Raquel Cardoso, Assistant Professor of Criminal Law and Procedure at Lusíada University – Porto

Every now and then, certain topics emerge in European legal discourse that gain sudden attention. Currently, one of those topics is treaty reform. While there are larger factors, such as the expansion of the European Union (EU), that have prompted this discussion, the idea of reform is being reconsidered. The multiple thoughts on what should change^[1]encompass a wide range of subjects, but the place of the individual and access to justice, especially in the context of fundamental rights protection within the Area of Freedom, Security and Justice (AFSJ), seem to be overlooked.

One of the most important aspects of the EU is the protection of fundamental rights. This is not a new topic^[2], but it is one that requires continuous evaluation. It is also the legal foundation upon which several mechanisms are allowed to exist, as the equivalent protection of fundamental rights (now guaranteed through the Charter of Fundamental Rights of the EU – CFREU) fosters mutual trust among Member States, which, in turn, is the cornerstone of the AFSJ^[3].

There are also fields of law, such as criminal law, that have almost inevitable implications for individuals’ fundamental rights. Aside from the fact that the protection of fundamental rights can now prevent cooperation between fellow Member States^[4], there is still a flaw that can be spotted at the intersection of these two areas: namely, the direct access to (European) justice by an individual when they claim a violation of their fundamental rights. So how can individuals currently access justice at the EU level in order to argue a violation of their fundamental rights? And is there a need for change in this regard? A practical example will be used with a view to demonstrate the existing flaws.

Consider the European Arrest Warrant (EAW), for instance. A given Member State issues a EAW, and during the execution process, the individual raises concerns about their fundamental rights, posing questions that should be referred to the Court of Justice of the European Union (CJEU). National courts, however, resolve these questions internally and determine that the surrender should proceed. When the procedure is thus concluded, there is currently no (established) legal possibility for the individual to present their arguments or questions to the CJEU, as the Member State did not refer the issues to it. 

The seriousness of this problem varies depending on the Member State and their willingness to engage with the CJEU.^[5]However, the main point remains: in a simplified European surrender mechanism that significantly impacts the individual, with limited grounds for refusal and based on European fundamental principles, the CJEU, which is responsible for interpreting EU law, is solely dependent on the will of Member States’ courts to do so. 

Regarding the preliminary ruling, there is no doubt, according to Art 267 of the Treaty on the Functioning of the EU (TFEU), that only courts can refer questions to the CJEU. However, at least in certain cases, individuals should be able to directly access the CJEU, particularly when they seek to annul a EAW (based on a legality issue), thereby halting its execution. The process of challenging the EAW through an action for annulment (Art 263 TFEU) is somewhat more complex, as the EAW is a measure adopted by one Member State and directed at another. Consequently, at first glance, the person sought cannot be granted standing to challenge the warrant before the CJEU. Nevertheless, there are grounds to believe that the matter is not as straightforward: Art 263 (4) TFEU states that an individual can appeal to the CJEU if the contested act is addressed to them or if it directly and individually affects them. 

However, there is the issue of the requirements outlined in Art 263 (1) and (2). The Plaumann^[6] doctrine can be bypassed in these cases since the act (i.e. the national decision regarding the EAW) is clearly directed at the individual and intends to have an impact on them, allowing for the conclusion that this requirement is automatically fulfilled. Still, there is another issue: for the acts to be brought before the Court, they must be ‘acts of bodies, offices or agencies of the Union’. This would seemingly exclude such proceedings. However, this perspective does not take into account that national courts, when applying EU law, are considered ‘ordinary courts in matters of European Union law’^[7] and, therefore, are part of the EU structure in defending and applying its own law (Art 4 (3) of the Treaty on the European Union), fulfilling this condition as well. 

With regard to the requirement in Art 263 (2) TFEU, which pertains to the ‘infringement of the Treaties or of any rule of law relating to their application’, both the CFREU and the Framework Directive on the EAW are capable of fulfilling it. For these reasons, it is argued that all the necessary conditions for an individual to appeal to the CJEU through Art 263 TFEU in order to challenge the validity of a EAW are met. Consequently, it should be possible to seek the annulment of a EAW before the CJEU. 

