A Dilemma of Two Communities: How the Portuguese-speaking Countries Mobility Agreement Might be Conflicting with EU Law

 

 

Ana Rita Gil*, Aylin Yildiz Noorda** & Lucas Ricardo***

 

* Professor, Law Faculty of the University of Lisbon, Portugal. Researcher at the Lisbon Public Law. Email: anaritagil@fd.ulisboa.pt.

** Postdoctoral Researcher at the Lisbon Public Law Research Centre, University of Lisbon, Portugal / Non-resident Research Fellow at the World Trade Institute (WTI) and the Oeschger Centre for Climate Change Research (OCCR), University of Bern, Switzerland. Email: aylin.yildiz@wti.org. This research has been funded by the Swiss National Science Foundation (SNSF) under grant no P500PS_210910.

*** Investment Policy Consultant at UNCTAD. Email: narciso_lucas@hotmail.com

 

Photo credit: Donatas Dabravolskas, via Wikimedia Commons

 

The recent decision of the European Commission to launch infringement procedures against Portugal concerning the provisions of the Community of Portuguese-speaking Countries (CPLP) Mobility Agreement has placed this new framework in the spotlight. Concluded by Portugal, Angola, Brazil, Cape Verde, Guinea-Bissau, Mozambique, São Tomé and Príncipe, Timor-Leste and Equatorial Guinea in 2021, the CPLP Mobility Agreement facilitates the movement of the citizens of the CPLP member states within the boundaries of ‘the same language space’. As the CPLP Executive Secretary Zacarias da Costa put it, the agreement goes ‘way beyond a set of piecemeal measures’, establishing a legal framework with a flexible and variable system suited to each state’s specificities. Notably, the Mobility Agreement aims to streamline the process for acquiring temporary residence visas and permits, with around 150,000 applications reportedly undergoing processing by the Portuguese Foreigners and Border Service (SEF). In this post, we examine the adoption, content, and implementation of the Mobility Agreement, commencing with a brief introduction to the CPLP.

 

Founding the CPLP

 

The inception of the CPLP traces back to early 1980s when the Portuguese Minister of Foreign Affairs at the time, during an official visit to Cabo Verde, endorsed decentralised tricontinental dialogues as a means to formalise the connections between Portugal and its former colonies. This initiative gained momentum in the 1990s, primarily due to the dedicated effort of the Brazilian ambassador to Portugal at the time, and resulted in the creation of the organisation in 1996. Although the CPLP was ostensibly established with benign objectives, centred on fostering cooperation across various areas rooted in a professed shared language and culture, it appeared to be the ‘political face’ of the Lusophone world. In this regard, it bears a resemblance to its French- and English-speaking counterparts, albeit neither the Organisation internationale de la Francophonie nor the Commonwealth of Nations have adopted a mobility agreement of the kind seen within the CPLP.

 

Initially comprising seven member states, the CPLP expanded with the admission of the newly independent state of Timor-Leste in 2002 and Equatorial Guinea in 2014. Brazil stands as the largest member state in terms of territory, population and economy, boasting the highest number of Portuguese speakers. However, projections indicate that by the close of the 21st century, the majority of Portuguese speakers will likely reside in Africa, attributed to demographic growth in Angola and Mozambique. While the list of potential future CPLP members may seem to have been exhausted, the CPLP has proactively introduced the category of an ‘observer’, enabling international organisations and interested countries to participate in CPLP summits and Council of Foreign Affairs Ministers meetings, albeit without voting rights.

 

Adopting the Mobility Agreement

 

The CPLP’s founding texts had already established the objective of ‘contributing to the strengthening of human ties, solidarity and fraternity among Peoples who have the Portuguese Language as one of the foundations of their specific identity and, in this sense, promoting measures that facilitate the movement of citizens of Member Countries within the CPLP space’. Acting on this, the CPLP member states agreed to explore possible avenues for policy development in mobility issues in the Praia Declaration in 1998. Two years later, a working group was established to facilitate intra-CPLP mobility and to ensure the equality of social and political rights among CPLP member state citizens. Several agreements followed soon after, including on common maximum requirements for short-term visa applications in 2002 and student visas in 2007. During this period, the goal to institute a Lusophone or CPLP citizenship status garnered much attention but has not reached a consensus. In the meantime, the path was laid for a mobility agreement, which was eventually signed in Luanda, Angola, on 17 July 2021, following seven sessions of text-based deliberations.

