Under the pretext of the “rule of law”, Brussels is trying to appropriate powers that are not its own

13 October 20213 years ago babelfish

Yesterday we saw the ruling of the Polish Constitutional Court . Brussels will certainly respond with an infringement procedure, the content of which we can imagine here.

The protests in Warsaw, in fact (made over the years and on multiple occasions, most recently including the threat to suspend participation in European funds and the non-approval of the Polish Recovery Plan ), all date back to four infringement procedures. With the latter, Warsaw was accused: ( 1 ) of having lowered the retirement age differently for female (60) and male (65) judges, assigning the power to extend it to the Minister of Justice, but without a fixed term for the decision and on the basis of vague criteria and therefore at the discretion; (2) of having then lowered the retirement age (65 years) equally for men and women, but assigning to the President of the Republic the power to extend it without a fixed term for the decision and on the basis of vague and therefore discretionary criteria, having heard the opinion of the local CSM but not binding, in addition, since this CSM is made up of judges all appointed by the Parliament; (3) to have submitted the judges to a Disciplinary Chamber, appointed entirely by the aforementioned non-independent CSM as it is composed of judges all appointed by Parliament, as well as to allow it to review the content of the judges' decisions also with reference to any requests for preliminary rulings to the European Court of Justice (CJEU); (4) to have then assigned this power to request a preliminary ruling to the CJEU (in the matter of the independence of the judiciary), exclusively to a new section of the Supreme Court, as well as to have registered participation in political activities as a disciplinary offense and requested judges to disclose information such as participation in social media or, membership in NGOs.

Just the lowering of the retirement age to different degrees for female judges (60 years) and men (65 years), was enough for the Commission to affirm that "the country's judiciary is now under the political control of the majority in power", " executive and legislative were systematically enabled to interfere politically in the composition, powers, administration and functioning of the judicial branch ”, in short, Poland would already have found itself“ in the absence of judicial independence ”.

All this matters to the Commission, as it would be in violation of the 47 CDFUE of the Charter of Fundamental Rights of the European Union (or the Charter of Nice): “every person has the right to have his case examined… by an independent and impartial judge ”.

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Unfortunately , this Charter does have "the same legal value as the Treaties", but "the provisions of the Charter do not in any way extend the competences of the Union defined in the Treaties" ( 6 Teu ). This means that the Commission cannot activate Article 47 of the Charter directly, but must find an article of the actual Treaties that refers to it.

Several attempts have been made. The 157 TFUE , which imposes "equal pay" between men and women, to oppose the lowering of the retirement age of the judges; but without much success, since the Commission itself found itself opposing the lowering of the retirement age for both sexes. Or the 7 CDFUE and 8 CDFUE , which impose "respect for private life" and "protection of personal data"; but thereby absurdly implying that the active political commitment of a magistrate must remain unknown. Or the 267 TFEU which assigns to any “jurisdiction” the right to ask the CJEU to give a preliminary ruling on the interpretation of the Treaties; but without much construct, given that at most he would obtain to subtract this particular part of the activity of a judge from the interest of a disciplinary procedure.

19 TUE offered a greater construct, which assigns to the Member States the obligation to "ensure effective judicial protection in the sectors governed by EU law ". Now, the Commission and the CJEU have taken possession of it: bypassing the limitation to the sectors governed by EU law with the argument that the national courts also deal with European law; and arguing that this protection can only refer to 47 CDFUE , apodictically and although the Treaties do not mention this link. In short, the original " effective judicial protection in the areas governed by EU law" of the Treaties, has become " an independent and impartial judge in any area governed by national or EU law" … this without the Treaties being changed and by sanction of the CJEU alone.

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Unfortunately, it is an usurpation: the Union usurps powers that are not its own. Thanks to the CJEU, which has pushed the interpretation of the Treaties to the point of overturning their meaning, inventing Treaties that do not exist. Therefore the Union, like all usurpers, then sought a way to legitimize its usurpation. It is no longer enough to invoke, as Commissioner Gentiloni does , the principle of "recognition of the prevalence of the Court of Justice": it cannot be enough because the latter has made it too big.

The way chosen was to invoke the values on which the EU is founded and of which the Treaties merely enunciate ( 2 Tue ) and, among them, in particular the value of the rule of law . Thus Sassoli can say that "the supremacy of the European Treaties is indisputable" but referring to the "fundamental principles": the supremacy of the fundamental principles contained in the European Treaties is indisputable , he is saying. So the Commission concedes that "it is up to Poland to identify its own model for its own judicial system" … dear grace … "but it should do so in a way that respects the rule of law ". Thus the CJEU specifies that "the value of the rule of law has been concretized since 19 Thu " … again, without the Treaties being changed and only by sanction of the CJEU.

Thus, an originally limited rule (both in the sense that it does not specify what effective judicial protection means, and in the sense that it exclusively concerns the sectors governed by EU law) has found universal application (the values apply in every situation). This offered the Commission an excuse to meddle in business outside the areas governed by EU law and, in general, to meddle with national political influence on effective judicial protection .

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Unfortunately , no one knows what this value of the rule of law is. It is the Commission itself that peacefully admits that, of the value of the rule of law , the Treaties contain only the mere enunciation. The obstacle is big. And the Commission imagined to overcome this by relying on a 2011 report of the so-called Venice Commission of the Council of Europe: a report intended to give meaning to the term " rule of law " as contained in the English version of its Statute, as well as in the preamble of its European Convention on Human Rights (ECHR).

