Rule of Law in the European Union
8th Annual Lecture at Turku Law School 14.10.2019
President Kari Kuusiniemi, the Supreme Administrative Court
Ladies and gentlemen, it is not only an honour to be invited to give this 8th Annual Lecture, considering the prominent speakers in the previous years. It is a great personal pleasure for me to return to Turku where I was teaching environmental law from 1996 to 2002. However, in 1999 I got a chance to make an excursion to the Supreme Administrative Court as justice for a fixed period of time. I was excited and curious to see the work of the court from inside and deepen my skills in environmental law by e.g. taking part in the decisions concerning the Natura 2000 network. Then I returned to the university for some time, but, to my great astonishment, I noticed that I applied for a permanent position of justice. To my astonishment yes: Turku Law faculty was a fantastic place to research and teach, with great colleagues, and being a professor had always been my dream. I never thought to become a judge, but here I am after some 20 years at the court. Life is strange.
In the popular TV show format ”Have I got news for you” (in Finnish: Uutisvuoto) one of the tasks for the competitors was always a rebus: who or what depicted in the following images does not belong in the same group. Here you see some photos linked to current issues: ASAP Rocky, a rap artist, Donald Trump, the president of the United States, Iceland, one of the Nordic countries, Victor Orban, the prime minister of Hungary, and Finland, the current holder of EU Presidency.
There may be several possible answers or approaches, but, obviously, the only right answer is ASAP Rocky. He is the only one who has not been alleged of violating the rule of law. He has only been convicted for assault in Stockholm. Donald Trump, in turn, showed complete ignorance of the rule of law by demanding that the Swedish prime minister should intervene in the criminal procedure against ASAP Rocky aka Rakim Mayers. Prime minister Orban has been accused of violating the rule of law in his country, and he has replied that the rule of law is not respected in Finland. Iceland then, you will hear later.
The concept of the rule of law has emerged in public debate, political analyses and legal discourse in the past few years. The concept itself, is, of course, not novel, but its importance has grown recently. In a web dictionary, rule of law has been defined as the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.
In the Finnish Constitution the concept can be found in Section 2 (Democracy and the rule of law):
”The powers of the State in Finland are vested in the people, who are represented by the Parliament. Democracy entails the right of the individual to participate in and influence the development of society and his or her living conditions. The exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed.”
The Finnish parliamentary democracy, like most liberal, constitutional democracies, is based on ”trias politica”, the montesquieuan separation of powers between the legislative (parliament), the executive (government and administration) and judiciary (courts of law). It is a system based on checks and balances, as they say in the US.
However, today it is most often admitted that the rule of law is not a merely formal concept, but it also has some substantive content. Hence, the rule of law is a value-based ideal attached to democracy and respect for human rights. True: the concept leaves a wide margin of appreciation and contains tensions, but it is still a legally relevant concept, as we learn later on.
Recently, rule of law has proven to be a topical concept. In the debate between Hungary and Finland, as the holder of EU Presidency, several Hungarian representatives have criticized the unclarity of the concept and put forward that it is a mere political concept without a precise legal content.
Venice Commission (European Commission for Democracy through Law) has in 2016 adopted a rule of law checklist. According to the publication, the rule of law is a concept of universal validity. The rule of law is one of the founding values that are shared between the EU and its Member States. The core elements of the concept are 1) legality, including a transparent accountable and democratic process for enacting law, 2) legal certainty; 3) prohibition of arbitrariness; 4) access to justice before independent and impartial courts including judicial review of administrative acts; 5) respect for human rights; and 6) non-discrimination and equality before the law. In the Finnish EU Presidency Programme, also separation of powers has been mentioned as one of the elements of the rule of law.
The former president of the Finnish Supreme Administrative Court, Dr. Pekka Hallberg has defined the key elements of the rule of law as follows: 1) legality, 2) separation of powers, 3) protection of fundamental rights, and 4) rule of law as a functional entity. These four corners depict a house built on a solid ground, as his almost poetic expression goes. He underlines the connections between law, democracy and openness. There is no democratic participation without functioning rule of law and legal protection. On the other hand, there is no balanced legal development without democracy. Democratic participation presupposes access to information and publicity. On the basis of his findings I would like to underscore the importance of common value basis and social capital as the bedrock of well-functioning society based on trust – trust by people on the institutions and trust between different population groups.
