Some Ideas for Research Agenda Combining Doctrinal Law and Empirical Legal Studies
This blog post explores one of the most striking trends in the practice of European Union (EU) law, namely the growing recourse to litigation by EU Member States and European institutions to define the scope and meaning of the fundamental values of the EU. Although the fundamental values of the EU are enshrined in Article 2 of the Treaty on European Union (TEU), they lack a precise definition in the text of the Treaty. The TEU simply lists the fundamental values of the EU, which include human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. Given the growing dissensus and contestation over democracy and the rule of law within the EU, Member States and European institutions are increasingly using legal means to uphold their competing understanding of the scope of these values and their resulting obligations, including the strategic recourse to domestic and European courts.
Scholars have described the EU as a highly legalized organization. According to Abbott, Keohane, Moravcsik, Slaughter, and Snidal, highly legalized institutions “are those in which rules are obligatory on parties through links to the established rules and principles of international law, in which rules are precise (or can be made precise through the exercise of delegated authority), and in which authority to interpret and apply the rules has been delegated to third parties acting under the constraint of rules.” In the case of the EU, the Member States and European institutions are bound to respect the fundamental values of the EU notwithstanding the fact that the scope and resulting obligations of these values were not precisely defined in the TEU. Therefore, in the context of a dispute over the meaning of the fundamental values of the EU, the Court of Justice of the European Union (CJEU) has the responsibility to decide on the matter and ensure that in the interpretation and application of the law of the EU is observed.
In this blog post, we first briefly discuss the infringement procedure launched by the European Commission against Poland over alleged violations overrule of law requirements, which is the most recent case of the use of litigation over fundamental values of the EU. Second, we engage in an analysis of the implications of this case, and more generally the increasing use of litigation over the fundamental values of the EU, as a research object for conducting empirical and doctrinal research in EU law. In this section, we argue that an analysis of this object of study needs (or asks for) a synthesis between doctrinal law and empirical studies of law. Third, we provide an outline for a common research agenda based on the recognition of the contribution of both doctrinal law and empirical studies of law to make sense of the litigation over the fundamental values of the EU. We conclude with some reflections on the way forward to make sense of this phenomenon through the complementary insights provided by doctrinal law and the empirical studies of law.
The Infringement Procedure Against Poland’s Application of the Rule of Law: A Brief Summary
On 8 June 2023, the European Commission (Commission) launched an infringement procedure against Poland for various alleged violations of the law of the European Union (EU). This procedure is the latest of a series of litigation over Poland’s application of the rule of law. The Commission considers that the new Polish law creating a State Committee for the Examination of Russian Influence on the Internal Security (the “Committee”) violates EU law (the “Act”).
The Lower House of the Polish Parliament (the Sejm) passed the law on May 26, 2023, overturning the position of the Upper House of Parliament (the Senate). The Act’s purpose is to allow national authorities to investigate Russian influence in the Polish political arena, and to provide Polish authorities with the necessary means to prosecute the actors found to be working for the benefit of the Kremlin. However, certain aspects of the law seem to indicate that it could be used to attack political opponents of the governing coalition led by Poland’s Law and Justice Party (PiS). Indeed, the Act was referred to as the “Lex Tusk” as it is thought that its main real purpose is to put Donald Tusk – the leader of the opposition and former President of the European Council – out of the race for the next Polish general elections scheduled for October 2023.
Those who fear that the Act may be easily misused to keep out the opponents to the coalition led by the PiS have good reasons to think so. Mainly due to the fact that the Act will have effects retroactively given that its express objective is to analyze a period of time going from 2007 to 2022, a period during which Tusk and its Civil Platform party held office. In addition, recent declarations by Janusz Kowalski, a Member of Parliament representing the right-wing partner in the PiS coalition, stated that “we will put the pro-Russian Donald Tusk before the State Tribunal, and then we will put him in prison,” are not reassuring. Such an extreme move by the government, which risks fuelling further domestic protest against, may be a reaction to the latest predictions for the next Polish elections, which show that Tusk’s Civic Platform is catching up with PiS and forecast a close encounter.
Before the initiation of the infringement proceeding, not only the EU but also the US displayed concerns about the newly adopted law, pointing out to how it can interfere with due process and free and fair elections, and more generally with Polish democracy. In that regard, the press release motivating the opening of the infringement proceeding is illuminating, for the following points it makes.
- First, the Act includes a very broad and vague definition of what is to be under Russian influence, which could violate the principle of legality. Furthermore, the sanctioning powers of the committee crated by the Act include punishments similar to criminal penalties, including prohibitions for public officials to hold any office with public-expenditure powers up to 10 years. In addition, it works retroactively – its aim is to investigate political actions from 2007 to 2022. Consequently, the Act could breach the principle of non-retroactivity in criminal matters and, again, the principle of legality. Both principles are protected by Article 49 of the Charter of Fundamental Rights of the European Union (the “Charter”).
