COMMON MARKET LAW REVIEW
CONTENTS Vol. 51 No. 1 February 2014
Editorial comment: Union membership in times of crisis
1–12
Articles
P. Gragl, A giant leap for European Human Rights? The Final
Agreement on the European Union’s accession to the
European Convention on Human Rights
A. von Bogdandy and M. Ioannidis, Systemic deficiency in the
rule of law: What it is, what has been done, what can be done
A. Alemanno and O. Stefan, Openness at the Court of Justice of the
European Union: Toppling a taboo
P. Ibanez Colomo, Exclusionary discrimination under Article 102
TFEU
G. Wagner, Private law enforcement through ADR: Wonder drug or
snake oil?
F.-X. Millet, How much lenience for how much cooperation? On the
first preliminary reference of the French Constitutional
Council to the Court of Justice
E. Muir, The fundamental rights implications of EU legislation:
Some constitutional challenges
13–58
59–96
97–140
141–164
165–194
195–218
219–246
Case law
A. Court of Justice
Enhanced cooperation as a tool to … enhance integration? Spain and
Italy v. Council, E. Pistoia
Managing decentralized antitrust enforcement: Toshiba, G. Monti
Can competition law repair patent law and administrative
procedures? AstraZeneca, R. Podszun
247–260
261–280
281–294
B. EFTA Court
EU law impact on deposit protection in the financial crisis: Icesave,
M. Hanten and M. Plaschke
295–310
Book reviews
311–344
Survey of Literature
345–366
Publications received
367–374
Aims
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COMMON MARKET LAW REVIEW
COMMON MARKET LAW REVIEW
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SYSTEMIC DEFICIENCY IN THE RULE OF LAW: WHAT IT IS, WHAT
HAS BEEN DONE, WHAT CAN BE DONE
ARMIN VON BOGDANDY* and MICHAEL IOANNIDIS**
Abstract
There is currently a widespread view that the EU is in crisis. This crisis is
not only financial, but, most importantly, it touches upon the founding
principles of the Union as set out in Article 2 TEU. Among them, a
principle that has served as the cornerstone of European integration
already from its early stages seems particularly threatened: the rule of
law. Due to endemic corruption, weak institutional capacities, or
insufficient resources at the administrative or judicial levels, some EU
Member States present so grave deficiencies in guaranteeing the rule of
law that their conformity with basic EU standards is seriously questioned.
Although it is obvious that the EU cannot stay inactive in the face of such
grave deficiencies, it remains unclear how potential responses fit with the
overall EU constitutional framework. This article aims at contributing to
this discussion by developing the concept of systemic deficiency in the rule
of law.
1.
Systemic deficiency as an instance of constitutional crisis
European integration is founded on “the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human rights”.
These founding principles are set out in Article 2 TEU, which lays down the
constitutional profile not only of the EU, but also of the EU Member States.1
* Director, Max Planck Institute for Comparative Public Law and International Law,
Heidelberg. E-mail: [email protected].
** Senior Research Fellow, Max Planck Institute for Comparative Public Law and
International Law, Heidelberg. E-mail: [email protected]. We are grateful for suggestions and
critique to Miriam Aziz, Jürgen Bast, Iris Canor, Claus-Dieter Ehlermann, Blake Emerson, and
the participants of the Brussels Round Table (6 Nov. 2013) and the European Public Law
Theory Seminar at the LSE (7 Nov. 2013).
1. As flows from its systemic interpretation with Art. 7 TEU. See Praesidium of the
European Convention, Draft of Articles 1 to 16 of the Constitutional Treaty, Annex II,
Explanatory Note, 6 Feb. 2003, CONV 528/03, 11; European Commission, Communication
from the Commission to the Council and the European Parliament on Article 7 of the Treaty on
European Union. Respect for and Promotion of the Values on which the Union is Based, 15 Oct.
2003, COM(2003)606, 5.
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CML Rev. 2014
Article 49 TEU requires prospective Members to satisfy those principles, and
Articles 7 and 2 TEU give legal expression to the presumption that current EU
Members have attained and sustain them.
This presumption is essential for the EU legal order. It allows for trust
between all institutions, justifies the recognition of their decisions, legitimizes
EU decision-making, and expresses Europe’s self-understanding as a union of
liberal democracies. As long as the presumption holds, breaches of EU law
can be treated as mere exceptions to institutional normalcy. Isolated
infringements are indeed a normal feature of any legal order and do not
undermine the values and principles on which the European legal order rests.
Lately, however, phenomena have become prominent that, rather than being
isolated problems, appear to be widespread, entrenched, and posing a threat to
the founding principles of Article 2 TEU. We think systemic is the best
qualifier for such deficiencies, as it clearly conveys that they are spread
throughout and affect the entire system.2 Indeed, because the founding
principles are called into question there is currently a sharp apprehension of
constitutional crisis in the European legal area, both at the level of the Member
States and that of the EU.3 Some authors see such a crisis caused by how the
EU has addressed the financial crisis.4 As for the domestic level, Hungary
presents perhaps the most visible case, where the principles of democracy and
fundamental rights seem threatened.5
2. See “systemic”, Merriam-Webster Dictionary < www.merriam-webster.com/dictionary/
systemic>; “systemic”, Wikipedia Online Encyclopedia <en.wikipedia.org/wiki/systemic>.
3. Similarly, Kochenov, “The EU in its most serious crisis ever (and that’s not the Euro
crisis)”, Verfassungsblog, 13 June 2013, available at <www.verfassungsblog.de>. For the
concept of constitutional crisis, see Levinson and Balkin, “Constitutional crises”, 157 Univ. of
Pennsylvania Law Review (2009), 707 (focusing on the American experience with
constitutional crises); Pizzorusso, “La crisi costituzionale italiana”, in 3 Studi in onore di
Gianni Ferrara (2005), 141–150; von Bogdandy and Sonnevend (Eds.), Constitutional Crisis in
the European Constitutional Area. Theory, Law and Politics in Hungary and Romania (Hart,
2014, forthcoming).
4. Kirchhof, “Verfassungsnot!”, Frankfurter Allgemeine Zeitung, 12 July 2012; Seidel,
“Europarechtsverstöße und Verfassungsbruch im Doppelpack”, (2011) EuZW, 241. For a
different view, which we share, BVerfG, 2 BvR 987/10, 7 Sept. 2011: <www.bundesverfas
sungsgericht.de/entscheidungen/rs20110907_2bvr098710.html>.
See
also
Editorial
comments, “Debt and democracy: ‘United States then, Europe now’?”, 49 CML Rev. (2012),
1833.
5. See European Parliament, Resolution of 10 March 2011 on Media Law in Hungary,
P7_TA(2011)0094; European Parliament, Resolution of 16 Feb. 2012 on the Recent Political
Developments in Hungary (2012/2511(RSP)), P7_TA(2012)0053; Council of Europe, Opinion
of the Commissioner for Human Rights on Hungary’s Media Legislation in Light of Council of
Europe Standards on Freedom of the Media, 25 Feb. 2011, CommDH (2011)10; European
Commission for Democracy through Law (Venice Commission), Opinion on the New
Constitution of Hungary, Opinion No. 618/2011, 20 June 2011, CDL-AD(2011)016, paras. 91
et seq.
Rule of law
61
This article will focus on a further dimension: persistent, cross-sector
institutional weaknesses, rather than government heavy-handedness. At issue
is the willingness and ability of some Members to respect and uphold the rule
of law. Many recent reports on Greece, for example, point to serious
insufficiencies in its administrative and judicial apparatus. Similar problems
come to the fore in EU reports on Bulgaria and Romania, pointing at
“structural weaknesses” due to organized crime,6 corruption, or a weak
judiciary.7
These problems have gained an eminently political dimension. In both his
2012 and 2013 “State of the Union” speeches, the President of the
Commission made specific reference to the challenges to the rule of law in
some Member States and called for responses in situations where there is “a
serious, systemic risk to the rule of law”.8 The issue has also been at the centre
of attention of the EU Justice Commissioner,9 the Irish Presidency,10 and the
EU Fundamental Rights Agency.11 A common theme is that neither the
“normal” infringement and preliminary reference procedures nor
the mechanism of Article 7 TEU appear sufficient for addressing systemic
deficiencies in the rule of law. The first instrument is far too case-specific. The
second is also ill-suited: remedies such as capacity building might appear
6. Report from the Commission to the European Parliament and the Council, On Progress
in Bulgaria under the Cooperation and Verification Mechanism, Brussels, 18 July 2012,
COM(2012)411 final, 5.
7. Report from the Commission to the European Parliament and the Council, On Progress
in Romania under the Cooperation and Verification Mechanism, Brussels, 18 July 2012
COM(2012)410 final, 3.
8. Barroso, State of the Union 2013 Address, Plenary Session of the European Parliament,
Strasbourg, 11 Sept. 2013, 10, available at <europa.eu/rapid/press-release_SPEECH-13-684_
en.htm>. See also State of the Union 2012 Address, Plenary Session of the European
Parliament, Strasbourg, 12 Sept. 2012, 10, available at <europa.eu/rapid/press-release_
SPEECH-12-596_en.htm>.
9. Reding, “Safeguarding the Rule of Law and Solving the ‘Copenhagen Dilemma’:
Towards a New EU-Mechanism”, General Affairs Council, Luxembourg, 22 Apr. 2013,
available at <europa.eu/rapid/press-release_SPEECH-13-348_en.htm?locale=en>; “The EU
and the Rule of Law – What next?”, Centre for European Policy Studies, Brussels, 4 Sept. 2013,
available at <europa.eu/rapid/press-release_SPEECH-13-677_en.htm>.
10. See the conference A Europe of Equal Citizens: Equality, Fundamental Rights and the
Rule of Law, organized by the Irish Presidency, Dublin, 09 May 2013–10 May 2013, and
especially the addresses by the Irish Minister for Justice, Equality and Defence, Shatter TD, A
Europe of Equal Citizens: Equality, Fundamental Rights and the Rule of Law, and McCrudden,
Strengthening Institutional Arrangements in Europe to Protect Equality and Fundamental
Rights, Mapping the Landscape: Institutions, Problems, Ideas (on file with the authors).
11. See the Symposium Promoting the Rule of Law in the EU, organized by the European
Union Agency for Fundamental Rights, Vienna, 7 June 2013; final report available at
<fra.europa.eu/sites/default/files/fra-2013-4th-annual-symposium-report.pdf>.
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CML Rev. 2014
more promising than suspending voting rights. This perceived lack of
adequate instruments is indeed an essential element of a crisis.
Against this backdrop, this article will first analyse and specify the
phenomenon in EU constitutional terms. It does so by framing the concept
systemic deficiency in the rule of law (2.). To this end, it defines essential
features of the European rule of law (2.1.), shows the legal function and basis
of the concept (2.2.), and presents criteria for identifying relevant instances
(2.3.). Then, the concept is applied to show its utility (3.). We present a number
of reports on various Member States (3.1.) as well as novel legal instruments
(3.2.) thus probing how the concept helps to map these complex and confusing
constellations. On that basis, the constitutional impact is assessed (3.3.). The
final step addresses the question whether the doctrine risks being too divisive
during a time of already heightened tensions within the European legal
order (4.).
2.
2.1.
Framing the concept
Essentials of the European rule of law
Our framing of the concept systemic deficiency in the rule of law starts with its
last component. The rule of law – along with its German, Greek, Italian,
, État de droit – is one
French rough equivalents Rechtsstaat,
of the most elusive legal concepts. Depending on time, place, and author, its
requirements range from strong public institutions and legal certainty to
substantive justice.12 Here, we do not take side in the dispute between a “thin”,
mainly formal rule of law, and a “thick”, more substantive concept.13 We note,
however, that Article 2 TEU, by distinguishing the rule of
12. The literature on the rule of law is voluminous, see indicatively Grewe and Ruiz Fabri,
Droits constitutionnels européens (Presses Universitaires de France, 1995), pp. 22 et seq.;
Grote, “Rule of law, rechtsstaat and état de droit”, in Starck (Ed.), Constitutionalism,
Universalism and Democracy: A Comparative Analysis (Nomos, 1999), p. 269; Heuschling,
État de droit, Rechtsstaat, Rule of Law (Dalloz, 2002); Krygier, “Rule of law”, in Rosenfeld and
Sajó (Eds.), The Oxford Handbook of Comparative Constitutional Law (OUP, 2012), p. 233.
From a more theoretical perspective, see Tamanaha, On the Rule of Law (CUP, 2004), pp. 7 et
seq.; Waldron, “The concept of law and the rule of law”, 43 Georgia Law Review (2008), 1, 6 et
seq.; Raz, The Authority of Law, 2nd ed. (OUP, 2009), pp. 210 et seq.
