the seminal connection of Article 263 TFEU with Article 269 TFEU, where the former is to be interpreted in light of the latter (C-650/18, paragraph 52). The Court imposed specific conditions for both standing and grounds of review, resulting in the conclusion that an action for annulment under Article 263 TFEU against a reasoned proposal adopted by the Parliament under Article 7 TEU may be brought: (a) only by a particularly specific applicant, namely, the Member State, subject to the proposal in question, and (b) only on the specific grounds, namely, the infringement of the procedural rules referred to in Article 7 TEU (C-650/18, paragraph 59).
Such an interpretation is unique in its nature as it excludes other applicants from judicial review and narrows down the grounds of review to one specific category. In the end, it creates a hybrid version of Article 269 TFEU (standing and grounds for review) and Article 263 TFEU (challengeable acts and time limit). The limitation of the judicial review to solely procedural grounds is not unproblematic. AG Kokott in Pringle for instance noted that: ‘It must first be observed that a restriction on the jurisdiction of the Court of Justice to a review of compliance with procedural requirements cannot, in such terms, be found in the Treaties. That finding is particularly significant given that Article 269 TFEU expressly lays down such a restriction in other circumstances, namely in respect of acts adopted pursuant to Article 7 TEU. Consequently, the Court of Justice may in principle review not only the procedure relating to a decision on a Treaty amendment adopted pursuant to Article 48(6) TEU, but also its content’ (Pringle, C-370/12, Opinion, point 23). Article 269 TFEU itself has been facing criticism due to procedural character of judicial review therein, ‘deemed to be incompatible with the functionality of the ECJ as a constitutional court’ (Eisenhut et al., p.905).
It is also worth remarking that the approach of the Court of Justice in Hungary v European Parliament differs from the position of AG Bobek, who proposed ordinary judicial review under Article 263 TFEU (C-650/18, Opinion, point 73). In his Opinion, the AG also interestingly shows the wide scope of external effects of reasoned proposals on other Member States, EU institutions and nationals of the Member State in question in light of the Protocol (No. 24) on asylum for nationals of Member States of the EU (C-650/18, Opinion, point 105). Besides, legal effects of reasoned proposals are not limited to EU asylum law only, but may have an impact in other areas, such as, for instance, the AFSJ, where the process of the execution of the EAW can be seriously affected due to existence of a reasoned proposal under Article 7 TEU, as indicated in another ‘rule of law’ judgment LM (C-216/18 PPU) (C-650/18, Opinion, points 111-114). Whereas the Court explained its procedural approach, referring to the interpretation in light of Article 269 TFEU, it can be clearly seen that the Court views application of an ordinary regime of Article 263 TFEU as creating disbalance in proceedings under Article 7 TEU, by undermining the effectiveness of Article 269 TFEU (C-650/18, paragraphs 51-59).
While it would take some time before the created construction would be put to the test, one cannot ignore that a clear process-oriented direction of judicial review, put forward by the Court, not only limits the scope of judicial review but also sends a very procedural picture of the EU system of constitutional adjudication. Looking at the broader adjudicative context of the Court of Justice, this procedural dimension is nothing new under the sun. Process-oriented review is a common practice in the adjudication of the principle of subsidiarity. This is done to accommodate the balance of power with the Member States and to show respect and deference to the EU institutions in a spirit of judicial pusillanimity. The overall aim is not to second-guess the policy choices of the EU institutions. Some may question the absence of substantive judicial review from the Court of Justice as a mark of constitutional weakness; others may praise the process-oriented review of the Court of Justice of reasoned proposals adopted under Article 7(1) TEU as a mark of process federalism and as clearly reinforcing the rule of law. Substantive judicial review vs. procedural judicial review: this debate – reminiscent from the Tribe v Ely debate in the US – is only starting in Europe.
Xavier Groussot is Professor of EU Law at the Faculty of Law at Lund University. He is working this year on different research projects related to the issue of the rule of law, the EU Charter of Fundamental Rights and the concept of procedural federalism.
Anna Zemskova is PhD Candidate at the Faculty of Law at Lund University. She is one of the authors of ‘The Rise of Procedural Rule of Law in the European Union – Historical and Normative Foundations’, a chapter forthcoming in A Bakardjieva Engelbrekt et al., 30 Years After the Fall of the Berlin Wall: Rule of Law in the European Union (Hart Publishing, Oxford, 2021).