- Second, the Committee to be created by the Act is a non-judicial public authority that can adopt decisions including de facto criminal offences. Although administrative courts can examine the actions of the Committee, judicial review is limited to the treatment of the law and cannot involve a second revision of the facts in the case or the weighing of evidence. Therefore, the powers of the Committee seem to be
in breach of the rights to effective judicial protection enshrined in Article 47 of the Charter and the ne bis in idem principle, protected by Article 50 of the Charter.
- Third, the broad powers of the new authority to process personal data without a clear legal basis and bypassing essential safeguards for sensitive data, may be incompatible with the right to privacy (Article 7 Charter), the protection of personal data (Article 8 Charter), and EU data protection rules, namely, the General Data Protection Regulation (the GDPR).
- Lastly, if the above-mentioned violations were to be upheld by the Court of Justice of the European Union (CJEU), they would, in turn, constitute a violation of the principle of democracy found in Articles 2 and 10 of the Treaty on European Union (TEU). The Commission considers that the vagueness of the wording in the law together with the unchecked punitive powers enjoyed by the committee will result in “unduly interferes with the democratic process.” Such powers can be instrumentalized to attack the opposition and disqualify political rivals. In short, this direct threat to “the political rights of persons elected in democratic elections” would constitute a blatant breach of the principle of democracy, enshrined in Articles 2 and 10 TEU.
Nevertheless, the proceeding is still far from reaching the CJEU. It is still in its early stages. The first step, the letter of formal notice has been sent. Its purpose is to merely request further information from the country concerned but it gives way to the next stage: the reasoned opinion. The latter constitutes a formal request to comply with EU law. If Poland still does not comply with the reasoned opinion or does not notify it within two months, the Commission may refer the case to the CJEU. However, that last step is political in nature rather than bureaucratic, which means that, instead of being automatic, the Commission may suspend or postpone the referral of the proceeding for ulterior reasons. In fact, most cases are settled before being referred to the court
On top of that, the numerous procedural stages of the infringement procedure work against the Commission. As the “Muzzle Law” case proved, Polish authorities act swiftly when attacking checks and balances of the Polish constitutional system. In contrast, the slow advance of the proceeding and the time required to decide a case, which usually comes years after the referral of the case, render the Commission’s efforts futile. Furthermore, even when the case is quickly referred to the Court and pecuniary interim measures are taken, it is not guaranteed that the Polish government will obey.
For a Synthesis Between Doctrinal Law and Empirical Studies of Law in Researching Litigation over Fundamental Values within the EU
In this section, we engage in an analysis of the implications of the recent developments regarding the infringement procedure against Poland – and more generally the growing use of litigation over the fundamental values of the EU – for the development of a research object that bridges doctrinal and empirical legal research. These implications are double. First, to understand this research object, it is first necessary to engage in a normative investigation of the fundamental values of the EU in order to identify the norms that are involved. The task of the researcher therefore consists of intellectually capturing and sorting the legal rules and norms that are forming a specific normative phenomenon. In our case, we are interested in the specific norm referred to as the principle of democracy within the EU. For example, as we will illustrate below, providing a comprehensive understanding of this research object calls for the normative study of the principle of democracy that is (or will be) debated before the CJEU. Therefore, legal doctrine aims to answer the following questions: “what is the definition and content of the principle of democracy?” and “how it can be the base of an infringement proceeding?”
However, this normative approach to the study of law is not sufficient to capture the use and the practice of litigation over the fundamental values of the EU, because it ignores the social context in which law is made in the specific EU context and is not conducive for reflectivity. A purely doctrinal analysis may narrow down the possible interpretations of a norm, but rarely will it provide a single valid answer. When a few interpretations are legally valid, factors external to the legal order itself (for example political and social surroundings), may decide what the ultimate interpretation of the norm will be. Therefore, we argue that an examination of this research object needs a synthesis between doctrinal law and empirical studies of law. This is where comes the second implication. The investigation of our research object commands the mobilization of the socio-legal approaches to law which are aimed at understanding ‘how the norms are made?' and ‘how the norms actually function in action?’