13. Craig, “Formal and substantive conceptions of the rule of law: An analytical
framework”, (1997) Public Law, 467; Tamanaha, “The history and elements of the rule of law”,
(2012) Singapore Journal of Legal Studies, 232, 233–236.
Rule of law
63
law from the respect for human dignity, freedom, democracy, and equality,
seems to opt for a rather “thin” understanding.14
In any event, under all understandings, the rule of law requires as a
minimum that the law actually rules. There is only rule of law if the law is
generally and widely observed and is effective in actually guiding the conduct
of persons, both in their official capacities (if they have them) and as private
persons. This is a generally agreed core, minimum element of the rule of law,
whatever else it might additionally require.15 Public authorities must act in
accordance with constitutional norms, including fundamental rights, and
general rules that have been laid down by superior organs, usually a
parliament, and they must actively ensure that the law is observed by private
actors. The rule of law is frustrated not only when courts and administrative
authorities act in ways contrary to the law, but also when they fail to ensure its
observance by private actors, due to unwillingness or the lack of necessary
resources.16 The administrative and judicial apparatus must respect and
uphold the law.
This understanding has underlain European integration from its inception.
The EU is a community based on the rule of law;17 no other concept captures
better its juridical identity. A “community based on the rule of law” might
mean many things, but it requires at least that the effectiveness of EU law is
similar, if not the same, as that of domestic law in the average EU Member
State. The concept of European community of law means that European law
truly rules. To achieve this high level of effectiveness, the ECJ has aimed since
the early 1960s at the juridification of the integration process and at the
autonomization of European law from political and administrative actors.18 It
has developed legal doctrines in numerous decisions aiming at fostering the
observance and implementation of EU law amongst Member States, which
are the most important addressees of Union law. The principle of full
14. Similarly, Hilf and Schorkopf, in Grabitz, Hilf and Nettesheim (Eds.), Das Recht der
Europäischen Union, Kommentar (looseleaf, Beck, 2013), vol. 1, Artikel 2, marg. number 35;
Calliess, in Calliess and Ruffert (Eds.), EUV/AEUV, Kommentar, 4th ed. (Beck, 2011), Artikel
2, marg. number 26. In UPA, however, the ECJ included in the concept of the rule of law the
general principle of fundamental rights protection: Case C-50/00 P, Unión de Pequeños
Agricultores v. Council of the European Union, [2002] ECR I-6677, paras. 38–39.
15. See Craig, op. cit. supra note 13; Allan, Constitutional Justice: A Liberal Theory of the
Rule of Law (OUP, 2001), p. 62; Schulze-Fielitz, in Dreier (Ed.), Grundgesetz, Kommentar, 2nd
ed. (Mohr Siebeck, 2004), vol. 2, Artikel 20, marg. numbers 13, 46; Jowell, “The rule of law and
its underlying values” in Jowell and Oliver (Eds.), The Changing Constitution, 7th ed. (OUP,
2011) pp. 11, 17–18; Krygier, op. cit. supra note 12, 234–235.
16. See Lord Bingham, The Rule of Law (Penguin Books, 2010), p. 8.
17. Seminal, Hallstein, Der unvollendete Bundesstaat (Econ-Verlag, 1969), pp. 33 et seq.;
Case 294/83, Les Verts v. European Parliament, [1986] ECR 1339, para 23.
18. Weiler, “The community system”, 1 YEL (1981), 267.
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effectiveness (effet utile) can be seen as structuring the relationship between
the Union and its Member States more than any other.19 It commits the
Member States to realizing the objectives of a provision of Union law and can
generate the requisite legal consequences in cases of conflict.20 From this
perspective, the most relevant legal concepts are the autonomy of Union law,21
direct effect (of Treaty provisions,22 decisions,23 directives,24 and other legal
obligations25), primacy,26 effective and uniform application by Member
States’ authorities27 as well as State liability.28 These doctrines, aiming at
securing the effectiveness of EU law, also exercise important legitimating
functions. Effectiveness is indispensable for the so-called output legitimacy of
the Union. Moreover, the uniform application of the law is indispensable for
legal equality. These far-reaching legal developments have deeply
transformed29 and constitutionalized30 Europe.
All of these legal instruments were developed to ensure that EU norms
effectively structure social relations despite the absence of EU coercive
mechanisms of enforcement. They remain, however, suspended if the
institutions of a Member State are unwilling or unable to observe the rule of
(domestic) law – be it due to endemic corruption, weak institutional
capacities, or insufficient resources at the administrative or judicial levels. EU
norms are then factually irrelevant in that territory. Deficient rule of domestic
law automatically translates in deficient rule of EU law. The EU as a
community of law, as a Union of law, and hence the entire edifice, crumble.
The importance for the European project of reliable domestic institutions
that are able to give effect to the law is also reflected in the Treaties. According
to Article 197(1) TFEU, the “effective implementation of Union law by the
Member States, which is essential for the proper functioning of the Union,
19. Prechal, “Direct effect, indirect effect, supremacy and the evolving constitution of the
European Union”, in Barnard (Ed.), The Fundamentals of EU Law Revisited (OUP, 2007),
p. 35.
20. In more detail, Accetto and Zleptnig, “The principle of effectiveness”, 11 EPL (2005),
375.
21. Case 6/64, Costa v. E.N.E.L., [1964] ECR 593.
22. Case 26/62, Van Gend en Loos, [1963] ECR 11.
23. Case 9/70, Grad, [1970] ECR 825, para 5.
24. Case 8/81, Becker, [1982] ECR 53, paras. 29 et seq.
25. Case 181/73, Haegeman, [1974] ECR 449, paras. 2 et seq.
26. Case 92/78, Simmenthal v. Commission, [1979] ECR 777, para 39.
27. Joined Cases 205-215/82, Deutsche Milchkontor, [1983] ECR 2633, para 22.
28. Joined Cases C-6 & 9/90, Francovich, [1991] ECR I-5357, paras. 33 et seq.
29. Weiler, “The transformation of Europe”, 100 Yale Law Journal (1991), 2403.
30. Stein, “Lawyers, judges and the making of a transnational constitution”, 75 AJIL
(1981), 1.
Rule of law
65
shall be regarded as a matter of common interest”.31 Moreover, according to
Article 291(1) TFEU, Member States are under the obligation to adopt all
measures necessary to implement EU law. This provision affirms the principle
that Member States are principally responsible for the implementation of EU
law within their territory.32 Article 292(2) TFEU, however, entitles the Union
to adopt implementing measures where “uniform conditions for
implementing legally binding Union acts are needed”. Stressing the need for
uniform application of EU law, this provision also reflects the presumption on
which the EU legal superstructure is based: domestic institutions that meet the
basic requirements of effectiveness in implementing the law.
2.2.
Function and legal basis
We now turn to the component systemic deficiency. The legal function of the
concept of systemic deficiency in the rule of law is to map constellations
where this founding principle is threatened, and to lay the ground for
determining the legality of responding measures. This kind of law for
constitutional emergencies is as delicate as it is indispensable for a liberal
order.33 We do not take the term systemic deficiency out of thin air. It is used
by the ECJ, the Commission, and the Council of Europe to describe critical
situations that call for special remedies. Hence we do not push into
unchartered land, but rather provide a doctrinal reconstruction of current legal
discourse.
2.2.1. Article 7 TEU
Article 7 TEU is of critical importance for this reconstruction. First, it shows
that European responses to developments that threaten one or more of the
values of Article 2 TEU are within the scope of the Treaties. It expresses the
position that the EU is not a lame duck when it comes to its founding
principles. Since triggering the procedure of Article 7 TEU carries an implicit
but serious reproach of a member’s policy, it also supports, in light of the
principle of loyal cooperation, mechanisms that address such developments in
a more constructive and less confrontational way. In this analysis, we will not
discuss what kind of rule of law problems might trigger the mechanism of
31. Following Art. 197(2) TFEU, the Union may support the efforts of Member States to
improve their administrative capacity to implement Union law, but no Member State shall be
obliged to avail itself of such support; see in detail Schütze, “From Rome to Lisbon: ‘Executive
federalism’ in the (new) European Union”, 47 CML Rev. (2010), 1385, 1407 et seq.
32. Schütze, ibid., 1397–1398.
33. Böckenförde, “Der verdrängte Ausnahmezustand. Zum Handeln des Staates in
außergewöhnlichen Lagen”, 31 NJW (1978), 1881, 1883.
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CML Rev. 2014
Article 7 TEU; rather we investigate the guidance it offers for the broader
concept of systemic deficiency.
Most importantly, Article 7 TEU requires a threat of particular gravity and
duration.34 The enforcement mechanisms of Article 7 TEU are not triggered
by any deviation from the rule of law; the threshold is set considerably higher.
In order for the mechanism of Article 7 TEU to be activated, the Council must
determine that there exists a “clear risk of serious breach” of the values of
Article 2 TEU.35 Furthermore, sanctions are only possible when “a serious and
persistent breach” has been substantiated.36
Systemic deficiency is the doctrinal elaboration of this underlying
constitutional choice. Member State autonomy and their primary
responsibility for the values of Article 2 TEU are to be respected. This is
supported by further principles, such as the principle of equality of Member
States, enshrined in Article 4(2) TEU, and the principle of subsidiarity, set out
in Article 5(3) TEU. Accordingly, the rule of law in the domestic realm, as the
other values of Article 2 TEU, remains primarily a domestic issue of
the Member States. But also politically, any EU measure aiming to strengthen
the domestic rule of law must meet very high requirements of legitimacy. This
needs to be reflected in the concept of systemic deficiency.
One could claim that the specific mechanisms laid down in Article 7 TEU
exclude the development of further instruments to protect the values of Article
2 TEU. If the concept of systemic deficiency were to trigger the same legal
consequences as Article 7 TEU, i.e. the explicit determination by the Council
or the formal suspension of certain rights, such doubts would be indeed
justified. For this reason, all doctrinally developed instruments need to be less
invasive than those stated in Article 7; the explicit mechanism sets the upper
level of EU intrusion.37 At the same time, it is established doctrine under EU
law that a specific procedure in the Treaties for dealing with a certain problem
34. Becker, in Schwarze (Ed.), EU-Kommentar, 3rd ed. (Nomos, 2012), Artikel 7, marg.
number 8.
35. Art. 7(1) TEU. The first impetus for including such a reference in EU law seems to have
been given by the prospect of Greece entering the EEC, see Stein, “Die rechtlichen
Reaktionsmöglichkeiten der Europäischen Union bei schwerwiegender und anhaltender
Verletzung der demokratischen und rechtsstaatlichen Grundsätze in einem Mitgliedstaat”, in
Goetz, Selmer, and Wolfrum (Eds.), Liber amicorum Günther Jaenicke (Springer, 1998),
p. 873; Schorkopf, in Grabitz, Hilf, and Nettesheim (Eds.), note 14, Artikel 7, marg. number 1.
For the mechanism of Art. 7 TEU, see in general Sadurski, “Adding bite to a bark: The story of
Article 7, EU enlargement, and Jörg Haider”, 16 CJEL (2009–2010), 385.
36. Art. 7(3) TEU.
37. For a more lenient view, see Case C-361/98, Italy v. Commission, [2001] ECR I-385,
para 39.
Rule of law
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does not categorically prohibit the development of further instruments.38 This
is the legacy of the Van Gend en Loos doctrine, which enables individual legal
actions based on Treaty provisions irrespective of the explicit infringement
procedure.39 Later, the doctrine of Member State liability for breaches of EU
law was developed although Member States were about to introduce a
different procedure (now Art. 260(2) TFEU) in the Treaty of Maastricht.40
Both doctrines have become accepted part of the EU law acquis. Moreover, as
the Article 7 mechanism can be triggered by any exercise of domestic public
authority, relevant systemic deficiencies can appear in all fields of domestic
action. Hence, the concept systemic deficiency neither creates new obligations
for the Member States nor expands the EU’s field of action. Although
certainly a legal innovation, it falls squarely within the Union’s competence
(Verbandskompetenz).41 The issue of competence is more complex, not least
because the scope of the competence requirement of Article 5 TEU is
unsettled. However, as long as the institutions do not enact unilateral binding
acts against Member States and individuals, the requirements of Article 5
TEU are met.42
In this light, Articles 2 and 7 TEU may serve as legal bases for measures
responding to systemic deficiencies in the EU’s founding principles. We hold
that, in light of Article 7 TEU, the EU measures presented later in this article,
but also the EU Justice Scoreboard, as well as the proposed rule of law
dialogue43 are, in principle, within the EU competences as long as they are less
invasive than those stated in Article 7.44 Overall, Article 7 TEU gives
important support and guidance for the doctrinal concept of systemic
deficiency.