In attempting this operation, the Commission faces two obstacles. The first, English is only one of the two languages in which the official text of the Statute and ECHR is drawn up: the second is French and the French text uniquely reads " prééminence du droit ", humbly followed by the " pre-eminence of law " of unofficial text in Italian. Since 2007, a rapporteur to the Council of Europe noted that exclude that the English rule of law text meant rule of law. By inducing the Parliamentary Assembly of the Council of Europe to vote a resolution , in which it prided itself on establishing "the correct translation of the rule of law with the French prééminence du droit " and indeed declared its translation into the rule of law as potentially a harbinger of a formalistic interpretation and therefore “contrary to the very essence of the rule of law / prééminence du droit ” which “are material normative concepts”. After that, he referred everything to the Venice Commission, which then attributed meaning to the term rule of law in the sense of the primacy of law .

On the contrary, in the EU Treaties, the official English text " rule of law " is reflected in the French " état de droit ", in the official Italian text " rule of law ", in the official German text " Rechtsstaatlichkeit " (statehood of law), and so on for a total of 23 official texts. Consequently, the Commission's claim to interpret the rule of law / rule of law on the basis of an interpretation of the rule of law / rule of law appears arbitrary.

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Even if the Commission could ever overcome this first obstacle, it would be faced with a second. The Venice report did include, among "the necessary elements of the rule of law ", a formula taken up by the Commission: "access to justice before independent and impartial courts". But then he added a clarification that the Commission does not resume: "independence means that the judiciary is free from external pressure and is not controlled by the other branches of government, in particular by the executive branch ", then extending the same indication to the public prosecutor, "which it is also to a certain extent autonomous from the executive ”. But not only that, even a subsequent " list of criteria on the rule of law ", adopted by the Venice Commission in 2016, returned to specify that "justice must be independent. Independence means that it is not subjected to any political influence or manipulation, especially emanating from the executive ”.

It is therefore clear that by rule of law the Venice Commission meant courts independent from the executive power , not necessarily from the legislative power. On the contrary, with regard to disciplinary councils, it was allowed that they are even appointed by the executive and only it was specified that "the combination of other governmental powers must not place a threat or undue pressure on the members of the council and on the judiciary as a whole. ". In other words, the Venice Commission did not at all claim that parliaments cannot appoint disciplinary councils.

Thus, it is not clear how the Commission and the CJEU can base their objections to Poland: both to the legislative reform of the retirement age decided by Parliament, and to the legislative appointment of the judges of the Disciplinary Council.

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Ultimately, by failing to hold the value of the rule of law , the Commission also lacks the excuse to meddle in business outside the sectors governed by EU law and, in general, to meddle with national political influence. on effective judicial protection .

Therefore, Brussels has clumsily tried to remedy, providing itself a definition of the rule of law and violation of the rule of law , contained in the " regulation on a general regime of conditionality for the protection of the Union budget" (as seen on Atlantico ). This definition, however, is devoid of normative references in the Treaties, therefore sufficient in itself, therefore self-founding, as if it were a modification of the Treaty.

Unfortunately , this is absolutely not in his powers. The EU is not a federation, but an international organization created by the states with the treaties: the powers that the states have not given to the EU, the EU does not have. The EU cannot modify the Treaties, only the States can: the States are the masters of the Treaties .

If Brussels really wants to meddle in Polish affairs, it must first bring home a revision of the Treaties. A revision that grants it powers that it does not have today. A revision that will have to obtain the unanimous consent of all the Member States, therefore also of Poland. Good luck. Meanwhile, Poland is right and the EU is wrong, rotten.

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The issue of the dispute, therefore, is not "judicial independence" or the "rule of law" . The theme of the dispute is the innovation of the Treaties without modifying the Treaties: founding a new legal regime … independent of the Treaties and, therefore, founded on nothing. Exactly as it is in the parallel case of " LGBT rights " in Hungary (see Atlantic ). Alessandro Mangia sees it well. This is shown plastically by the editorial in yesterday's Corriere , in which Paolo Lepri invokes the existence of phantom duties ("to welcome in a careful and controlled way … but also not to leave others alone to bear the impact of the damned of the earth") , which are not contained in the Treaties but which Lepri imagines he can impose on Poland on the basis of a "spirit" and "power relations": that is, the values on which the Union is founded and the illegal regulation we have seen. Consequently, in the world contrary to the Corriere , the game in progress would be "between the EU and its rebel members, first of all Poland" which intends to "undermine the European foundations from within" … as if it were not Brussels and Luxembourg to invent a new treaty, despite having no power. As well as the reverse is the world of the Republic , where Lucio Caracciolo can write that Poles and Hungarians do not "adhere from the heart to the partial transfers of sovereignty that we Euro-Westerners agreed " … evidently he knows a secret treaty.

This explains the crass superficiality with which the Italic oligarchy trombonizes the rule of law : suffice it to quote Massimo Giannini ("rule of law, that is the basic principles on which not only us Europeans but we Westerners, since the Pilgrim Fathers signed the Charter of Mayflower before landing on the shores of the New World "), Mario Monti (" the moral and legal principles on which our and, we would like, their Europe "), Paolo Lepri himself (" the values … which are the basis of its existence and which have brought peace, harmony and well-being in the past decades "). To all of them, the fate of the Polish judges (as well as that of the Hungarian LGBTs) matters as the blacksmith cares about the welding machine and the plumber cares about the wrench.

The post Under the pretext of the "rule of law", Brussels is trying to appropriate powers that are not its own appeared first on Atlantico Quotidiano .

This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/con-il-pretesto-dello-stato-di-diritto-bruxelles-cerca-di-appropriarsi-di-poteri-non-suoi/ on Wed, 13 Oct 2021 03:52:00 +0000.