In 2016, Holtermann and Madsen provided a theoretical model that situates the various arguments on the role of empirical studies in international law. Their model is articulated into a typology of three epistemological understandings at the interface of law and empirical studies, which they coined as toleration, synthesis, and replacement. Holtermann and Madsen pointed out that some legal scholars like Weiler or Koskenniemi have achieved a work of synthesis through “the mutual recognition of the key value of the respective disciplines for understanding law in its totality.” However, our understanding of synthesis is closer to that of Shaffer, meaning that we consider legal doctrine and empirical legal studies as “mutually informative, complementary ways of understanding [EU law].” For the purposes of this blog post, we only engage with the notion of synthesis, which was defined by Holtermann and Madsen as the “mutual recognition of and simultaneous engagement in both doctrinal legal science and variations of empirical studies of law.” In other words, the synthesis approach applied to our research object allows for the “bridge” of both law and empirical legal studies in order to make sense of the litigation over the fundamental values of the EU. In short, the synthesis approach is required to investigate the growing use of litigation over the fundamental values of the EU because this research object necessitates both “a study of the norms and a study of the making of the norms and the norms in action.” The next two subsections provide a brief overview of both the doctrinal and the socio-legal perspectives in that regard.
A Doctrinal View: Operationalizing the Values of the Union through Litigation
This infringement proceeding is the latest development in the trend of operationalizing the fundamental values of the Union provided by Article 2 TEU. By the term “operationalization” we refer to the process of developing (or discovering) the content of a legal concept, creating a standard for its protection, and, as a result, making it possible to bring a Member State before the CJEU in case that Member States breaches the aforementioned standard for the protection of the legal concept. Before their proactive use by the CJEU described below, the values were merely a statement of intentions showing the abstract values and principles that inspired the founding Treaties, a rhetorical tool. The values appeared to have a role not far from what is normally understood to be the function of a preamble to a law. That is, to better understand the provisions and at most help to interpret the articles of the law.
Such an assumption was quickly debunked by the CJEU in the ASPJ judgment. There, for the first time, the Court reviewed the actions of a Member State against one of the fundamental values. In ASPJ, the principle of the rule of law served as a benchmark to determine whether a salary reform of the judicial power by the Portuguese government – adopted following the Memorandum of Understanding and deemed necessary by the Portuguese government to comply with the conditionality requirements attached to financial assistance during the Eurocrisis – compromised the independence of judges.
But, how the fundamental values of the EU are operationalized? How can the CJEU assess whether or not a Member State respects the abstract principle of democracy? The task of the lawyer is to look for provisions in the treaty that function as lex specialis of the value at stake. These articles work in different ways. They may give a definition of what the value consists of, for example, the CJEU stated in the rule of law Conditionality case against Poland that: “Articles 6, 10 to 13, 15, 16, 20, 21 and 23 of the Charter define the scope of the values of human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men, contained in Article 2 TEU”, as Articles 19(1) TEU and 47 Charter define the principle of the rule of law (para. 193). However, the CJEU can also autonomously define what a fundamental value consists of (para. 329).
Other provisions in the Treaties allow EU institutions to adopt secondary legislation to implement those values. That is, to similarly define the content of the values, which may simply consist of a codification of the definition of the Court, to lay down in a more detailed fashion what kinds of acts constitute a breach, and/or how to respect them. Such is, for instance, the function of Articles 8 and 10, Article 19(1), Article 153(1)(i) and Article 157(1) TFEU in relation to the values of equality, non-discrimination and equality between women and men respectively (para.195).
Therefore, the referred claim pushed by the Commission, arguing that Poland is violating the principle of democracy by branching Article 10 TEU, which works as lex specialis of the principle could be understood as an attempt at further developing – or discovering– the definition and content of a fundamental value that until now has been kept in the background.
Why Litigate the Fundamental Values of the EU? Perspectives From Socio-Legal Studies
The so-called empirical turn in international legal scholarship theorized by Shaffer and Ginsburg in 2016 gained influence among European law scholars over the last few years. Building on the existing legal scholarship, empirical legal scholars now stress the importance of the “study of the conditions under which the international [or European] law is formed and has effects.” This research goal contrasts with the one put forward by legal doctrinal lawyers. As put by Smits, legal doctrine aims to engage in an intellectual work of description, prescription, and justification of the normative complexity of the law, which is, in our case, the principle of democracy within the EU. In the previous section of this blog post, we engaged in such a work of doctrine through its operationalization, by operationalizing the principle of democracy, and creating a standard for its protection in order to make it possible to bring a Member State before the CJEU if this very Member State breaches that standard of protection. However, we argue that there exists a gap in this analysis: the legal doctrinal method avoids explaining why the operationalization of the principle of democracy is carried out in a certain way by the various European actors who engage in this exercise. Through the investigation of the context in which the operationalization of the principle of democracy is carried out and the mapping of the actors involved in it alongside their motivations, we conclude with the words of Shaffer and Ginsburg that “the empirical trend in international [and European] legal scholarship has great potential to inform normative work on questions of institutional design and practice.”