38. For detailed argumentation on this point with respect to the possible forms of EU legal
instruments, see Bast, Grundbegriffe der Handlungsformen der EU (Springer, 2005), pp.
60–63.
39. Van Gend en Loos, cited supra note 22, para 24.
40. Francovich, cited supra note 28.
41. The legal limits for such legal innovation are discussed in the context of the parallel
doctrine of “Reverse Solange”, see von Bogdandy, Kottmann, Antpöhler, Dickschen, Hentrei,
and Smrkolj, “Reverse Solange-Protecting the essence of fundamental rights against EU
Member States”, 49 CML Rev. (2012), 489, 515–516.
42. For a demanding interpretation, which includes non-binding acts, Bast and von
Bogdandy, in Grabitz, Hilf, and Nettesheim, op. cit. supra note 14, Artikel 5, marg. numbers
23–29.
43. Toggenburg, “Was soll die EU können dürfen, um die EU-Verfassungswerte und die
Rechtsstaatlichkeit der Mitgliedstaaten zu schützen?”, 10 Österreichische Gesellschaft für
Europapolitik – Policy Brief (2013).
44. See, in more detail, 2.2.1.
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2.2.2. The Council of Europe
The concept finds further support in the law of the Council of Europe, which
also recognizes the distinction between normal infringements and systemic
deficiencies. Due to the close linkage between the two systems, this is
particularly relevant for EU law.45 Similarly to Article 7 TEU, Article 8 of the
Statute of the Council of Europe provides that a Member that has “seriously
violated” the principles of the rule of law and human rights may be suspended
from its rights of representation and even expelled from the Council of
Europe.46 Like the procedure of Article 7 TEU, this mechanism has not been
effective, possibly for similar reasons, i.e. its radical character and
questionable usefulness for the protection of human rights.47 Beyond this
“formal” mechanism, the ECtHR and the Committee of Ministers have
developed the notion of “systemic” or “structural” problem as a legal concept,
aiming at distinguishing “simple”, episodic violations of the Convention from
pervasive and systemic domestic inefficiencies that require “structural”,
institution-changing remedies.48
With its decision in 2004, the Committee of Ministers invited the ECtHR to
identify in its judgments potential systemic problems as well as the source of
these problems, and to refer any judgment containing such indications not
only to the State concerned, but also to the Committee of Ministers, the
Parliamentary Assembly, the Secretary General of the Council of Europe, and
the Council of Europe Commissioner for Human Rights.49 The ECtHR has
45. See Art. 6(3) TEU.
46. Art. 3 requires every member of the Council of Europe to “accept the principles of the
rule of law and of the enjoyment by all persons within its jurisdiction of human rights and
fundamental freedoms”.
47. The only time the mechanism was applied was against Greece during the time the
country was under military dictatorship. Greece withdrew from the Council of Europe before
being expelled, see Magliveras, Exclusion from Participation in International Organisations:
The Law and Practice behind Member States’ Expulsion and Suspension of Membership
(Kluwer, 1999), pp. 80 et seq. However, the Parliamentary Assembly has denied the credentials
of certain delegations on a number of occasions, see Benoît-Rohmer and Klebes, Council of
Europe Law: Towards a Pan-European Legal Area (Council of Europe Publishing, 2005), pp.
40 et seq.
48. See Leach, Hardman, Stephenson and Blitz, Responding to Systemic Human Rights
Violations – An Analysis of Pilot Judgments of the European Court of Human Rights and their
Impact at National Level (Intersentia, 2010); Fyrnys, “Expanding competences by judicial
lawmaking: The pilot judgment procedure of the European Court of Human Rights”, 12
German Law Journal (2011), 1231; Haider, The Pilot-Judgment Procedure of the European
Court of Human Rights (Nijhof, 2013).
49. Committee of Ministers, Resolution Res(2004)3 of the Committee of Ministers on
Judgments Revealing an Underlying Systemic Problem, 12 May 2004, available at <wcd.
coe.int/viewdoc.jsp?id=743257&lang=fr >. See also Rule 61 of the Rules of Court of the
European Court of Human Rights, available at <www.echr.coe.int/Documents/Rules_Court_
ENG.pdf>.
Rule of law
69
actively taken up this task in a series of cases, identifying systemic violations
of human rights and stipulating general measures to be adopted by the
respondent State in the operative part of its judgments.50 The terms
“systemic” or “structural” problem also often appear in documents of the
Committee of Ministers and the Parliamentary Assembly.51 Although there is
no clear definition of these concepts,52 structural or systemic problems are
associated with a “dysfunction” in the national legal system that affects a
significant number of persons, leads to numerous applications before the
ECtHR, and calls for general measures.53 For example, in the case Burdov v.
Russia (No. 2) the ECtHR found that the inability of Russia to ensure the
effective enforcement of domestic court decisions was large-scale and
complex in nature, and, accordingly, required “the implementation of
comprehensive and complex measures, possibly of a legislative and
administrative character, involving various authorities at both federal and
local level”.54
The Council of Europe thus offers two valuable insights for EU
constitutional law. First, the use of systemic deficiency as a legal concept that
can help grasping and tackling situations that go beyond episodic violations.
Second, the use of this concept to develop alternative responses beyond the
formal, but rather impractical mechanism of Article 8 of the Statute of the
Council of Europe, and the typical remedy of individual complaint. We
suggest following the Council of Europe in not considering the existence of
the explicit sanction mechanism of Article 7 TEU as an obstacle to developing
other, alternative responses to a systemic deficiency.
50. See ECtHR, Broniowski v. Poland, appl. no. 31443/96 (22 June 2004), paras. 189 et seq.
and for later pilot judgments, ECtHR, Ananyev and Others v. Russia, appl. nos. 42525/07,
60800/08 (10 Jan. 2012), paras. 184 et seq.; ECtHR, Manushaqe Puto and Others v. Albania,
appl. nos. 604/07 and others (31 July 2012), paras. 107 et seq. The term “structural” was
introduced in ECtHR vocabulary in the case ECtHR, Hutten-Czapka v. Poland, appl. no.
35014/97 (19 June 2006), para 233.
51. See respectively Committee of Ministers, Supervision of the Execution of Judgments
and Decisions of the European Court of Human Rights: 6th Annual Report of the Committee of
Ministers 2012 (Council of Europe, 2013) passim and esp. 45 et seq.; Parliamentary Assembly,
Resolution 1914 (2013), Ensuring the Viability of the Strasbourg Court: Structural Deficiencies
in States Parties, 22 Jan. 2013.
52. See Susi, “The definition of a ‘structural problem’in the case-law of the European Court
of Human Rights since 2010”, 55 German Yearbook of International Law (2012), 385,
413–417.
53. See Committee on Legal Affairs and Human Rights, States with Major
Structural/Systemic Problems before the European Court of Human Rights: Statistics, 18 Apr.
2011, AS/Jur/Inf (2011) 05 rev 2, para 6.
54. ECtHR, Burdov v. Russia (No. 2) appl. no. 33509/04 (15 Jan. 2009), para 136.
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2.2.3. General international law
Beyond Europe, the notion of systemic deficiency is used where territorial
units fall short of the international concept of a State. Research with regard to
such States, often referred to as weak, failing, or failed, focused initially on
the empirical dimension of the phenomenon.55 The legal concept tackles the
difficulties that arise when international law operates on the background
presumption of a fully functioning State when dealing with entities that fail to
fulfil basic State functions, such as ensuring a minimum attainment of the rule
of law.56 Although no EU Member State is a weak or failing State by
international standards, the international concept supports the EU concept of
systemic deficiency and provides useful indicators.
At the international level, weak States are defined by the lack of reliable
institutions able to guarantee respect for law in their territories.57 The most
usual reason for this type of ineffectiveness is that central institutions,
including the legislature, but especially the courts and executive
administration, do not command the necessary institutional, financial, and
human resources to give real effect to the law.58 Weakness or failure hence
usually refer to the widespread inability of central institutions to implement
the law through (and over) all other relevant governance actors, such as
bureaucrats or judges.
The reason why this type of weakness has become an issue also for
international law is because the ability to give effect to the law is an
55. Countries such as Somalia or Congo offer paradigm cases where unqualified reference
to statehood is an untenable fiction: those territorial units lack many basic elements to which
modern States are associated. See Risse, “Governance in areas of limited statehood:
Introduction and overview”, in Risse (Ed.), Governance Without A State? (Columbia
University Press, 2011), pp. 1, 28.
56. See Thürer, “The ‘failed State’ and international law”, 81 International Review of the
Red Cross (1999), 731; Geiß, ‘Failed States’: Die normative Erfassung gescheiterer Staaten
(Duncker & Humblot, 2005); Richter, Collapsed States: Perspektiven nach dem Wegfall von
Staatlichkeit Zugleich ein Beitrag zu den Grundlagen des Selbstbestimmungsrecht der Völker
und zur Struktur des völkerrechtlichen Staatsbegriffs (Nomos, 2011); Leidenmühler,
Kollabierter Staat und Völkerrechtsordnung: Zur Aktualität Der Westfälischen Ordnung,
Entwickelt an Fragen des Wegfalls Effektiver Staatsgewalt (Berliner Wissenschafts-Verlag,
2011), pp. 173 et seq.
57. Effectiveness, as generally used in this context, usually means (or at least always
includes) the ability to “make, implement, and enforce central decisions for a collectivity”,
Risse, op. cit. supra note 55, 4. See also Jackson and Rosberg, “Why Africa’s weak States
persist: The empirical and the juridical in statehood”, 35 World Politics (1982), 1, 6.
58. See Mann, “The autonomous power of the State: Its origins, mechanisms and results”,
25 European Journal of Sociology (1984), 185, 189; Kreijen, State Failure, Sovereignty and
Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Martinus
Nijhoff, 2004), p. 86; Risse, op. cit. supra note 55, 4.
Rule of law
71
indispensable condition for international cooperation. One of the
preconditions of effective intentional law is that the government that appears
in international fora and undertakes commitments for a collectivity has the
ability to give real effect to those commitments.59 International law depends
thus largely on the presumption that State institutions, such as courts and
administrative agencies, are effective in structuring social interactions.60 This
presumption is not put into question by occasional problems that a State might
face with regard to some institutions or even some parts of its territory. When,
however, such deficiencies take a systemic character, international law stops
being operative; it vociferates into the void.
2.3. How to identify a systemic deficiency in the rule of law
A systemic deficiency in the rule of law exists if this founding principle is
substantially threatened. This is a vague concept in need of specification – not
least because determinacy is a basic component of the rule of law.61 Can we
thus speak of systemic deficiencies when a single official is corrupt, the
administration of an entire, but single city is ineffective in implementing the
law, when a specific court does not decide in appropriate time? Or should
the concept only apply to extreme situations as exemplified by failed States,
such as Somalia, Congo, or Sudan?62 In the following, we will substantiate an
intermediate understanding. Of course, we cannot provide a hard, fast, and
easy distinction between a systemic deficiency and “normal” violations.
There are, however, two types of legal considerations that help drawing a
meaningful line: the function of law and the specific demands of EU
membership. We claim that the European institutions largely operate on the
understanding that is hereby conceptualized.
2.3.1. Conceptual groundwork: The function of law
One basic social function of law is to offer the members of a society a reliable
foundation upon which they can organize their activity and plan their
59. Krieger, Das Effiktivitätsprinzip im Völkerrecht (Duncker & Humblot, 2000), p. 268;
Leidenmühler, op. cit. supra note 56, 272. This is also reflected in the fact that the criterion of
government is central to a putative State’s claim to statehood, Crawford, The Creation of States
in International Law, 2nd ed. (OUP, 2006), p. 55.
60. See Krieger, ibid., 88 et seq.
61. Lord Bingham, “The Rule of Law”, 66 Cambridge Law Journal (2007), 67, 69–70;
Schulze-Fielitz, op. cit. supra note 15, marg. numbers 141–145; Krygier, op. cit. supra note 12,
237–238.
62. These are the three countries at the top of the Failed States Index 2013, available at
<ffp.statesindex.org/rankings-2013-sortable>.