 

Facilitating Three Types of Movement

 

The Mobility Agreement does not create a free movement regime. Instead, the CPLP member states have established minimum standards to facilitate three types of movement: short stay, temporary stay, and residency. Although short stays do not necessitate prior administrative authorisation, temporary stays (with a duration not exceeding 12 months) are conditional upon such authorisation. Conversely, the streamlining of residency contemplates a novel documentation category called the ‘CPLP residence permit’, which may be granted subsequent to the authorisation of a ‘CPLP residence visa’.

 

Sitting at the heart of this framework are the applicable terms and conditions. Essentially, each state is free to choose mobility modalities and categories. This allows the states to undertake obligations gradually and with varying degrees of integration across one or more mobility modalities and/or categories of people, tailoring them to internal circumstances. Each state retains the authority to define, based on its internal legislation, the necessary documentation required to apply for the CPLP residence visa. Furthermore, none of the states are obligated to undertake commitments that are incompatible with their international commitments or regional integration agreements.

 

Implementation by Portugal

 

Portugal approved the CPLP Mobility Agreement by Resolution of the Assembly of the Republic No. 313/2021 of 9 December, implementing it by enacting Acts No. 4/2022 of 30 September, and No. 18/2022 of 25 August.

 

Accordingly, CPLP member state citizens may apply for a temporary-stay visa, work-seeker visa or a CPLP residence visa. Such requests shall be granted outright, unless the applicant is identified in the Schengen Information System as the subject of an alert for return or an alert for refusal of entry and stay. In other words, the applicants no longer need to apply for a visa in person, and are exempted from the prior decision of SEF (which has recently been replaced by AIMA).

 

Furthermore, as of March 2023, certain CPLP member state nationals have been able to apply for a temporary residence permit online. This is not an automatically granted visa, but rather a temporary residence permit granted to CPLP member state nationals who already had migration processes pending at SEF/AIMA or had visas issued by Portuguese consulates. Similarly, those with a CPLP residence visa are entitled to apply for a CPLP residence permit.

 

The decision to grant a CPLP temporary residence permit to citizens who were already staying in the territory, and who were waiting for a residence permit, was also taken with the aim to respond to the high number of pending applications made under the permanent regularisation scheme existing in Portugal. Indeed, Articles 88 and 89 of the Immigration Law establish a ‘right to regularisation’ to citizens who are illegally staying in the territory and who have a labour contract or a promissory agreement to formalize a labour contract. These legal norms attracted a high number of migrants, mainly from Brazil, that entered Portugal with the purpose of seeking job opportunities, and stayed illegally there, waiting for their regularisation. The number of pending procedures amounted to more than 120,000 and the waiting time was exceeding two years. The dissatisfaction among the immigrants’ community was growing, and the Ombudsman reported an extreme rise of complaints against SEF. With the CPLP scheme, the Government was expecting to solve this backlog, that was seriously jeopardizing the good functioning of the services and raising social discontent.

 

European Commission’s Infringement Procedure against Portugal

 

In September 2023, the Commission started an infringement procedure against Portugal. The Commission considers that the Mobility Agreement provides for a residence permit which is not compliant with the uniform format for residence permits for third-country nationals under Council Regulation 1030/2002. Furthermore, the Commission contends that both the residence permits as well as the long-stay visas issued for job-seeking purposes to nationals of the CPLP States do not allow their holders to travel within the Schengen area, in contradiction with EU law.

 

The CPLP ‘residence permit’ consists of a document which simply states that its holder has authorisation to reside in Portugal under the CPLP mobility agreement. The fact that it does not follow the EU’s residence permit format has also contributed to raise several uncertainties in the daily lives of its holders. In fact, it was common for private or even public entities not recognising the document and denying access to some rights, such as opening bank accounts or renting houses. Also, it was very frequent that holders of CPLP residence permits were denied embarkment in international flights or even returning to Portugal by foreigner airports’ officials, who were not familiarised with the document.

 

Portugal has two months to respond to the letter and address the shortcomings identified by the Commission. Portuguese Secretary of State for European Affairs, Tiago Antunes, has already denied incompatibility between the Mobility Agreement and the Schengen regime, and announced that the implementation of the agreement would continue. In the absence of ‘a satisfactory response’ by Portugal, the Commission may decide to issue a reasoned opinion, which is a formal request to comply with EU law. In case the country in question does not comply with the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice of the EU.

 

Conclusion: Is CPLP Mobility Agreement one of a kind or part of a larger trend?