There is currently no other alternative,  if what is intended is to submit the EAW to the assessment of the Union’s bodies, which seems to be necessary, taking into account the Advocate General’s Opinion in the Mantello case^[8]. The Opinion emphasises that the EAW cannot be (and is not) solely an internal issue and that it is crucial to consider all the specificities of EU law; if this is so, only the CJEU has the authority to determine whether a Member State’s actions comply with this law.  However, relying solely on the preliminary ruling procedure would not sufficiently address this issue, as there is no actual obligation to use it (even if there is no judicial remedy, national courts can argue that referring the matter to the CJEU is unnecessary based on the acte clair and acte éclairé doctrines).^[9]

Despite these considerations, which require a certain interpretation of the TFEU’s provisions, the conclusion that there are some deficiencies in the effective judicial protection of fundamental rights in the EU is inevitable. The best solution would be to take advantage of the next Treaty reform and either introduce a procedure aimed at assessing violations of fundamental rights^[10] or establish more opportunities for individuals to have direct recourse to the CJEU, bypassing Member States who are unwilling to involve the CJEU in the decision.

This would inevitably require some changes to the Court, given the expected increase in judgments: perhaps a chamber could be established to preliminarily analyse these cases and determine whether they should proceed to the Court, or a section of the CJEU could be formed to rule on matters of fundamental rights^[11]. Be that as it may, such a solution would effectively enhance the protection of individuals, strengthen the EU’s identity as a Union closer to its citizens, and ensure the right to access justice at the European level – something that is currently predominantly left to the discretion of Member States.

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^[1] For a brief analysis, see Gavin Barrett.: ‘Op-Ed: “Reforming the Treaties’, EU Law Live, 15/12/2023, https://eulawlive.com/op-ed-reforming-the-treaties-by-gavin-barrett/.

^[2] Indeed, it can be traced back at least to the famous Solange decisions: Solange I (2BvL 52/71); Solange II (2BvR 197/83).

^[3] Tampere European Council (15-16 October 1999), Presidency Conclusions, <https://www.europarl.europa.eu/summits/tam_en.htm >.

^[4] Since case C-404 and 659/15 PPU, Aranyosi e Căldăraru, ECLI:EU:C:2016:198.

^[5] For instance, Portuguese courts are reluctant to request a preliminary ruling – see Pedro Caeiro, Raquel Cardoso, ‘Country Research Brief [on the application of the FD EAW by Portuguese courts]: Portugal’, < https://stream-eaw.eu/country-reports/ >, p. 9.

^[6] C-25/62, Plaumann, ECLI:EU:C:1963:17.

^[7] CURIA – Presentation – CJEU: https://curia.europa.eu/jcms/jcms/Jo2_7024/en/  

^[8] Conclusions of AG Yves Bot in case C‑261/09, Mantello, ECLI:EU:C:2010:501, paras 91-93.

^[9] Cf. cases C-283/81, CILFIT, ECLI:EU:C:1982:335, and C-28/62, Da Costa en Schaake, ECLI:EU:C:1963:6. The acte clair doctrine refers to legal provisions that require no interpretation due to their clarity, while the acte éclairé doctrine is meant to exempt from the preliminary ruling questions that are similar to those that have already been interpreted by the CJEU.

^[10] Nadĕžda Siskova, ‘Treaty of Lisbon and Charter of Fundamental Rights of the EU. Future Prospects’ (2008) 26 (2 semester) Temas de Integração, p. 18.

^[11] The CJEU has recently submitted a proposal to change the structure of the Court and the preliminary procedure, but none of the proposed changes address the issue of individuals’ access to the CJEU. The proposal aims to transfer jurisdiction over certain matters from the Court of Justice (ECJ) to the General Court (GC) and expand the right to appeal to the ECJ from decisions of the GC – see ‘Amending the Statute of the Court of Justice of the EU. Reform of the preliminary reference procedure and extension of the leave to appeal requirement’, Briefing, EU Legislation in Progress, < https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/754559/EPRS_BRI(2023)754559_EN.pdf >. For a discussion on the preliminary ruling changes, see e.g., Davor Petrić, ‘The Preliminary Ruling Procedure 2.0’, (2023) European Papers 8(1), European Forum, Insight of 19 April 2023.