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conduct.63 Meaningful social conduct requires reduction of future uncertainty
and the otherwise unmanageably broad spectrum of open possibilities. Social
institutions accomplish this task of uncertainty-reduction by generating and
supporting normative expectations. They signal that some actions are more
likely and acceptable than others,64 thus making it easier for persons to act
within an uncertain social environment. Unlike traditional, undifferentiated,
or authoritarian societies, today’s complex and free societies mostly rely on
law to generate and stabilize normative expectations. Law allows persons to
assume how others will probably act in the future and which decisions can be
expected to find social approval or disapproval. For example, a rule containing
a prohibition generates the expectation that the relevant conduct will not be
encountered in normal social interaction, and, that, if it is, such deviation from
the rule can be addressed in institutional ways, triggering organized
disapproval, and possibly sanctions as well as redress. Persons can thus
proceed with their plans expecting that some future developments are more
possible than others. Another way to put this insight is to state that law’s
essential function is to generate trust; trust that is necessary for undertaking
complex endeavours in uncertain social environments.65
Law can however only accomplish this social function and generate reliable
expectations when it is generally observed. General observance is not
threatened by isolated infringements. Rather, in well-functioning legal
systems, such infringements trigger social and institutional responses that are
essential for sustaining and even developing normative expectations; hence
they serve the function of law. There are few better examples of this than
within EU law itself. Without the operation of the Union courts, triggered by
violations, European Union law would not be as important, both in breath and
in depth, as it is today.
However, if infringements gain salience and regularity and remain broadly
unsanctioned, this virtuous circle stops working and an opposite dynamic is
unleashed. In systems where institutions are regularly seen as unable to tackle
infringements, due to corruption, unwillingness, institutional weakness, or
lack of necessary capacity, normative expectations are undermined. Hence,
the rule of law is threatened when a significant number of social actors in
important fields stops relying on public institutions to fulfil expectations, for
example, that a contract will be enforced within a meaningful time span, that
63. Romano, “Diritto (funzione del)”, in Romano (Ed.), Frammenti di un dizionario
giuridico (Giuffrè, 1953), pp. 76, 81; Luhmann, Das Recht der Gesellschaft (Suhrkamp, 1993),
pp. 150–153; Habermas, Between Facts and Norms (Polity Press, 1996), pp. 144 et seq.; Raz,
op. cit. supra note 12, 222.
64. Luhmann, “Positivität des Rechts als Voraussetzung einer modernen Gesellschaft”,
(1970) Jahrbuch für Rechtssoziologie und Rechtstheorie, 175, 185.
65. Ibid., 179.
Rule of law
73
competing enterprises will respect the relevant rules on taxation, employment,
or environmental protection, or that irregular official behaviour will be
sanctioned. After reaching this threshold, a legal system fails to exercise its
core function, to support reliable expectations. This is what we call a systemic
deficiency in the rule of law.
Systemic deficiency in the rule of law is thereby distinguished from simple,
episodic infringements of the law.66 Whereas in the second case, expectations,
even if disappointed in a specific case, remain valid and continue to be
relevant for planning future conduct, in the case of systemic non-observance
trust in law is lost and expectations are not maintained. Persons that encounter
such a systemic failure of the rule of law thus modify their expectations instead
of insisting on them.67 Although certainly disappointed and probably
outraged, people stop expecting law observance as a general feature in
important sectors of society. The unsustainability of expectations brought with
the weakening of the rule of law results in a loss of trust in public institutions
and the rise of uncertainty.
2.3.2. Criteria for identification
Important concepts used in the former paragraph remain vague: “generally
observed”, “significant number of social actors”, or “meaningful time”. They
can be substantiated with the help of social science-based indicators and
data.68 For example, the Worldwide Governance Indicators (WGI) Project, a
project supported by the World Bank and currently one of the most influential
compilations of cross-country data on governance, uses inter alia the criteria
66. Luhmann, op. cit. supra note 63, 132. See also Waldron, op. cit. supra note 12, 6–7.
67. That means that expectations cease to be normative. Normative expectations are
distinguished from cognitive in that, in the case of disappointment, the person holding them
does not modify them, but retains them. Luhmann, Ausdifferenzierung des Rechts (Suhrkamp,
1981), pp.115–116.
68. There are currently a number of different indicators maintained by different institutions,
see e.g. Failed States Index (maintained by the Fund for Peace); Index of State Weakness in
the Developing World (maintained by the Brookings Institution); State Fragility Index
(maintained by the Center for Systemic Peace and Center for Global Policy at Maryland
University). For an overview, see Kurtza and Schrank, “Growth and governance: Models,
measures and mechanisms”, 69 The Journal of Politics (2007), 538; Newman, “Failed States
and international order: Constructing a post-Westphalian world”, 30 Contemporary Security
Policy (2009), 421, 427; Apaza, “Measuring governance and corruption through the worldwide
governance indicators: Critiques, responses, and ongoing scholarly discussion”, 42 Political
Science & Politics (2009), 139. For the function of these indicators and critique, see Bhuta,
“Governmentalizing sovereignty: Indexes of State fragility and the calculability of political
order”, in Davis et al. (Eds.), Governance by Indicators: Global Power through Quantification
and Rankings (OUP, 2012), p. 132.
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of “Control of Corruption”69, “Regulatory Quality”70, the “Rule of Law”,71
and “Government Effectiveness”72 to assess State institutions in different
countries. The World Justice Project (WJP), an independent, non-profit
organization, also compiles a Rule of Law Index, using factors belonging to
eight categories: government powers limited by law, absence of corruption,
order and security, fundamental rights, open government, regulatory
enforcement, civil justice, criminal justice, and informal justice.73
All EU Member States do rather well in these global rankings, though there
is significant variation between them. It is beyond question that they cannot be
considered as weak by international standards.74 However, institutional
strength and weakness of EU Members are not to be assessed with reference
to global, but European standards. The EU standard regarding the rule of law
must be considerably higher than for States participating in looser forms of
international cooperation. Articles 1, 2, 4, 6, 7, and 49 TEU indicate that a
systemic deficiency is to be determined in light of the specific requirements of
EU membership. This is not only because of the character of the EU as a
community of law.75 Due to their complexity, most EU norms, whether they
relate to product-safety, environmental protection, the taxation of added value,
or immigration, place far greater demands on the capacities of domestic
administrations and courts than most international norms.
Moreover, because of the deep integration and the close territorial
proximity of EU Member States, negative externalities owing to systemic
deficiencies in some of them have much greater importance to other Member
States, compared to repercussions of the ineffectiveness of States located in
69. According to the WGI Project, “Control of corruption captures perceptions of the extent
to which public power is exercised for private gain, including both petty and grand forms of
corruption, as well as ‘capture’of the State by elites and private interests.” <info.worldbank.org/
governance/wgi/pdf/cc.pdf>.
70. According to the WGI Project, “Regulatory quality captures perceptions of the ability
of the government to formulate and implement sound policies and regulations that permit and
promote private sector development”, <info.worldbank.org/governance/wgi/pdf/rq.pdf>.
71. According to the WGI Project, “Rule of law captures perceptions of the extent to which
agents have confidence in and abide by the rules of society, and in particular the quality of
contract enforcement, property rights, the police, and the courts, as well as the likelihood of
crime and violence”, <info.worldbank.org/governance/wgi/pdf/rq.pdf>.
72. According to the WGI Project, “Government effectiveness captures perceptions of the
quality of public services, the quality of the civil service and the degree of its independence
from political pressures, the quality of policy formulation and implementation, and the
credibility of the government’s commitment to such policies”, <info.worldbank.org/
governance/wgi/pdf/ge.pdf>.
73. See <worldjusticeproject.org/what-rule-law>.
74. Statements that go in that direction (see infra 3.1.), are not supported by pertinent
international research.
75. See in detail, 2.1.
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75
more distant parts of the world.76 Within the internal market, enterprises
which are able to evade burdensome regulations on tax, the environment, or
employment, gain a disruptive advantage. Regarding immigration and
asylum, the incapacity of some States to guard their borders and effectively
process asylum applications may have particularly dire consequences for the
rest of EU Members. Of course, non-EU States may also be affected by their
deficiencies. But the shared frame of EU law increases the probability that
deficiencies in one Member will have significance for others. The
quintessential example here is the Dublin Regulation,77 which establishes a
system for examining asylum claims by defining the criteria for deciding
which Member State should be responsible for controlling immigration flows
directed to Europe. The implementation of this system requires domestic
authorities to develop an elaborate mechanism of processing applications and
detaining immigrants meeting the requirements of EU secondary and primary
law, including fundamental rights. Ineffectiveness of a State designated by the
Regulation in addressing immigration flows may have obviously detrimental
effects to the system as a whole.78
Another specific, but very current, form of externality can be seen in the
context of the financial crisis. Many commentators attribute great importance
to weakness in the rule of law for the extent of the current economic crisis. For
example, the ineffectiveness of Greek authorities to enforce tax law, especially
on powerful segments of Greek society, is one reason for its recent financial
woes, which have had serious repercussions for the EU as a whole.79
Structural problems in giving effect to the rule of law appear, moreover, to be
an important reason why investment in the Greek economy is scarce.80 Hence,
76. With negative externalities we mean here the costs of a decision that burden actors other
than the decision-maker, often as a result of their factual interdependence. This concept has
been particularly developed in the field of economics, see Laffont, “Externalities”, in Durlauf
and Blume (Eds.), The New Palgrave Dictionary of Economics, 2nd ed. (Palgrave Macmillan,
2008).
77. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June
2013 establishing the criteria and mechanisms for determining the Member State responsible
for an application for international protection lodged in one of the Member States by a
third-country national or a stateless person (recast), O.J. 2013, L 180/31.
78. As Hammanberg, the Council of Europe Commissioner for Human Rights noted with
respect to Greek deficiencies in this field, “[t]he gravely dysfunctional asylum procedures in
Greece have brought Dublin system to a genuine collapse”, Hammarberg, “The Dublin
Regulation undermines refugee rights”, Human Rights Comment, 22 Sept. 2010, available at
<commissioner.cws.coe.int>.
79. Tax evasion has become recently one of the top priorities of the EU, see European
Council, Conclusions, Brussels, 23 May 2013, EUCO 75/1/13 rev 1.
80. Of the abundant literature substantiating the connection of the rule of law with
economic development see Dam, The Rule of Law and Economic Development (Brookings
Institution Press, 2006); Trubek and Santos (Eds.), The New Law and Economic Development:
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rule of law weakness contributes to a situation in which other governments
see themselves as compelled to provide institutional and financial support to
other Member States, irrespective of the fact that they have no legal obligation
to do so. Perhaps this is an aspect of the “solidarité de fait” Robert Schuman
had in mind when he called for European integration.81 It is beyond question
that EU integration, and above all the monetary union, has triggered a level of
financial interdependence that raises the rule of law requirements.
Last, but not least, the level of regard for fundamental rights and EU
citizenship is relevant in determining whether a national legal order suffers
from systemic deficiency. At this point, our more formal approach meets more
substantive conceptions of the rule of law. In any event, the requirements to
respect and uphold the law are mirrored in the right to good administration,
laid down in the EU Charter of Fundamental Rights (Art. 41 EUCFR), and the
right to an effective remedy and a fair trial (Art. 47 EUCFR). With respect to
citizenship, the ECJ has declared this as “destined to be the fundamental status
of nationals of the Member States”,82 and the Treaty of Lisbon elevated it to
one of the cornerstones of the EU legal order.83 In Ruiz Zambrano, the ECJ
disconnected Union citizenship from any existing cross-border element,
introducing at the same time the notion of the “substance” of Union
citizenship.84 Although much remains unclear as to what constitutes the
“substance” of the Union citizenship, one could reasonably argue that the
actual ability to live under EU law belongs to that substance. Such ability is,
however, seriously compromised when a Member State is structurally
inefficient in observing the rule of law.
3.
3.1.
Applying the concept
Instances of systemic deficiencies
So far, this piece has substantiated the concept systemic deficiency in the rule
of law as a concept of EU constitutional law. Of course, this substantiation
remains somewhat fluid; it does not allow for a fast and easy application of the
concept. Given the complexity of any possible case, the application of the
A Critical Appraisal (CUP, 2006); Haggard and Tiede, “The rule of law and economic growth:
Where are we?”, 39 World Development (2011), 673.
81. Déclaration, 9 May 1950. Of course, one might question whether solidarity is the right
term if strong reasons of self-interest support the act of solidarity.
82. Case C-184/99, Grzelczyk, [2001] ECR I-6193, para 31.
83. See Arts. 9–11 TEU.
84. Case C-34/09, Ruiz Zambrano v. Office national de l’emploi (ONEm), [2011] ECR
I-1177, para 42.
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concept requires sound judgment. A scholarly treatise cannot substitute for,
but rather can only inform such judgment. In order to show the usefulness of
our concept, we now present a number of instances, which we understand as
offering examples.