Freedom of speech (or freedom of expression) is a basic political right. There cannot be free press (media) without freedom of expression. Without free media there is no pluralistic societal discourse which enables the citizens to make well-informed political choices.
The common values of the Union are highlighted in Article 2 of the EUT:
“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, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
According to Article 49, any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.
Article 6 of the Treaty reads as follows:
The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. The Union shall respect the national identities of its Member States. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
Article 7 of the Treaty provides a procedure to react if these values are violated by a Member State (sometimes called a nuclear weapon):
“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.”
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.”
By Article 19 of the Treaty, the Court of Justice of the European Union (CJEU) shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Article 47 of the Charter of the Fundamental Rights, states as follows:
”Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. …”
One of the key themes of the ongoing Finnish EU Presidency is to strengthen the rule of law and react on violations firmly. The rule of law is the cornerstone of all modern constitutional democracies. It is also one of the key values enshrined in the TEU, and all the member states agreed to be bound by it when joining the EU. Violations of the principle of the rule of law undermine the reliance of citizens and companies on their rights and also diminish member states’ trust in each other’s legal systems. Failure to fully implement this principle within the EU calls into question not only the public acceptance and unity of the EU, but also its external credibility, it is emphasized in the Finnish Precidency Programme.
The goal is to find better and more efficient ways to ensure respect for the EU’s common values in the member states and develop the rule of law dialogue in the Council. It is proclaimed that Finland will pursue the negotiations on making the receipt of EU funds conditional on respect for the rule of law.
Legality, access to justice, fair trial before an independent and impartial court etc. are important factors of rule of law. Hence, it is no wonder that judiciary is under constant threat in countries where principles of rule of law are questioned by those in power. From the perspective of a judge, it is interesting that several court cases deal with judges´ position at supreme instances. Maybe it is not a thing to boast about, but it is a sign that the Courts’ role is so significant that the establishment has chosen to attack the Supreme Courts in order to maintain the country under their control.
The courts´ independence can be infringed e.g. by lowering the compulsory retirement age, having an impact on appointment of judges, terminating the court presidents´ term of office, resigning judges or performing disciplinary actions on them, structural changes in the court system, or cutting of the resources of the courts.
There are several important cases of the CJEU and the European Court of Human Rights (ECHR), in which these methods have been disapproved.
Two well-known decisions concern judges´ retirement age in Hungary and Poland, the countries which have been mostly under scrutiny in this respect. However, I do not want to blame only these two countries; there are problems to be discussed also in other European countries. We also remind that murders of journalists investigating corruption of politicians have taken place in Slovakia and Malta, and the Romanian government´s move to indict the former anticorruption prosecutor on corruption charges, which prohibited her from travelling abroad without consent or working in her post at the Prosecutor General´s Office. She was also banned from speaking to the media. Worrying news have also been heard from the Bulgarian judiciary.
The first case I refer to is C-286/12, Commission v Hungary. By its application, the European Commission sought a declaration that, by adopting a national scheme requiring the compulsory retirement of judges, prosecutors and notaries on reaching the age of 62 – which gives rise to a difference in treatment on grounds of age which is not justified by legitimate objectives and which, in any event, is not appropriate or necessary as regards the objectives pursued – Hungary has failed to fulfil its obligations under Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Under the previous law the age limit was 70.
By the legislation at issue, which entered into force on 1.1.2012, firstly, all judges who had reached the age of 62 before that date were obliged to retire on 30.6.2012, that is to say, after a period of six months, and those who reach that age between 1.1. and 31.12.2012 were required to retire on 31.12.2012, that is to say, after a period which in no case will be greater than one year and which, in the majority of cases, will be less than one year.
In those circumstances, the persons concerned are obliged to leave the labour market automatically and definitively without having had the time to take the measures of an economic and financial nature, that such a situation calls for. Firstly, their retirement pension will be, as was stated during the hearing, at least 30% lower than their remuneration and, secondly, the cessation of functions does not take into account contribution periods, which does not therefore guarantee the right to a pension at the full rate.
On grounds stated in the judgment, the Court concluded that the provisions at issue are not necessary to achieve the objective of standardisation invoked by Hungary.