Esin Kucuk, Lecturer in EU Law, University of Essex

Over the past decade, there has been a remarkable transformation towards the judicialisation of solidarity, characterized by the Court of Justice’s decision-making extending beyond the traditional boundaries of judicial authority. This trend has been propelled by a complex and multifaceted set of influences. For instance, it can be largely attributed to the increased emphasis on solidarity in various EU Treaty provisions [A1] following the Lisbon amendments. This includes provisions such as Article 2 of the TEU, which sets out the fundamental values of the EU and identifies solidarity as a key element of European society, as well as Article 3 TEU, which calls for solidarity among Member States as a goal of the Union. Additionally, the Treaties require both the Member States and the EU to maintain solidarity in a number of specific policy areas. This encompasses Article 80 TFEU concerning asylum, immigration, and border control, Article 122 TFEU in relation to emergencies and crises, Article 194 TFEU on energy matters, and Articles 222 TFEU and 42(7) TEU regarding security policy.

The above EU treaty provisions are undoubtedly significant, yet they do not fully account for the depth and frequency of the judicialisation of solidarity. The period following the Lisbon Treaty saw only a tepid engagement with the principle, despite the Treaty’s clear emphasis on solidarity, which suggests the influence of other, more compelling factors. Important among these has been a succession of crises, which have provided a conducive environment for the judicialisation of solidarity. Judicialisation has been further intensified by the growing body of EU secondary legislation aimed at implementing solidarity in areas particularly affected by crises, such as asylum and energy[A2] [A3] . This legislative growth has been crucial, not only in expanding the legal framework but also in actively influencing the judicial landscape. 

Another significant factor has been the marked increase in the number of claims that are built on solidarity as a ground for judicial review, a recent example being Case C-675/22 Poland v. Council. [A4] [A5]  This pending case concerns the legality of a new Regulation establishing rules concerning voluntary and mandatory demand-reduction targets for gas consumption. The applicant argues that the Regulation infringes, inter alia, the principle of energy solidarity as set out under Article 194 TFEU. The interesting aspect of this case is that both the contested legislation and the request for its annulment are grounded in solidarity.

However, the key element in the development of solidarity as a constitutional principle has been the Court of Justice’s increasing readiness to engage with it. In tracing the evolving normative force of the principle of solidarity within European jurisprudence, in my view, three critical junctures are particularly noteworthy.[A6] [A7] [A8] 

i. Solidarity as a legality standard

In the unfolding narrative of European jurisprudence, the Case T‑883/16 Opal v. Commission (Opal case) stands as a notable landmark, as this was the first case where solidarity served as a legality standard. Here, the General Court engaged in a significant act of judicial review, annulling a Commission decision on the grounds of contravening the principle of energy solidarity, as enshrined in Article 194 TFEU (paras. 79-85). 

It is important to note that the full potential of solidarity as a justiciable principle remains untested. Firstly, the extent to which this principle can serve as a benchmark in the review of legislative acts has yet to be seen. The Opal case opens the door to this possibility, but the depth and breadth of its application as precedent merits clarification in future jurisprudence. Secondly, while the General Court demonstrated a willingness to use the principle of solidarity as a yardstick in the context of energy, it notably restricted its scrutiny to procedural aspects. 

It is also noteworthy that the General Court, subtly yet decisively, shifted the perspective from a collective ‘one for all’ doctrine to an ‘all for one’ perspective. [A9] [A10]  Traditionally, solidarity as a principle of EU law had been primarily employed to underpin EU measures [A11] that required Member States to make concessions for the collective benefit of the Union. The reasoning of the Court in the Opal case, however, marks a departure from this trend, indicating that the EU’s common interest does not always prevail. This implies that even when a measure is in the EU’s general interest, the principle of solidarity might permit the interests of an individual Member State to take priority. This wider approach underpins the Court’s rationale for the annulment, which revolved around a failure to balance properly the individual interests of the applicant state against the broader interests of the European Union (paras. 77, 82). This reorientation in the Court’s approach is not merely a minor adjustment but a significant stride in the judicial development of the principle of solidarity. 