Even though EU Member States are far richer than most States, this does
not automatically translate into sufficiently effective institutions, especially
considering the high threshold set by EU membership.85 Developed nations
might also suffer from persistent institutional weaknesses, while some
not-wealthy countries score better in effective governance than more
prosperous nations.86 As shown by relevant international indicators, special
reports of European and international bodies, as well as statistics from the
European courts, some EU Members, both older and more recent, show
widespread and persistent weaknesses when it comes to respecting and
upholding the law. Such systemic deficiencies can be found both in judicial
institutions and the administrative apparatus.
3.1.1. Old challenges: Greek and Italian institutions
Of the many foreign reports on the ongoing crisis in Greece, one of the most
interesting was published in February 2012 under the title “The Failing State
of Greece”.87 There, the reporter discussed his personal experience with the
rule of law in Greece: while in a number of instances it seemed to meet
European standards, in other situations the rule of law completely crumbled.
The reporter made particular reference to the events that shuddered Athens in
December 2008, when the Greek capital experienced an almost total
breakdown of law and public order, with enforcement mechanisms and the
judiciary unable to prevent or sanction an unprecedented and wanton
destruction of public and private property, looting, and torching.88 Endemic
corruption and the extraordinary length of judicial proceeding have also been
pointed to as factors contributing to Greece’s economic malaise. International
85. For the latest and most influential support of the connection between reliable and
inclusive institutions and economic success, see Acemoglu and Robinson, Why Nations Fail:
The Origins of Power, Prosperity and Poverty (Profile Books, 2012).
86. According to the World Bank Worldwide Governance Indicators, many emerging
market and developing economies, such as Costa Rica, Uruguay, and Malaysia, score better in
the Rule of Law criterion than advanced economies such as Italy (ranked 81st) or Greece
(ranked 78th) (year of reference 2012), full dataset available at <info.worldbank.org/gover
nance/wgi/index.aspx#home>. The references to advanced, emerging, and developed
economies follow IMF categorization, IMF, World Economic Outlook, Apr. 2013, 121.
87. See <www.nytimes.com/2012/02/26/sunday-review/the-failing-state-of-greece.html?
pagewanted=all>.
88. For an account of those events, see Εστíα,
2008 (2009)
[Estia, What Happened in December 2008 (2009)].
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actors and Greeks themselves often ask whether Greece is a sort of “weak”
State by European standards.89
To frame the debate about the Greek crisis in terms of systemic deficiency
or State weakness has not only been popular in general public discourse, but is
also at the centre of many international and European official reports.
Structural ineffectiveness and non-implementation of policies have been
indicated as “a major and debilitating weakness” by the EU Task Force for
Greece, the special Commission body established to support Greek reform
efforts and to assist the implementation of the EU/IMF adjustment
programmes.90 The periodic reviews of the EU and the IMF on the progress of
the reforms set as preconditions for financial assistance to Greece also reveal
the deficiencies of the Greek State apparatus in implementing reforms
endorsed at a central level by the Greek parliament and government, including
those agreements concluded with European and international partners.91
But it is not only during the crisis that international actors have expressed
their concerns regarding State capacity in Greece. The OECD has long
pointed to the “inadequate capacity of ministries to carry reforms into the
implementation stage”.92 Many of these concerns are also shared for another
“old” EU Member State, Italy. The World Bank Worldwide Governance
Indicators Project offers substantial evidence of the divergence of Greece and
Italy from their European peers in terms of administrative and judicial
capacity. Greece and Italy rank markedly below average in terms of
government effectiveness, control of corruption, and the rule of law.93 With
89. See indicatively, Featherstone, “The JCMS annual lecture: The Greek sovereign debt
crisis and EMU: A failing state in a skewed regime”, 49 JCMS (2011), 193; Mylonas, “Is
Greece a failing developed State? Causes and socio-economic consequences of the financial
crisis”, in Botsiou and Klapsis (Eds.), The Konstantinos Karamanlis Institute for
Democracy Yearbook 2011 (Springer, 2011), p. 77; Malkoutzis, “Is Greece a failed State?”,
Foreign Policy, 1 March 2012; Ξυδάκης, “Αναξιóπιστο κράτος, λεηλατηµένοι πολíτες”,
, 3 July 2012 [Xudakis, “Unreliable State; Plundered citizens”, Kathimerini, 3 July
2012)]. Critical to the use of the term “failed” is Zelepos, “Im Südosten nichts Neues?”, 60
Südosteuropa (2012), 346, 354.
90. Task Force for Greece, First quarterly report, 17 Nov. 2011, SI(2011) 399/3, 14. See also
Communication from the Commission to the European Parliament, the Council, the European
Central Bank, the European Economic and Social Committee, the Committee of the Regions
and European Investment Bank, Growth for Greece, 18 Apr. 2012, COM(2012)183 final, 12 et
seq.
91. See the five reviews conducted on the basis of the First Adjustment Programme and the
three reviews conducted on the basis of the Second Adjustment Programme, all available at
<ec.europa.eu/economy_finance/assistance_eu_ms/greek_loan_facility/index_en.htm>.
92. OECD, Greece: Review of the Central Administration 2011, OECD Public Governance
Reviews, (OECD Publishing, 2011), 27.
93. See the analysis of the relevance of WGI indicators for EU Member States by Sissenich,
“Weak States, weak societies: Europe’s east-west gap”, 45 Acta Politica (2010), 11, 22, 19–23.
Current figures are available at <www.govindicators.org>.
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regard to the criterion of the rule of law, which measures the extent to which
“agents have confidence in and abide by the rules of society, and in particular
the quality of contract enforcement, property rights, the police, and the courts,
as well as the likelihood of crime and violence”,94 Greece and Italy not only
rank last amongst EU-15,95 but also compared to all new,
post-2004-enlargement countries except Bulgaria and Romania.96 Regarding
the control of corruption, Greece and Italy stand out among EU members as
“extreme outliers”.97 According to Beate Sissenich, who uses a diverse set of
criteria to sketch the picture of weak EU members, Italy and Greece are clear
exceptions in terms of securing the rule of law when compared to their
pre-2004 accession peers, but are also weak in EU-28 terms.98 Both Spain and
Portugal, countries that also experience serious economic challenges, perform
considerably better in this field.99
The weakness of Greek and Italian judicial institutions is also indicated by
the statistics of the Council of Europe (CoE). These are particularly interesting
in identifying weakness in observing the rule of law for two reasons. First,
because the ECtHR, applying Articles 6 and 13 ECHR, which protect the right
to fair trial and an effective remedy, has closely scrutinized basic elements of
the rule of law, such as domestic judicial proceedings that are
disproportionately lengthy and the failure or delay by the administration in
abiding by final domestic judgments. Second, as noted above, CoE organs
have lately focused on, and substantially developed, the notion of “systemic”
or “structural” problem as a legal concept, aiming at distinguishing “simple”,
episodic violations of ECHR provisions from constellations of pervasive and
structural domestic deficiencies.100
Greece and Italy have repeatedly been the focus of the CoE organs in this
context and stand out among EU-15 Member States for the number of
94. See <info.worldbank.org/governance/wgi/pdf/rl.pdf>.
95. See <info.worldbank.org/governance/wgi/index.aspx#reports>, selecting the indicator
rule of law, the reference year 2012, and the EU-15 Member States.
96. Ibid., selecting the indicator rule of law, the reference year 2012, and the post-2004
enlargement EU Member States. See also the data compiled and presented by the World Justice
Programme, <worldjusticeproject.org/rule-of-law-index-data>.
97. Sissenich, op. cit. supra note 93, 21.
98. Ibid., 25. For a more qualitative analysis, Cassese, L’Italia: una società senza stato? (Il
Mulino, 2011), 82–94, stressing the deep differences between the North and the South in this
respect, 110. See also Hoffmeister, “Enforcing the EU Charter of Fundamental Rights in
Member States: How far are Rome, Budapest and Bucharest from Brussels?”, in von Bogdandy
and Sonnevend, op. cit. supra note 3.
99. Sissenich, op. cit. supra note 93, 25; Verheijen, Administrative Capacity Development:
A Race Against Time? (Scientific Council for Government Policy, 2000), p. 9.
100. The difference between this concept and our “systemic deficiency” is largely
terminological, although one has to consider that the former rests on the law of the Council of
Europe and the ECHR, whereas our concept is one of EU law.
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convictions and the structural character of some of their violations. Regarding
Greece, in its latest report on the “Supervision of the execution of judgments
and decisions of the European Court of Human Rights”, the Committee
focused once more101 on the excessively lengthy proceedings before domestic
courts.102 Such deficiencies amounted, according to the ECtHR and the
Committee, to the “absence of an effective remedy” for Greek citizens.
Moreover, in its decision in the case Vassilios Athanasiou and others v. Greece,
the ECtHR examined the Greek incapacity in offering timely and efficient
remedies under the pilot-judgment procedure, highlighting the existence of
structural problems in this field.103 In that case, the Court stressed the “chronic
and persistent nature”104 of the problems in question, pointed out that the
situation in Greece “could in practice be regarded as a denial of justice”,105
and requested the Greek Government to “provide the large number of people
involved with rapid and appropriate redress at national level”.106 What is most
important for present purposes is that, amongst EU Members, Greece has one
of the largest numbers relative to population of ECtHR judgments finding at
least one violation, and the vast majority of these convictions relate to the right
to access an efficient judicial system.107 That means that the most common
reason Greece is found to violate the ECHR is its inability to enforce its own
laws in a timely and effective manner.
Italy occupies the first position on the list of countries having non-executed
judgments pending before the Council of Ministers.108 Together with Greece,
Italy is the only one of the pre-2004-enlargement EU members amongst the
twelve highest-ranking countries in number of unexecuted decisions in
absolute numbers.109 In its decision on “Structural Deficiencies in States
Parties” of 7 January 2013,110 the Parliamentary Assembly of the CoE placed
Italy, together with Greece, on the list of countries facing “major and complex
101. See already the 2007 Resolution of the Committee of Ministers, Interim Resolution on
Excessively Lengthy Proceedings in Greek Administrative Courts and the Lack of an Effective
Domestic Remedy, 6 June 2007, CM/RESDH(2007)74.
102. Committee of Ministers, op. cit. supra note 51, 50–51.
103. ECtHR, Vassilios Athanasiou and others v. Greece, appl. no. 50973/08 (21 Dec. 2010).
See also the pilot judgements in the cases ECtHR, Michelioudakis v. Greece, appl. no. 54447/10
(3 Apr. 2012); ECtHR, Glykantzi v. Greece, appl. no. 40150/09 (30 Oct. 2012).
104. Vassilios Athanasiou, ibid., para 44.
105. Ibid., para 52.
106. Ibid., para 44.
107. European Union Agency for Fundamental Rights, Fundamental Rights: Challenges
and Achievements in 2012, Annual Report (Publications Office of the European Union,
2013), 287.
108. Committee on Legal Affairs and Human Rights, op. cit. supra note 53, 4.
109. Ibid.
110. Parliamentary Assembly, Resolution 1914 (2013), cited supra note 51.
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structural deficiencies”111 in implementing the Convention, focusing
especially on the excessive length of judicial proceedings and the chronic
non-enforcement of domestic judicial decisions. Greece and Italy were the
only pre-2004 enlargement-EU members specifically referred to in that
resolution.112
Of course, similar reports, criticizing State deficiencies, also exist for other
European countries.113 It appears, however, that two elements set the cases of
Greece and Italy apart. First, ineffectiveness is closely connected with the
incapacity to ensure the observance of the rule of law. Second, criticisms of
Greek and Italian institutions focus not only on specific fields and isolated
cases of administrative incapacity, but refer to structural and persistent, and
hence systemic, deficiencies.
3.1.2. New challenges: Bulgarian and Romanian institutions
When Romania and Bulgaria entered the EU in 2007, they still suffered from
structural problems that set them apart not only from older EU members, but
also the new, 2004-enlargement members. For this reason, the EU established
a special “cooperation and verification” mechanism to help Romanian and
Bulgarian institutions address these “outstanding shortcomings”114 and
monitor their progress towards meeting EU standards.115 In December 2006,
the Commission set specific criteria for assessing progress made by Bulgaria
and Romania in establishing effective administrative and judicial systems.116
In the framework of this mechanism, the EU reports every six months on the
progress of those countries with judicial reform, the fight against corruption
111. Ibid., recital 5.
112. The other countries being Bulgaria, Romania, the Republic of Moldova, Poland, the
Russian Federation, Turkey, and Ukraine, ibid., recital 3.
113. See Dubois, Schurrer, and Velicogna, Report Prepared for the European Commission
(Directorate General Justice), The Functioning of Judicial Systems and the Situation of the
Economy in the European Union Member States, available at <ec.europa.eu/justice/effectivejustice/files/cepej_study_justice_scoreboard_en.pdf>.