As regards the government´s objective purporting to establish a more balanced age structure facilitating access for young lawyers to the professions of judge, etc. and guaranteeing them an accelerated career, it must be held that, as noted by Hungary, the lowering of the age-limit for compulsory retirement will result in the vacation of numerous posts which will be liable to be occupied by young lawyers, as well as in the acceleration of the rotation and renewal of the personnel within the professions concerned.
However, such apparently positive short-term effects are liable to call into question the possibility of achieving a truly balanced age structure in the medium and long terms.
While, in 2012, the turnover of personnel in the professions concerned will be subject to a very significant acceleration due to the fact that eight age groups will be replaced by one single age group, namely that of 2012, that turnover rate will be subject to an equally radical slowing-down in 2013 when only one age group will have to be replaced. In addition, that rate of turnover will slow down progressively as the age-limit for compulsory retirement is raised progressively from 62 to 65, leading, in fact, to a deterioration in the prospects for young lawyers of entering the professions of the judicial system.
In those circumstances, the contested national provisions gave rise to a difference in treatment which did not comply with the principle of proportionality and that, therefore, the Commission’s action must be upheld.
In case C 619/18 (grand chamber judgment 24.6.2019), Commission v Poland, the European Commission in its action, put forward two complaints alleging infringement of the obligations on the Member States under the combined provisions of Article 19(1) TEU and Article 47 of the Charter.
By its first complaint, the Commission alleged that the Republic of Poland failed to comply with those obligations inasmuch as the New Law on the Supreme Court was in breach of the principle of judicial independence and, in particular, of the principle of the irremovability of judges, provided that the measure lowering the retirement age of judges of the Supreme Court was to apply to judges in post who were appointed to that court before 3 April 2018, the date on which that Law entered into force. By its second complaint, the Commission alleged that Poland failed to comply with those obligations by granting under that Law to the President of the Republic, in breach of the principle of judicial independence, the discretion to extend, twice, each time for a 3-year term, the period of judicial activity of judges of the Supreme Court beyond the newly fixed retirement age.
The Commission submitted that, to meet the obligation imposed on them by Article 19(1) TEU to provide for a system of legal remedies sufficient to ensure effective legal protection in the fields covered by Union law, the Member States are required to ensure that the national bodies which may rule on issues in relation to the application or interpretation of EU law meet the requirement in respect of judicial independence, that requirement being a key part of the fundamental right to a fair trial as guaranteed by Article 47 of the Charter.
That requirement concerns not only the way in which an individual case is conducted, but also the way in which the justice system is organised. The consequence of a national measure affecting the independence of the national courts is that an effective legal remedy is no longer guaranteed, when those courts apply or interpret EU law.
The Republic of Poland, supported in this connection by Hungary, submitted that national rules such as those challenged by the Commission in the present action cannot be the object of a review in the light of Article 19(1) TEU and Article 47 of the Charter.
In the operative part of the judgment the Court declared that, first, by providing that the measure consisting in lowering the retirement age of the judges of the Supreme Court is to apply to judges in post who were appointed to that court before entering into force of the new legislation and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.
Of note is also the grand chamber judgment in case C-216/18 PPU concerning European arrest warrant. The case was referred to the EUCJ by the Irish High Court and the warrants were issued by Polish courts.
The Court replied to the preliminary reference as follows: Where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by Article 47 of the Charter, on account of systemic or generalized deficiencies so far as concerns the independence of the issuing Member State’s judiciary. The authority must determine, specifically and precisely, whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the framework decision, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State.
It may be mentioned that Article 7 TEU procedure has been initiated against Poland in December 2017 and against Hungary in September 2018. Hungary, in turn, has invoked an action against the European Parliament because of the procedure (C-650/18).
In its well-known grand chamber judgment (Baka v Hungary, 23.6.2016) the European Court of Human Rights declared that Hungary had violated Articles 6(1) and 10 of the Convention by a premature termination of the Supreme Court president´s term.
The Court´s reasoning includes, inter alia, the following:
In the case, the premature termination of the applicant’s mandate as President of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers. This lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law is doubtful. The Court considered that Hungary impaired the very essence of the applicant’s right of access to a court.