ii. Member State solidarity as a general principle of EU law

Equally significant is the General Court’s reference to solidarity between the Member States as a general principle of EU law (para. 69). Although this general principle has not yet served as the foundation for a legal claim, its potential normative force should not be underestimated. As mentioned earlier, solidarity is extensively codified in the Treaty across various domains. On the other hand, while there is no explicit mention of solidarity at the Treaty level in some areas, such as environmental protection, the [A12] relevance of the principle is undeniably underscored by recently introduced schemes.[A13]  For instance, the European Climate Law, which mandates Member States to achieve climate neutrality, and Directive 2018/410, focusing on emission reductions, both heavily draw on solidarity as the foundational rationale for the obligations they impose. This is despite the absence of an explicit requirement in the Treaty to act in solidarity per se. The general principle of solidarity may be instrumental in underpinning the legal validity of any act that imposes environmental protection obligations, even when such acts face challenges based on the principle of energy solidarity.[A14] 

iii. Solidarity as a fundamental principle of EU law

Perhaps the most crucial advancement in the justiciability of solidarity is its recognition as a fundamental principle [A15] [A16] by the Court of Justice (para. 38). On appeal in Opal, the Court of Justice upheld the General Court’s decision, but referred to solidarity as a fundamental principle. How does this differ from the General Court’s approach? The General Court’s acknowledgment of solidarity among the Member States as a general principle is undoubtedly a key development. However, it appears to deliberately circumvent a more expansive ambit of solidarity. Solidarity, as a fundamental principle, goes beyond mere Member State interactions and encompasses the broader social dimensions of solidarity, which are particularly evident in the context of interactions among EU citizens. The suggestion of the Court that solidarity, as a fundamental principle, underpins the entire EU legal system (para. 41) [A17] reflects its relevance also in social spheres within the Union.

It is important to highlight that this mention of solidarity as a fundamental principle is not an unprecedented move by the Court of Justice, as it has previously acknowledged that solidarity was a fundamental principle in the context of solidarity between different undertakings (para. 59). Additionally, the Court’s application of the concept of solidarity in social contexts, as seen in Case C-184/99 Grzelczyk (para. 44) without clear legislative support, reflects a broader application of this principle. However, the Court has been reluctant on occassion to use solidarity as a key interpretative tool. For instance, in Case C-370/12 Pringle, the Court could have applied solidarity to interpret the ‘no bail-out’ clause in Article 125 TFEU more restrictively, but chose not to. This cautious approach suggests that the principle of solidarity, while maturing, had not yet fully ripened. Telling is AG Kokott’s Opinion (paras.142-143), suggesting a narrow interpretation of Article 125 TFEU without acknowledging the status of solidarity as a principle, and consequent legal obligations attached to it, though clearly recognising its constitutional status and relevance. 

Conclusion

What then differentiates the current legal landscape post-Opal? There is an observable synergy in the advancement of solidarity, discernible in recent legal developments, most notably Next Generation EU. One can perhaps add to this the advances made in the New Pact on Migration and Asylum, in which solidarity plays a central role. Interpreting these developments as a natural consequence of a societal shift towards greater social integration and the formation of a shared common identity requires a mix of imaginative and, perhaps, optimistic thinking.

A more compelling explanation lies in the context in which solidarity is being reaffirmed as a fundamental principle. These instances are embedded within a broader legal framework that concerns the judicialisation of fundamental EU values and principles, particularly the rule of law (C-156/21  Hungary v Parliament and Council). The linkage of solidarity, fundamental principles, and values that are considered the backbone of the EU legal order is a clear manifestation of where the Court situates this principle within the EU legal order (para. 129). When seen from this perspective, the increasing normative force of solidarity may not be entirely surprising. Whether the elevation and broadening of the principle of solidarity heralds a beneficial transformation or ushers in new layers of complexity within the EU legal framework is a matter for future contemplation. However, it unmistakably signifies a pivotal moment in the development of European jurisprudence, positioning solidarity as a key concept in shaping the future of the EU legal order.

Some of the ideas shared in this blog are based on my recent article: ‘Solidarity in the EU: What Is In A Name?’(2023) 6(2) Nordic Journal of European Law, 1-28.

Esin is also currently working on a monograph entitled ‘European Integrated Border Management and Solidarity: The Limits of Protection Responsibility’ which will be published by Hart Publishing.

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