114. “Mechanism for cooperation and verification for Romania and Bulgaria”,
<ec.europa.eu/cvm/index_en.htm>.
115. The legal bases for the establishment of these mechanisms were in the Treaty of
Accession of the Republic of Bulgaria and Romania, in particular Art. 4(3), and the respective
Acts of Accession, in particular Arts. 37 and 38, Act concerning the conditions of accession of
the Republic of Bulgaria and Romania and the adjustments to the treaties on which the
European Union is founded, O.J. 2005, L 157/203.
116. With regard to Bulgaria, see Commission Decision, Establishing a Mechanism for
Cooperation and Verification of Progress in Bulgaria to Address Specific Benchmarks in the
Areas of Judicial Reform and the Fight against Corruption and Organized Crime, 13 Dec. 2006,
C(2006)6570 final. With regard to Romania, see Commission Decision, Establishing a
Mechanism for Cooperation and Verification of Progress in Romania to Address Specific
Benchmarks in the Areas of Judicial Reform and the Fight against Corruption, 13 Dec. 2006,
C(2006)6569 final.
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and, concerning Bulgarian institutions, the fight against organized crime. In
its latest reports, the EU Commission has once more intensely criticized the
deficiencies in providing an effective judicial and administrative system.
Regarding Romania, the Commission scrutinized Romanian performance
with regard to “key principles such as the rule of law, and the independence of
the judicial process as part of the checks and balances of a well-functioning
democracy”.117 Although the Commission was willing to recognize the
difficulties those countries encounter in meeting European rule-of-law
standards, it said that it would not tolerate systemic deviations, such as
“[p]olitical challenges to judicial decisions, the undermining of the
constitutional court, the overturning of established procedures and the
removal of key checks and balances” that call into question the government’s
commitment to respect the rule of law.118 Making reference to the World
Bank WG Indicators, the Commission expressed its concern regarding the
weakness of public administration and the judicial system,119 indicating
significant capacity constraints and poor organization as basic reasons for the
inability of the judicial system to dispense justice in a way consonant with
basic European standards.
Similarly, the Commission’s report on Bulgaria acknowledges that
substantial steps have been undertaken to meet European standards,120 but
also points to the major outstanding problems with the rule of law. According
to that report, the central Bulgarian institutions have been active in adopting
new legislation. Nevertheless, concrete effects have not yet delivered to the
extent required by the Commission. The Commission identified “Systemic
failures in law enforcement” with regard to the fight against organized
crime121 and raised questions about the capacity and resolve of the judiciary to
engage with high-level corruption.122
Beyond these weaknesses established by the dedicated EU monitoring
system, Bulgaria’s and Romania’s systemic deficiencies have also been noted
by the Council of Europe and the World Bank’s Worldwide Governance
Indicators. According to the CoE, both Romania and Bulgaria are amongst the
top-ten of the countries with most non-executed ECtHR judgments pending
117. Report from the Commission, cited supra note 7, 2. See also Report from the
Commission to the European Parliament and the Council, On Progress in Romania under the
Cooperation and Verification Mechanism, Brussels, 30 Jan. 2013, COM(2013) 47 final, 2 et
seq.
118. Report from the Commission, cited supra note 7, 3.
119. Ibid., 8.
120. Report from the Commission, cited supra note 6.
121. Ibid., 11.
122. Ibid., 17.
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before the Council of Ministers.123 In its latest decision on “Structural
Deficiencies in States Parties”, the Parliamentary Assembly of the CoE
included both Bulgaria and Romania in the list of States facing “major and
complex structural deficiencies” regarding their ability to give effect to the
Convention.124 Regarding Romania, the Venice Commission has also
criticized in a special opinion acts and omissions that undermine the rule of
law and public trust to legal procedures.125 The World Bank’s WG Indicators
give a similar picture when it comes to the rule-of-law indicator. Bulgaria and
Romania rank last among all new EU members (12 countries – Croatia not yet
being taken into account), and their difference from the tenth worst performer
(Slovakia) is greater than any difference between the rest of the countries.126
Both of these countries score lowest also with reference to the indicators
“Control of Corruption”, “Regulatory Quality”, and “Government
Effectiveness”.127 Tellingly, only Bulgaria and Romania consistently occupy
the last two positions with regard to all indicators mentioned. The ranking of
the rest of the new Member States changes depending on the indicator chosen,
meaning that those other countries show weaknesses in some fields but are
stronger in others.
3.2.
Responses
As noted above, this article is not dealing with the treatment of “normal”
infringements of EU law.128 These are addressed through the infringement and
preliminary reference procedures. The EU mechanisms for monitoring and
strengthening the rule of law in prospective Members also remain outside the
scope of this paper.129 Our focus in this part will rather be on the way EU
123. Committee on Legal Affairs and Human Rights, op. cit. supra note 53, 4.
124. Parliamentary Assembly, Resolution 1914 (2013), cited supra note 51, recital 3.
125. European Commission for Democracy through Law (Venice Commission), Opinion
on the Compatibility with Constitutional Principles and the Rule of Law of Actions Taken by the
Government and the Parliament of Romania in Respect of other State Institutions and on the
Government Emergency Ordinance on Amendment to the Law no. 47/1992 Regarding
the Organization and Functioning of the Constitutional Court and on the Government
Emergency Ordinance on Amending and Completing the Law No. 3/2000 Regarding the
Organization of a Referendum of Romania, Opinion no. 685/2012, 17 Dec. 2012,
CDL-AD(2012)026, esp. paras. 49, 62–63, and 72.
126. See <info.worldbank.org/governance/wgi/mc_chart.asp>, selecting the indicator rule
of law and the 12 new EU Members.
127. For the content of these indicators, see supra notes 73–76.
128. For those dimensions, see Pech, “‘A Union founded on the rule of law’: Meaning and
reality of the rule of law as a constitutional principle of EU law”, 6 EuConst (2010), 359.
129. Respect for the rule of law is one of the conditions of EU accession, according to Art.
49(1) TEU and the candidates’ ability to uphold the rule of law has become a basic criterion of
accession assessments, see Nicolaidis and Kleinfeld, “Rethinking Europe’s ‘rule of law’ and
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institutions treat those exceptional situations where a current Member
systemically deviates from the rule-of-law requirements of Article 2 TEU,
challenging the presumption of statehood on which the European project is
based.
The most obvious mechanism to address those situations is that enshrined
in Article 7 TEU. According to this provision, EU Members showing systemic
deficiencies in upholding the values of Article 2 TEU may be subject to a
sanction mechanism that can ultimately lead to the suspension of some of their
rights.130 However, the enforcement mechanism set out in Article 7 TEU has
severe drawbacks. The problem is not only that this mechanism has never been
applied in practice,131 and that EU institutions seem reluctant to turn to it.132 It
is also difficult to see the suspension of a Member State’s rights as an adequate
response to systemic deficiencies so as to restore the rule of law and address
the problem of embedded institutional weakness. For these reasons, the
Reverse Solange doctrine, proposed in the context of human rights protection,
might be of little help for such situations.133 Moreover, Article 7 TEU is only
relevant when there is a “serious breach” of the principles of Article 2 TEU.
Here, we are however also interested in situations that amount to “systemic
deficiencies”, but fall short of “serious breaches” within the meaning of
Article 7 TEU. For these reasons, the need to develop further mechanisms has
recently become a major consideration for EU institutions.
Some of those initiatives, such as the newly developed EU Justice
Scoreboard, which offers comparative data of the judicial systems of EU
Member States,134 are intended to support dialogue on the effectiveness of
domestic judicial systems. Although these instruments are not entirely
toothless,135 we will here turn to mechanisms that appear more intrusive. We
enlargement agenda: The fundamental dilemma”, (2012) 08/12 Jean Monnet Working Paper,
available at <centers.law.nyu.edu/jeanmonnet/papers/12/documents/JMWP08Nicolaidis.pdf>.
See also Dimitrova, “Enlargement, institution-building and the EU’s administrative capacity
requirement”, 25 West European Politics (2002), 171; Hoffmeister, “Changing Requirements
for Membership” in Ott and Inglis (Eds.), Handbook on European Enlargement (TMC Asser
Press, 2002), pp. 90–102; Verheijen, op. cit. supra note 104.
130. Arts. 7(2) and 7(3) TEU.
131. For the relevance of this mechanism in the European response to the so-called Haider
Affair, see Sadurski, op. cit. supra note 35, 400.
132. The Commission, after initial willingness, is advocating a very restrictive
interpretation of Art. 7 TEU, see also the speech of Reding, cited supra note 9.
133. See von Bogdandy et al., op. cit. supra note 42, 496 et seq.
134. See Communication from the Commission to the European Parliament, the Council,
the European Central Bank, the European Economic and Social Committee and the Committee
of the Regions, The EU Justice Scoreboard: A Tool to Promote Effective Justice and Growth, 27
March 2013, COM(2013)160 final.
135. See the connection of the European Justice Scoreboard with the European Semester
process, <europa.eu/rapid/press-release_MEMO-13-288_en.htm>.
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focus on three outstanding instruments: the special “cooperation and
verification” mechanism for Bulgarian and Romanian institutions; the
economic adjustment programmes for Members receiving financial
assistance; and the use of the concept of “systemic deficiency” by the ECJ in
order to allocate responsibility for asylum seekers.
It is true that these mechanisms are not formally adopted with reference to
Article 2 TEU and the values of the EU. It also true that some of their aspects
seem to lie outside the “normal” constitutional framework of the EU and raise
substantial concerns in terms of their compatibility with it. What connects
them all, however, is that they are non-ordinary reactions to non-ordinary
problems in guaranteeing the values of Article 2 TEU. We suggest that our
reconstruction as systematic deficiencies in the rule of law has the potential to
allow addressing and criticizing them from within the overall EU
constitutional framework.
The evaluation of the actual success of these instruments lies outside the
scope of this paper. However, and following closely the Greek situation in
particular, our overall impression is that there is no reason to feel hopeless.
Numerous examples, such as the effort to modernize the Greek tax
administration, show that there is real potential in the combined use of
pressure and technical assistance in order to modernize deficient institutions.
3.2.1. The 2007 surveillance mechanism
When Romania and Bulgaria joined the EU on 1 January 2007, they were still
showing significant weaknesses in the fields of judicial reform, corruption,
and organized crime.136 Yet, in contrast with the pre-accession stages, the EU
could no longer use its strongest incentive for inducing compliance – the
prospect of membership.137 To address these outstanding issues, the EU
established a special “Cooperation and Verification Mechanism” (CVM), an
unprecedented surveillance mechanism, aimed at assisting those two
countries “to develop the effective administrative and judicial systems they
need to deliver on the obligations of membership as well as enjoying the
benefits” and “allow Bulgarians and Romanians to enjoy their full rights as
EU citizens”.138 It applies exclusively to these two Member States and gives
significant monitoring powers to EU institutions.
The CVM sets a number of conditions focusing on the effectiveness of the
judicial system and the fight against corruption and organized crime. Bulgaria
136. Statement by the Commission on the Cooperation and Verification Mechanism, 13
March 2013, available at <ec.europa.eu/cvm/docs/com_statement_on_the_cvm.pdf>.
137. Gateva, “Post-accession conditionality support instrument for continuous pressure?”,
18 KFG Working Paper (2010), 16.
138. “Assessing Ongoing Progress by Bulgaria and Romania’,<ec.europa.eu/cvm>.