The applicant complained that his mandate as President of the Supreme Court had been terminated as a result of the views he had expressed publicly in his capacity as President of the Supreme Court and the National Council of Justice, concerning legislative reforms affecting the judiciary.
The impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in the exercise of his right to freedom of expression. He expressed his views on the legislative reforms at issue in his professional capacity as President of the Supreme Court and of the National Council of Justice. It was not only his right but also his duty to express his opinion on legislative reforms affecting the judiciary, after having gathered and summarised the opinions of lower courts. The applicant also used his power to challenge some of the relevant legislation before the Constitutional Court and used the possibility to express his opinion directly before Parliament on two occasions, in accordance with parliamentary rules. The Court therefore attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were likely to have an impact on the judiciary and its independence. It refers in this connection to the Council of Europe instruments, which recognize that each judge is responsible for promoting and protecting judicial independence and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system.
The applicant had expressed his views and criticisms on constitutional and legislative reforms affecting the judiciary, on issues related to the functioning and reform of the judicial system, the independence and irremovability of judges and the lowering of the retirement age for judges, all of which are questions of public interest. His statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State.
Although the applicant remained in office as judge and president of a civil division of the new Kúria, he was removed from the office of President of the Supreme Court three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. This can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the irremovability of judges, which is a key element for the maintenance of judicial independence. It appears that the premature removal of the applicant from his position as President of the Supreme Court defeated, rather than served, the very purpose of maintaining the independence of the judiciary.
Furthermore, the premature termination of the applicant’s mandate undoubtedly had a “chilling effect” in that it must have discouraged not only him but also other judges and court presidents in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary.
Very recently other cases concerning dismissal of court presidents before expiry of their term of office without proper reasoning have been communicated (e.g. Broda v Poland).
In the case of Guðmundur Andri Ástráðsson v. Iceland (the case has been referred to the grand chamber), the ECHR held in its judgment of 12.3.2019 by votes 5-2 that Iceland had violated Article 6(1) of the Convention as regards the right to a tribunal established by law.
The applicant complained that his criminal charge was determined by a court which was lacking in independence and impartiality and was not established by law. A new court within the Icelandic judicial system, the Court of Appeal (Landsréttur), was established on 1.1.2018. According to law,15 judges were to be appointed to the new Court. The applicant alleged that a judge, A.E., in the newly constituted Court, which convicted him of a criminal offence, along with two other members of a judicial panel of the court, was not appointed in accordance with domestic law.
The applicant was convicted and sentenced at first instance by a District Court. On appeal the judgment was upheld by a panel of three judges in the newly established Court of Appeal, including A.E.
The Supreme Court of Iceland had ruled in the applicant’s case that certain aspects of the procedure in the appointment of the judge in question had not been in accordance with domestic law. However, the Supreme Court dismissed the applicant’s request for the quashing of the judgment.
The Supreme Court had held in two judgments, in closely related judicial proceedings, that the Minister of Justice had violated the Administrative Procedures Act when she decided to remove four candidates from the list presented to her by the Evaluation Committee and include four other candidates, among them A.E., in her proposal to Parliament. Two candidates who had been removed from the list instituted annulment and compensation proceedings before the national courts and were granted damages for personal injury inflicted on them by the Minister of Justice.
The Supreme Court found that the procedure in Parliament had also violated the new Judiciary Act, as Parliament had not followed the procedure stipulated by that provision by voting separately on each of the fifteen candidates proposed by the Minister of Justice, but had decided rather to vote on the proposal as a whole.
Hence, the Court attached significant weight to the fact that the Supreme Court, the highest judicial organ in the national judicial system, has already found in three judgments, one of which was rendered in the applicant’s case, that the above-mentioned rules of domestic law were violated in the process of appointing four particular judges to the Court of Appeal, including A.E. The Court has no basis to call into question the Supreme Court’s findings as regards its interpretation of domestic law and must therefore also conclude that the appointment of A.E. was based on a process which violated the applicable rules of national law in force at the material time.
In accordance with the general principles in the Court’s case-law, the Court had to determine whether these violations of domestic law in the appointment of A.E., as a judge of the Court of Appeal, were, viewed as a whole, “flagrant” and therefore had the result that A.E.’s participation in the panel which determined the applicant’s criminal charge constituted a violation of Article 6(1), her appointment thus not being “established by law” under the Convention.
