I guess that most of us become solicitors for practical reasons – we want to help others, we want to make money, we want a job with varied challenges arising from human circumstances, and so on.
Yet one of the most important court decisions from last week showed that lawyers are no different to mathematicians or philosophers or even artists, in that we float in a world of unknowable and ungraspable abstractions, and not in the concrete facts we suppose. As an example, we use a phrase like ‘the rule of law’ nearly every day, and yet no one really knows its meaning, despite it underpinning our working life.
The case in question was the decision before the Court of Justice of the European Union (CJEU) on whether the EU regulation, which allows the EU to deduct payments owing to countries such as Hungary and Poland because of breaches of the rule of law, is compatible with the EU treaties. If you follow the news, you will know the outcome: the CJEU gave the regulation its OK and money can now be withheld.
The decision in itself does not matter to us since we have third-country status. But the CJEU’s discussion of the meaning of the rule of law is of interest to every lawyer.
Interestingly, the regulation in question (Regulation 2020/2092) defines the rule of law, which is an unusual clause in any regulation, and says it includes: principles of legality; a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of 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.
These criteria are to be understood in conjunction with the EU’s other values, such as freedom and democracy.
In addition, in finding a breach of the rule of law, the European Commission must be objective, impartial and fair, and must consult a range of sources, not only the case law of the CJEU but also the work of international organisations.
One of the specific publications which the commission is instructed by the regulation to consult is a 2016 study published by the Venice Commission, called ‘Rule of law checklist’. The Venice Commission is the Council of Europe’s advisory body on constitutional matters. It provides legal advice to its member states and, among other things, helps states that wish to bring their legal and institutional structures into line with European standards on the rule of law.
The checklist is an invaluable document. For instance, the seven principles just quoted from the EU regulation come almost word for word from it.
Before speaking more of the checklist, it is worth noting that the UK had a great role in its creation. In 2012, the much-derided coalition government then in power was also one of the leading sponsors of the conference that directly led to its drawing up.
And now we come to the point. The CJEU was obliged to examine the concept of the rule of law in some detail, because Hungary claimed that there was no legal certainty in the regulation, and legal certainty is obviously one of the very principles underpinning the rule of law. It claimed that there was no way that a government could determine in advance exactly what was and what was not in breach of the rule of law.
The CJEU conceded that several elements of the checklist’s concept of the rule of law do not actually provide a definition of the concept, and are themselves theoretical categories and principles, which may in turn be subdivided into several other principles. In addition, the checklist is not exhaustive and cannot be converted into rules.
So, there we have it. We are not standing on firm ground at all, but, as I said at the beginning, are at sea among shifting and amorphous concepts that cannot be grasped in our hands, but only guessed at, sketched and imagined.
Of course, courts are required to come to practical decisions all the same. That is why courts exist. And so the CJEU decided that the Hungarian claim should be rejected, on the basis that there is extensive case law on the rule of law, together with common values recognised and applied by countries in their own legal systems, stemming from a concept that the member states share. In other words, Hungary was in a position to determine with sufficient precision the essential content and the requirements flowing from the principles.
But the shifting principles and unknowable concepts of the rule of law remain, surrounding us even while we are dealing with the most concrete circumstances and challenges in our daily activities.
Jonathan Goldsmith is Law Society Council member for EU & international and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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