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has to meet six benchmarks, including the development of “a more transparent
and efficient judicial process by adopting and implementing a new judicial
system act and the new civil procedure code”, enhanced professionalism,
accountability and efficiency of the judiciary, and effective combating of
corruption and organized crime.139 Romania has to ensure a “transparent and
efficient judicial process notably by enhancing the capacity and
accountability of the Superior Council of Magistracy” and must also fight
corruption.140 The CVM thus serves as a mechanism to extend conditionality
beyond accession, introducing a State-specific form of post-accession
supervision.141 The monitoring of these conditions falls to the Commission,
which reports at least every six months.142
Deviation from the CVM standards does not trigger the same consequences
as when a Member State fails to comply with EU law, namely the initiation of
an infringement procedure by the Commission. The failure to meet the
conditions of the CVM is not, however, without teeth. According to the
decisions establishing the CVM, “the Commission may apply safeguard
measures based on Articles 37 and 38 of the Act of Accession, including the
suspension of Member States’ obligation to recognize and execute, under the
conditions laid down in Community law, Bulgarian judgments and judicial
decisions, such as European arrest warrants”, if those countries fail to meet
the benchmarks set for them.143 Beyond these safeguards, which are
considered to be rather unlikely mainly due to their far-reaching
consequences, financial sanctions, although not formally part of the CVM,
have been connected with non-compliance with the benchmarks of that
mechanism. For example, in July 2008 the Commission’s most critical
Progress Report on Bulgaria was accompanied by a separate report on
Bulgaria’s funds management which showed “serious weaknesses in the
management and control systems” and pointed to “a number of irregularities,
suspected fraud cases and conflicts of interest between the programme
139. Commission Decision, C(2006)6570 final, cited supra note 116, annex.
140. Commission Decision, C(2006)6569 final, cited supra note 116, annex.
141. Gateva, op. cit. supra note 137, 6. See also Trauner, “Post-accession compliance with
EU law in Bulgaria and Romania: A comparative perspective”, in Schimmelfennig and Florian
Trauner (Eds.), Post-accession Compliance in the EU’s New Member States, European
Integration online Papers (EIoP), Special issue 2, Vol. 13 (2009), Art. 21, <eiop.or.at/
eiop/texte/2009-021a.htm>.
142. Commission Decision, C(2006)6570 final, cited supra 116, Art. 2; Commission
Decision, C(2006) 6569 final, cited supra 116, Art. 2. All reports are available at <ec.europa.
eu/cvm/progress_reports_en.htm>.
143. Commission Decision, C(2006)6570 final, cited supra 116, recital 7; Commission
Decision, C(2006) 6569 final, cited supra 116, recital 7.
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administration and contractors”.144 This finding led the Commission to
suspend total funds of ¤ 820 million and withdraw the accreditation of two
agencies responsible for managing EU funds.145
In sum, through the CVM, the EU singles out Bulgaria and Romania and
subjects their performance regarding the rule of law to a mechanism of
scrutiny that is not applicable for any other Member: it thereby introduces a
country-specific framework of post-accession conditionality, backed with
particular sanctions and a special mechanism of rigorous monitoring.146 Some
similar elements of post-accession conditionality seem also to have been
included in the Act of Accession of Croatia.147 The equality of Member States,
guaranteed by Article 4(2) TEU, is put under heavy strain. The concept of
systemic deficiency, however, helps to construe the TEU as providing
constitutional justification for the differential treatment of States that
systematically fail to meet the standards of the rule of law.
3.2.2. Adjustment-programmes’ conditionality
The attachment of conditions to financial assistance is a mechanism often
resorted to by international lenders to press recipient countries also to
strengthen the rule of law.148 International financial institutions, most
prominently the World Bank and the IMF, often make access to their funds
contingent upon building more efficient State institutions, capable of
generating confidence in the rule of law. These efforts, sometimes also
referred to under the heading of “good governance”, are deemed by those
institutions to be essential for fulfilling their mandate to promote
macroeconomic stability and sustainable growth.149
144. Report from the Commission to the European Parliament and the Council, On the
Management of EU-funds in Bulgaria, 23 July 2008, COM(2008)496 final 3, 10.
145. Report from the Commission to the European Parliament and the Council, On
Progress in Bulgaria under the Co-operation and Verification Mechanism, 23 July 2008,
COM(2008)495 final; ibid.
146. Gateva, op. cit. supra note 141, 6.
147. Art. 36, Act concerning the conditions of accession of the Republic of Croatia and the
adjustments to the Treaty on European Union, the Treaty on the Functioning of the European
Union and the Treaty Establishing the European Atomic Energy Community, O.J. 2012, L
112/21. See Łazowski, “European Union do not worry, Croatia is behind you: A commentary
on the seventh accession Treaty”, 8 Croatian Yearbook of European Law and Policy (2012), 1,
33–36.
148. For a survey of the relevant literature, see Trubek, “The ‘rule of law’ in development
assistance: Past, present, and future”, in Trubek and Santos (Eds.), The New Law and Economic
Development: A Critical Appraisal (CUP, 2006), p. 74; Ohnesorge, “Developing development
theory: Law and development orthodoxies and the northeast Asian experience”, 28 Univ.
Pennsylvania Journal of International Economic Law (2007), 219.
149. See Schlemmer-Schulte, “International Monetary Fund, Structural Adjustment
Programme (SAP)”, in: MPEPIL, para 18; IMF, Review of the Fund’s Experience in
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Following the same pattern, financial assistance to EU Members countries
by other Member States or the newly-established European mechanisms, such
as the European Financial Stability Facility and the European Stability
Mechanism, has been conditional upon demonstrable policy actions.
Disbursements take place only upon the acknowledgement by a troika of
officials appointed by the Commission, the ECB, and the IMF that these
conditions have been met. These conditions, contained in the so-called
Economic Adjustment Programmes, are mainly oriented towards restoring the
balance of payments of domestic economies and enhancing their international
competitiveness. This part of EU conditionality, commonly referred to as
austerity measures, as well as the questions of their suitability to fight the
crisis and their actual effectiveness, are outside the scope of our investigation.
The programmes also contain, however, conditions aiming at improving the
effectiveness of domestic courts and administrations.
This is particularly so for the programme conditions set for Greece.
Viewing the systemic deficiency of the Greek judicial system as an important
factor for economic instability, the lenders to Greece required inter alia the
production of judicial statistics, the development of e-justice applications, the
reduction of tax (and non-tax) case backlog in courts, the promotion of
mediation, and the revision of the Code of Civil Procedure.150 These
benchmarks, focusing on addressing the notoriously slow and inefficient
Greek judicial procedures, have been quantified so as to allow for closer
monitoring of the progress towards meeting them.151
Similar benchmarks have been set for the reform of the Greek public
administration. As with the judicial system, the lenders to Greece have
indicated systemic deficiencies in the ability of Greek authorities to give real
effect to the law, both at the central and local level. Prime examples are the
requirement that draft laws and the most important draft legislative acts
(Presidential Decrees and Ministerial Decisions) be accompanied by an
implementation timetable,152 and detailed suggestions as to the restructuring
of tax administration.153
Governance Issues (IMF, 2001), 6; Shihata, “Preface: Good governance and the role of law in
economic development”, in Seidman, Seidman, and Wälde (Eds.), Making Development Work:
Legislative Reform for Institutional Transformation and Good Governance (Kluwer Law,
1999).
150. European Commission, Directorate-General for Economic and Financial Affairs, The
Second Economic Adjustment Programme for Greece, March 2012, Occasional Papers 94,
available at <ec.europa.eu/economy_finance/publications/occasional_paper/2012/pdf/ocp94_
en.pdf>, 81.
151. E.g., a target of reducing the backlog of tax cases by 50 % by June 2012, by at least 80
% by end-Dec. 2012, and for the full clearance of the backlog by end-July 2013 was set, ibid.
152. Ibid., 78.
153. Ibid., 101.
Rule of law
89
Beyond setting conditions aiming at putting pressure on domestic
governments to adopt reforms that could strengthen the rule of law, the EU has
also established a special mechanism with the mandate to actively support
capacity building in Greece, the so-called Task Force for Greece (TFGR), a
subdivision of the European Commission, based in Brussels with offices in
Athens. According to its agreement with international lenders, Greece is
required to draw on the technical assistance offered by other EU Member
States, the European Commission, the IMF, or other organizations in priority
areas.154 These technical assistance actions are coordinated by the TFGR.
The purpose of the Task Force is to identify and coordinate the technical
assistance that Greece needs in order to deliver the structural reforms of the
EU/IMF adjustment programme. A significant part of its work focuses on
reforms of the public administration, the fight against corruption, and the
reform of the judicial system. The expertise of the TFGR, which is sourced
from EU Member States, international organizations and other specialist
bodies, is mainly used through two mechanisms: the provision of short-term
assistance and the financing of long-term project implementation.155 Through
this mechanism, administrative reform at the decentralized, local, and
regional levels is supported with a special focus on tax administration and
e-governance.156 The TFGR has been also engaged in efforts to strengthen the
efficiency of the Greek judicial system.157 Although the TFGR’s task is to
offer Greece technical assistance rather than actively press for reforms, the
close linkages between the Task Force and the troika monitoring the progress
of the Adjustment Programme suggests that the guidance provided by TFGR
is often connected to the conditions that Greece needs to fulfil in order to
continue to receive financial assistance. In this way, the reform proposals may
acquire elements of compulsion.
Until now, adjustment programmes, like the one imposed on Greece, have
been adopted and supervised on an ad hoc basis, displaying differences from
country to country and lacking a general legal framework. EU Regulation
472/2013 on the “Economic and budgetary surveillance of Member States
with serious difficulties with respect to their financial stability in the euro
154. European Commission, D.G. for Economic and Financial Affairs, op. cit. supra note
150, 131.
155. See Task Force for Greece, Fifth Activity Report, 22 Oct. 2013, available at <ec.
europa.eu/commission_2010–2014/president/pdf/qr5_en.pdf>, 41–42.
156. Ibid., 21–25.
157. Ibid., 32–33. The TFGR has also been active in the field of asylum and immigration,
supporting the preparation of the “Greek action plan on asylum and migration management”,
which includes concrete objectives, deliverables, time-frames as well as budget estimates,
ibid., 12.
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area”158 aims at organizing and streamlining the adoption and surveillance of
adjustment programmes. Article 7(8) of this Regulation refers to
capacity-building for Members “experiencing insufficient administrative
capacity or significant problems in the implementation of its adjustment
programme”. Such Members “shall seek technical assistance from the
Commission”, which will then explicitly outline the objectives and the means
of that assistance and constitute a group of experts.159 Such experts may
include a resident representative and supporting staff to advise authorities on
the implementation of the adjustment programme.
Enhancing the rule of law using conditions embedded in economic
adjustment programmes has a significant potential to further positive change,
mainly because of its connection with financial assistance that is of existential
importance for recipient States. Moreover, the conditions contained in
economic adjustment programmes are closely monitored by a very elaborate
implementation mechanism, using reports, continuous assessments and
concrete benchmarks to measure compliance.
3.2.3. Mutual trust and the reallocation of responsibility
One of the basic functions of the presumption of compliance with Article 2
TEU is that it supports mutual trust by EU Member States in relation to the
decisions and acts of other Member States. There are very important reasons
for holding firmly to this presumption. Close day-to-day political, judicial,
and administrative cooperation between Member States, which is essential for
the European legal area to work, would be rendered impossible if domestic
authorities were constantly required to prove the compatibility of another EU
polity with the values of Article 2 TEU. Moreover, the presumption that all EU
Member States abide by the values of democracy, the rule of law, and
fundamental rights reflects the normative choice of equality of States,
enshrined in Article 4(2) TEU.
At the same time, however, the term presumption suggests something
tentative, falsifiable, and reversible.160 When institutions display systemic
deficiencies, the institutions of other States might be justified or even required
158. Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21
May 2013 on the strengthening of economic and budgetary surveillance of Member States in
the Euro area experiencing or threatened with serious difficulties with respect to their financial
stability, O.J. 2013, L 140/1.
159. The wording of this provision suggests that in the extreme cases where an EU Member
is in need of financial assistance, might be required to accept some form of capacity-building
assistance.
160. On presumption in general and its role in legal argumentation in particular, see
Rescher, Presumption and the Practices of Tentative Cognition (CUP, 2006); Ullman-Margalit,
“On presumption”, 80 The Journal of Philosophy (1983), 143.
Rule of law
91
to suspend such recognition. This might in turn require the reallocation of
some responsibilities between the States involved.
The case N.S. and others v. SSHD provides an important example in this
direction.161 In N.S., the ECJ was called to rule on the legal significance of the
ineffectiveness of Greece in processing asylum applications respecting
fundamental rights. The case originated in an appeal by Mr N.S., an asylum
seeker, against the decision of the UK authorities to transfer him back to
Greece, which was the responsible Member State for the examination of his
asylum application according to the Dublin Regulation. The applicant
suggested that Greek asylum procedures were so insufficient that his
fundamental rights would be infringed by such a transfer. The ECJ stressed
that Member States should not transfer asylum seekers to another Member
“where they cannot be unaware that systemic deficiencies in the asylum
procedure and in the reception conditions of asylum seekers … amount to
substantial grounds for believing that the asylum seeker would face a real risk
of being subjected to inhuman or degrading treatment”.162 The Court
accepted that Greece exhibited systemic incapacities and suspended the
presumption on which the Dublin Regulation is based, namely that all EU
Member States are more or less equally efficient in processing asylum
applications respecting fundamental rights.163 The Court ruled that if
evidence of systemic incapacity in a certain State can be substantiated, other
Members should not transfer asylum seekers to that State, even if the latter is
the “Member State responsible” under the Dublin Regulation.164
It is especially important to stress that the Court explicitly focused on the
systemic character of State deficiencies. Not any deficiency would be
relevant for the ECJ and the other Member States when deciding whether to
return asylum seekers to the country where they first crossed EU borders, but
only “major operational problems that lead to a systemic violation of
European fundamental rights”.165 Facing the need to develop a criterion for
suspending secondary EU law when it conflicts with fundamental rights, the
161. Joined Cases C-411 & 493/10, N.S. v. Secretary of State for the Home Department and
M.E. and others v. Refugee Applications Commissioner and Minister for Justice, Equality and
Law Reform, judgment (Grand Chamber) of 21 Dec. 2011, nyr. See Lieven, annotation of
C-411/10, N.S. and C-493/10, M.E. and others, 14 EJML (2012), 223; Canor, “My brother’s
keeper? Horizontal Solange: ‘An ever closer distrust among the peoples of Europe’”, 50 CML
Rev. (2013), 383.