The Court placed emphasis on the importance in a democratic society governed by the rule of law of securing the compliance with the applicable rules of national law in the light of the principle of the separation of powers. Therefore, the failure of Parliament to adhere to the national rule of separate voting on each candidate, also amounted to a serious defect in the appointment procedure, having an impact on the integrity of the process as a whole, in particular as regards the four candidates selected by the Minister of Justice whereby she departed from the assessment of the Committee. This defect was furthermore compounded by the fact that in the preparation of the proposals submitted to Parliament, the Minister had herself violated the Administrative Procedures Act in failing to sufficiently substantiate her decision to depart from the assessment made by the Evaluation Committee. The Court recalled that the Supreme Court held in its judgments that only by the Minister fulfilling her statutory duties under the Administrative Procedures Act and the general principle of domestic law that only the most qualified candidate should be selected for office could Parliament have sufficiently served its role in the process and taken a position on the Minister’s assessment which departed from the opinion of the Committee as regards the four candidates in question.
The Court concluded that the process by which A.E. was appointed a judge of the Court of Appeal, taking account of the nature of the procedural violations of domestic law as confirmed by the Supreme Court of Iceland, amounted to a flagrant breach of the applicable rules. Indeed, the process was one in which the executive branch exerted undue discretion, not envisaged by the legislation in force, on the choice of four judges to the new Court of Appeal, coupled with Parliament failing to adhere to the legislative scheme previously enacted to secure an adequate balance between the executive and legislative branches in the appointment process. The Minister of Justice acted in manifest disregard of the applicable rules in deciding to replace four of the fifteen candidates, considered among the most qualified by the Committee, by other four applicants, assessed less qualified. The process was therefore to the detriment of the confidence that the judiciary in a democratic society must inspire in the public and contravened the very essence of the principle that a tribunal must be established by law, one of the fundamental principles of the rule of law. The Court emphasized that a contrary finding on the facts of the present case would be tantamount to holding that this fundamental guarantee provided for by Article 6(1) of the Convention would be devoid of meaningful protection.
Concepts like the rule of law, democracy or legal certainty, are imprecise, value-laden notions, which have been called rhetoric balloons (Frändberg). True, rule of law is a political ideal, but in legal terms, as promulgated in the TEU, it is also a normative concept which refers to the characteristics of a desirable legal system.
Even if we must be determined to disapprove violations of the rule of law, we must admit that there are debatable features with regard to the practice of rule of law also in several countries which are considered to be stable parliamentary democracies. These features are skillfully attacked by those EU member states who are accused of infringing the rule of law. I do not even mention the vast number of countries no one regards as states respecting the rule of law.
In Great Britain, as commonly known, there is no written Constitution. The famous Magna Carta from 1215 was adopted to restrict the power of the King. Parliamentary sovereignty is the overarching principle, and parliament may override any judge-made common law. How about the present situation with Brexit and prime minister Boris Johnson, then. A sarcastic comment was circulated in social media recently:
”To be clear what has just happened in Great Britain; unelected prime minister without a mandate from the voting public has asked an unelected monarch to suspend a house that is full of elected representatives because they likely won´t vote in favour of something demonstrably negative for the people they´re elected to represent. The oldest democracy in the world may have just collapsed.”
But the story did not end like that. The independent judiciary showed its power. The UK Supreme Court in its decision 24.9.2019 declared, firstly, that the order (actually: the advice by the Prime Minister to her Majesty) to prorogue the Parliament was justiciable by the Courts, and, secondly, that the prorogation was unlawful.
In Switzerland, believe or not, the judges of the Supreme Court shall, in practice, have a political party mandate, and they even pay a certain sum of their salary to the party!
In the USA, the President in his tweets shows ignorance for the quintessence of the rule of law, despises human rights and equality, attacks the media, etc. The concept of ”gerrymandering” describes undermining of democratic rights by manipulating the electoral districts so that the leading party shall win also the next elections. Did you know where the concept stems from? It was governor Gerry who invented this, and as result of manipulation one precinct looked like a salamander! Certain media houses have openly political agenda. System of funding of the candidates in the elections opens avenues to have a direct impact on the candidates´ actions.
