THE STATE OF THE EUROPEAN UNION Towards a new legislative term

SITUATION OF THE RULE OF LAW IN THE EUROPEAN UNION. THE ANNUAL MECHANISM 43 be complied with and the necessary reforms be imple- mented. The added value of these reports is that they constitute a reference point not just for political censure and an instrument of collective discipline which makes it possible to look beyond the short-term frameworks of national politics, but they also operate both as an evalu- ation mechanism for the CJEU when censuring political structures which threaten this judicial independence and thus contradict the respect required for the values of arti- cle 2, and also for application of the budget conditional- ity mechanism, in the sphere of Regulation 2020/2092 on budgetary conditionality, 19 and when it comes to ap- proving and implementing national recovery and resil- ience plans in the framework of Next Generation EU. 20 The paradox consists in the fact that, in flagrant cases of violation of the values of article 2 TEU and the inability to apply sanctions under article 7 TEU, as dem- onstrated by the blockage of the procedures opened against Poland and Hungary, as I explained in detail in my contribution to last year’s report, 21 the constitutional system based on the partial pooling of sovereignty has operated more effectively than in the grey zone of defi- ciencies or the need for improvements to different con- stitutional practices, in order to create a pan-European rule of law system that is essential to the continuation of the integration process. And this has been because in the case of flagrant violations that affect mutual faith in the capacity to re- spect mutually agreed European rules, the method of community integration has demonstrated its real added value, through the vital role of the Court of Justice in its long list of decisions referring to Poland and Hungary 22 and also, with respect to Hungary, through the brave ex- ercise of “sincere cooperation” between the Institutions 19 Regulation of the European Parliament and of the Council of 16 December 2020, on a general regime of conditionality for the protec- tion of the Union budget (OJEU L 433I of 22.12.2020, pp 1-10. 20 Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility. OJEU L 57, of 18.02.2021, pp. 17 to 75. 21 See note 2. 22 See an interesting analysis and development of this subject in SANZ CABALLERO, Susana: “Las violaciones del Estado de Derecho en la UE y el rol del Tribunal de Justicia de la Unión Europea: Problemas y soluciones ¿posibles?” in BAR CENDÓN, Antonio and MARTÍNEZ LÓPEZ-SÁEZ, Mónica (coordinators): “La Unión Europea ante la crisis. Derechos,Valores, Seguridad y Defensa”.Aranzádi 2023, pp. 25 and ss. and the states which has concluded with the adoption, endorsed by the CJEU itself, of the Conditionality Mech- anism Regulation and the powers conferred on the Eu- ropean Commission when approving national recovery, resilience and transformation plans, with reference to respect for the values of article 2 TEU, and the power to freeze or delay payments. As evidence of this, and without going over the same ground as that covered in last year’s report, the follow- ing is sufficient: In the case of Poland, in the judgment of the Grand Chamber in case 204/21 of 5 June 2023, 23 starting with the clear affirmation that the value of the rule of law is “an integral part of the very identity of the Eu- ropean Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States” (paragraph 67), the CJEU finally upheld the appeal of the Commission supported by five states (Belgium, Denmark, Finland, the Netherlands and Sweden), con- sidering that the reform of the Polish judicial system of December 2019, violates the Law of the Union: – In attributing competencies to the Disciplinary Chamber of the Polish Supreme Court, whose in- dependence and impartiality are not guaranteed, to pronounce on issues which directly affect the statute of judges and the exercise of legal functions in the application of the Law of the Union, thus directly af- fecting judicial independence, in contradiction of ar- ticle 47 of the Charter of Fundamental Rights (Right to an effective remedy and to a fair trial). – Furthermore, by imposing on judges the obligation to submit a written declaration stating their membership of associations, non-profit foundations and past polit- ical affiliations, the Polish legislation violates the right to a private life and protection of personal data, and is thus contrary to articles 7 and 8 of the Charter and the General Data Protection Regulation 2016/679. 24 23 Commission v. Poland “independence and private life of judges. ECLI:EU:C:2023.442. 24 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with re- gard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). OJEU L 119 of 4.5.2016, pp. 1 and ss.