162. N.S., cited supra note 161, paras. 94 and 106.
163. Ibid., para 84.
164. Ibid., para 94. See also the Opinion of A.G. Jääskinen on the Case C-4/11,
Bundesrepublik Deutschland v. Kaveh Puid, delivered on 18 Apr. 2013, paras. 60 et seq. (with
reference to “exceptional circumstances”).
165. Canor, op. cit. supra note 161, 401. See also Case C-4/11, Bundesrepublik Deutchland
v. Kaveh Puid, judgment (Grand Chamber) of 14 Nov. 2013, nyr, para 36.
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ECJ differentiated between situations of “slightest”166 or “minor”
infringement167 and those that indicate a systemic flaw in an EU Member.
Here, the Court seems to draw inspiration from the law of the ECHR, and in
particular the M.M.S. case of the ECtHR.168 In that latter case, the ECtHR
examined whether the Belgian asylum authorities “should have regarded as
rebutted the presumption that the Greek authorities would respect their
international obligations in asylum matters”.169 Noting that the existence of
domestic laws and the accession to international treaties protecting asylum
seekers do not suffice when they are not adequately enforced,170 the ECtHR
found that the deficiencies of the Greek system indeed required such a
rebuttal. What distinguishes minor from systemic deficiencies was not further
elaborated upon by the ECJ in N.S., but from the circumstances of the case it
can be assumed that the factors of duration and the gravity of the deficiency
played a basic role.171 The Court explicitly ruled that there might be occasions
when the presumption that EU Members are “by and large” capable of
protecting fundamental rights no longer holds.172 This approach is now
formally enshrined in EU secondary law, after the adoption of the so-called
Dublin III Regulation in June 2013. According to Article 3(2) of EU
Regulation 604/2013, when it is impossible to transfer an applicant to a
Member State due to “systemic flaws in the asylum procedure and in the
reception conditions” that may result in a risk of inhuman or degrading
treatment within the meaning of Article 4 EUCFR, the determining Member
State shall establish whether another Member State can be designated as
responsible.173 In this way, the concept of systemic problem became part of
positive EU law on asylum.
As shown by N.S., the concept of a systemic deficiency captures situations
that challenge the presumption on which mutual trust is based.174 This might
in turn prompt the reconsideration of responsibilities between EU Member
166. N.S., cited supra note 161, para 84.
167. Ibid., para 85.
168. ECtHR, M.S.S. v. Belgium and Greece, appl. no. 30696/09 (21 Jan. 2011). See
Moreno-Lax, “Dismantling the Dublin system: M.S.S. v. Belgium and Greece”, 14 European
Journal of Migration and Law (2012), 1.
169. M.S.S., ibid., para 345.
170. Ibid., para 353.
171. See Canor, op. cit. supra note 161, 405.
172. N.S., cited supra note 161, para 84.
173. Regulation (EU) No 604/2013, cited supra note 77. See also the so-called early
warning mechanism, the new surveillance system established to address situations such as
those faced in Greece, Art. 33 ibid.
174. On the connection of the principle of mutual trust with rule of law and the protection
of fundamental rights, see Poiares Maduro, “So close and yet so far: The paradoxes of mutual
recognition”, 14 Journal of European Public Policy (2007), 814; Battjes, Brouwer, De Morree
and Ouwerkerk, The Principle of Mutual Trust in European Asylum, Migration, and Criminal
law: Reconciling Trust and Fundamental Rights (Forum, 2011).
Rule of law
93
States. In grave cases of domestic dysfunction, other Member States might be
required to turn a critical eye to systems of coordination that have been
constructed on the presumption that the standards of Article 2 TEU are
generally met. In effect, the finding by the ECJ of systematic deficiency
regarding Greek asylum procedures resulted in an allocation of responsibility
more equitable both for individual asylum seekers and Greece. The former
were protected from being subject to a clearly insufficient system of asylum
protection, and the latter has in effect shared part of the responsibility of
dealing with a European affair that proved to be beyond its own capacities.175
Moreover, the decision shows that the concept offered in this contribution has
a basis in the Court’s case law.
3.3.
Some constitutional implications
The concept systemic deficiency as well as the presented responses are clearly
not thought for a situation of normalcy. They rather add up to a nascent law of
constitutional crisis.176 Crises are treated by constitutional orders in different
ways. Some suffice with minimal or even no positive regulation at all.177
Others, like the German Grundgesetz, have a fairly detailed set of rules
governing responses to such cases,178 which can be traced back to the dire
experiences in Germany 1932, when the shaky, but democratic government of
Prussia was deposed by a commissioner sent from a proto-authoritarian
federal government.179 Under all liberal constitutions today, reactions to crises
cannot escape constitutional commitments, but are governed by principles
derived by the overall constitutional model.180 We suggest that this is also
the case of the EU, but that the relevant law is still in its infancy.
The overall challenge in this field is dual. On the one hand, the EU needs the
necessary flexibility to respond to situations where the fundamentals of the
175. See Canor, op. cit. supra note 161, 417.
176. This dimension has been thoroughly analysed in Joerges, “Recht und Politik in der
Krise Europas”, 66 Merkur (2012), 1013.
177. Dyzenhaus, “State of emergency”, in Rosenfeld and Sajó (Eds.), The Oxford
Handbook of Comparative Constitutional Law (OUP, 2012), pp. 442, 443.
178. For more details, see Grote, “Regulating the state of emergency – The German
example”, 33 Israel Yearbook on Human Rights (2003), 151.
179. Arguing in favour of the legality, Schmitt, “Die Verfassungsmäßigkeit der Bestellung
eines Reichskommissars für das Land Preussen”, 37 Deutsche Juristen-Zeitung (1932), 951,
953. For the contrary view see Mayer, “Verfassungsbruch oder Verfassungsschutz
(Staatsrechtliche Bemerkungen zum Konflikt Reich-Preußen)”, 7 Die Justiz (1931-32), 545,
564. See also Kelsen, “Das Urteil des Staatsgerichtshofs vom 25. Oktober 1932”, 8 Die Justiz
(1932-33), 65, 89–91, who argued that the legal position of the Federal Government was no less
plausible than the decision of the Staatsgerichtshof that had tried to strike a balance between the
legal views of the Federal Government and those of the Government of Prussia.
180. Dyzenhaus, op. cit. supra note 177, 443.
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European constitutional order are in danger. This is recognized and expressed
in Article 7 TEU. In those cases, the function of the EU as a guarantor of
collective order, its responsibilities to all EU citizens, as well as the close
interdependence of European polities call for coordinated action. On the other
hand, not any action can be justified. No measure should be allowed to
undermine constitutional legality or to betray the constitutional project. In
particular for the EU, the thrust of the measures should keep away from
establishing a semi-hegemonic executive federalism and rather push towards
developing a stronger liberal and democratic European polity.181 Given these
challenges, the responses of the EU and Member States to systemic
deficiencies raise difficult questions of legality and their broader
compatibility with the European project. Some of these issues have already
been discussed throughout this paper. Here, we can only suggest some further
ideas in addressing those issues.
We observe numerous legal problems with the measures adopted to address
systemic deficiencies in the rule of law, in particular fundamental rights
concerns as to the democratic legitimacy of some of the new instruments.
Comparative law teaches the utmost importance of ensuring that the
responses to constitutional crises remain constrained and guided by founding
constitutional principles. For this reason, there is a deep constitutional
concern that a substantial part of the law of constitutional crisis is placed
outside the constitutional framework. The ESM and the conditionalities are
international instruments. Although there are legal and institutional links,
these mechanisms are not under the discipline of the Treaties and their
founding principles. Whereas the ECJ has found this approach to be
constitutional under the Treaties,182 it seems a constitutional objective of high
urgency to streamline the new law of constitutional crises with the European
project set out in Articles 1 to 19 TEU. The same holds true for the surveillance
mechanisms for Bulgaria and Romania. Although they are regulated in the
accession treaties and hence part of Union law, they operate also largely
outside the “normal” constitutional framework.
The coercive element in rule-of-law conditionality also raises important
questions from a democratic perspective, both under domestic constitutions
181. For a manifesto, see Habermas, “Im Sog der Technokratie: Ein Plädoyer für
europäische Solidarität”, in Im Sog der Technokratie – Kleine politische Schriften XII
(Suhrkamp, 2013), p. 82.
182. Case C-370/12, Thomas Pringle v. Government of Ireland, Ireland and the Attorney
General, judgment (Full Court) of 27 Nov. 2012, nyr. See Van Malleghem, “Pringle: A
paradigm shift in the European Union’s Monetary Constitution”, 14 German Law Journal
(2013), 141.
Rule of law
95
and under EU law.183 The unclear demarcation of decision-making
responsibilities, partly due to the use of legally unclear instruments and
procedures, and the limited availability of parliamentary control, European or
domestic, raise the concern that the coercive pressure applied to improve the
rule of law through conditionality lacks sufficient public accountability and
legitimation.184 Furthermore, the monitoring phase, where compliance is
assessed and conditions are actualized, is almost absolutely in the hands of the
staff of the institutions involved, consulting with a few domestic officials. The
convoluted regulatory environment of reports, assessments, prior actions and
benchmarks makes it very difficult for affected constituencies to discern
where power and responsibility are allocated.185 Moreover, the EU and
domestic parliaments have very little say either with regard to the drafting of
the conditions or the progress towards meeting them.
4.
A divisive concept?
The objective of this paper has been to frame one aspect of the widely held
understanding that there is constitutional crisis in the European legal space.
The foundations of the EU legal order are threatened. Politicians,
administrators, judges, and academic commentators are currently in search
not only of mechanisms to address those situations, but also of analytical
instruments to capture them. There is a need for concepts that go beyond the
typical binary code of infringement/non-infringement while remaining
consistent with and serving to further articulate the founding principles of
Article 2 TEU.
The concept of systemic deficiency in the rule of law as elaborated here
from core provisions of the EU Treaty, ECJ case law, and comparative law can
capture many assessments of European, international and academic
institutions on serious weaknesses of certain administrations and courts. It
applies when the operations of those institutions undermine the social
function of law, create serious externalities, question the Union as a
community of law, jeopardize the essence of EU citizenship or the guarantees
of Articles 41 and 47 EUCFR. Such situations exist within the European legal
area and the EU is already reacting to them. As regards those reactions, the
concept of systemic deficiency helps to construe the constitutional basis,
183. For detail Chiti and Teixeira, “The constitutional implications of the European
responses to the financial and public debt crisis”, 50 CML Rev. (2013), 683.
184. On the coerciveness of financial conditionality, see Stiles, “IMF conditionality,
coercion or compromise?”, 18 World Development (1990), 959.
185. See Ioannidis, “EU economic conditionality after ‘two-pack’”, 74 ZaöRV (2014,
forthcoming).
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objectives and limits for the instruments taken. They can be legally justified,
but there are important challenges open for further research. Especially
considering the use of coercive conditionality with great transformative
effects, important legitimacy questions come to the foreground requiring
novel responses.
Stating that judicial and administrative institutions in some Member States
are systemically deficient, and hence that there are somehow “weak
members” in the Union, is troubling and needs to be thoroughly considered. In
a Union rife with mutual distrust, alienated citizens and nationalisms,
depicting some national institutions in such a way might deepen the divisions.
At the same time, simply not tackling deep problems is no way forward; at all
events, a precondition for addressing such problems is first to frame them
conceptually. Moreover, our approach broadens the focus: rather than solely
concentrating on stabilizing the EU or the euro area, it stresses the right of
European citizens to be effectively governed by EU law. Systemic deficiency is
the concept used by many, and by shaping it this way we hope to advance a
discourse that contributes overcoming the crisis.
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