The rule of law checklist of the Venice Commission includes several sub-criteria which can be used as indicators for defining the rule of law. It goes without saying that not only those states fulfilling every single criterion in toto, could be called a rule of law state. However, I would like to underline that the core areas of the concept are well-established, and it is most often unambiguous whether a certain Member State violates the principles of the rule of law or not. It is like defining a dog: even a child learns very soon to understand that there are many very different dog-breeds (from Chihuahua to a Schäfer) and make a difference between a dog and a cat.
Obviously, the criteria of rule of law are manifold, vague and even ambiguous. Every single state has to improve some aspects linked to the ideal of rule of law. However, I am convinced that it is most often unequivocal whether a certain state in a given moment fulfills the most essential criteria of rule of law or not. For sure, a necessary criterion for rule of law is not the existence of a constitutional court.
The Hungarian critic towards Finland has included the – as such true – statement that Finland does not have a constitutional court. The situation, as we know, is the same e.g. in all the Nordic countries and Great Britain. It seems to me that constitutional courts have been created especially in post-communist countries and federal states. But what are the functions of a constitutional court and how does Finland cope with them?
The preventive control of constitutionality of Acts of Parliament is performed by the Constitutional Law Committee of the Parliament. The Committee shall issue statements on the constitutionality of legislative proposals and other matters brought for its consideration, as well as on their relation to international human rights treaties.
According to a well-established practice, the Committee – even though mandated by MPs – sees its role as a quasi-judicial organ, which bases its opinions on its own practice, safeguarded by hearings of prominent experts in constitutional law and the extremely skillful councellors of the Committee.
Repressive control, in turn, is performed by all courts of law, of course in hard cases especially by the Supreme Court and the Supreme Administrative Court. Section 106 declares the primacy of the Constitution: “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution.”
The courts of law perform a concrete norm control function. In this respect, all Finnish courts are constitutional courts. If a court declares a provision in law unconstitutional, it is up to the people-elected parliament as legislator to amend the law so as to meet the requirements of the Constitution. In a constitutional court, in my opinion, we might face juridification of politics and politicization of law.
The key word is trust. Citizens can rely on that also decision-makers are accountable. Businesses can count on that conditions for entrepreneurship are stable and predictable. Internal market within the EU could not exist without trust on the rule of law. It is not a coincidence that in societies where the rule of law prevails, people are happier and more prosperous. In a recent survey “World´s happiest country 2019” the peak trio consisted of Finland, Denmark and Norway out of 156 states. Mutual trust is also an essential principle between EU Member States. Judges must be able to trust the judiciary in other MSs in order to enforce e.g. EAWs or deportations of asylum seekers. Mutual recognition and mutual trust can only exist within a set of common values and a shared destiny. Trust must be earned and then guarded as precious, as Rosas and Armati (EU Constitutional Law, 2018) convincingly put it.
I think professor Sverker Gustafsson, in his presentation to Nordic Supreme Court presidents 22.8.2019, depicted main features of different political systems in a clear and innovative way. He said that democracy is a system with majority governance AND political liberalism. Populism is a system with majority governance WITHOUT political liberalism ja dictatorship a system without majority governance and political liberalism.
Democracy is probably the best possible political system known, despite its obvious problems and shortcomings. However, democracy understood as a simple majority governance is not enough to guarantee all the elements mentioned in Article 2 of the TEU, the value basis of the Union. We remember that in e.g. in 1930´s Hitler´s rise to power was based on formally flawless procedures. Human rights and minority rights guaranteed in international human rights conventions and national constitutions are to be respected irrespective of how big a parliamentary majority would like to run counter of these obligations. Even unconstitutionality of constitutional amendments can be an issue. Do we need so-called eternity clauses to maintain the core principles of the constitution? Free media is a guarantee that people can make their choices in the elections based on reliable, pluralistic information.
Illiberal democracy is not the model the EU is based on. The member states have joined the Union knowing the obligations set forth in the EU Treaty. Critical discussion about the future development of the Union is to be welcomed, but the value basis provided in the EU Treaty must not be undermined or questioned. Rule of law is not a matter of opinion, as minister Tytti Tuppurainen flagged recently. If the rule of law is not respected, the member states, the Commission and the EU Court of Justice must stand up and defend the rule of law.