 

The CPLP Mobility Agreement may be seen as a distinctive framework, emanating from a political and cultural cooperation organisation rather than an integrated trade bloc. Integrated trade blocs, such as the EU, African Union (AU), Southern Common Market (MERCOSUR), and the Economic Community of West African States (ECOWAS), have established their own systems of free movement, albeit at various stages of implementation. While trade agreements designed between developed and developing nations have been observed to facilitate human mobility to a certain extent, the extent of such facilitation is typically more limited. The CPLP Mobility Agreement echoes the conventional observation that states operating at differing levels of development tend to facilitate human mobility to a more restricted degree.

 

Nonetheless, the CPLP Mobility Agreement has been observed as being unique for putting an end to an unjustifiable limit to the right to work for certain non-EU citizens in an EU country. In this sense, it can be viewed as part of a larger trend in favour of international cooperation on migration issues. This issue topped the UN agenda particularly post-2015, leading to the adoption of the legally non-binding Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. All CPLP member states have voted in favour of adopting the GCM during the historic UN General Assembly vote, with the exception of São Tomé and Príncipe and Timor-Leste which did not vote. Furthermore, three CPLP member states (Portugal, Cabo Verde and Guinea-Bissau) have submitted voluntary national reports on the implementation of the GCM. In their reports, Portugal and Guinea-Bissau make references to the CPLP Mobility Agreement as instances of successful implementation of the objective on enhancing the availability and flexibility of pathways for regular migration. Also, both states mention in their reports that they have accepted to become a ‘GCM Champion country’ and to contribute to achieving the objectives of the GCM.

 

 

Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

1. Introduction

The ECJ’s judgment in the case of Associação Sindical dos Juízes Portugueses (Case C-64/16) is noteworthy for two reasons. First, it is arguably the most important judgment since Les Verts  as regards the principle of the rule of law in the EU legal system. Secondly, it comes close to being the EU equivalent of the US Supreme Court case of Gitlow as regards the principle of effective judicial protection (Gitlow led to the progressive application of the US federal Bill of Rights to all state norms even when the states act within their own sphere of competence: see AG Sharpston here for a brief account).

With respect to the rule of law, in a couple of inspired and inspiring paragraphs, the Court offers a neat digest of the essential functions and features of this fundamental value in the EU’s legal framework. One of the most innovative and welcome aspects of this judgment is its conclusion on a combined reading of Article 2 TEU (values on which EU is based and common to its Member States), Article 4(3) TEU (principle of sincere cooperation) and Article 19(1) TEU (principle of effective judicial protection of individuals’ rights under EU law):

The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law … It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection. … In order for that protection to be ensured, maintaining [a national] court or tribunal’s independence is essential.

The Court’s ruling in Case C-64/16 may be understood as the Court’s answer to the worrying process of ‘rule of law backsliding’ first witnessed in Hungary and now being seen in Poland. This judgment essentially establishes a general obligation for Member States to guarantee and respect the independence of their national courts and tribunals. What is particularly noteworthy is that the Court has done this solely based on Article 19(1) TEU read in light of Article 2 and Article 4(3) TEU. This reasoning should hopefully lead the Polish government to stop repeating the ludicrous claim that it can introduce whatever judicial ‘reforms’ it sees fit as the organisation of national judiciaries falls outside EU competence. (In any event, the Irish courts have just decided to ask the ECJ whether European Arrest Warrants issued by Poland must be executed, in light of rule of law concerns; see also this review of the recent ECJ case law on EAWs and human rights).

Before examining how this judgment may prove to be a potentially decisive shot across the Polish bows as first noted here by Michal Ovádek (section 4), the facts and outcome of this case will be briefly presented (section 2). This post will also seek to tackle the most challenging ‘technical’ issue raised by this case: when can one challenge a national measure under Article 19(1) TEU, now considered a self-standing provision? It will be submitted that the Court’s approach, which is centred on the notion of ‘fields covered by EU law’ and merely requires the existence of a virtual link between relevant national measures and EU law, is ground-breaking yet compelling (section 3).

2. Facts and outcome

In 2014, the Portuguese legislature introduced a temporary reduction in the remuneration paid to the persons working in the Portuguese public administration, including judges. The Associação Sindical dos Juízes Portugueses (ASJP), acting on behalf of members of the Tribunal de Contas (Court of Auditors), decided to challenge the salary-reduction measures on the main ground that that they would infringe ‘the principle of judicial independence’ enshrined, not only in the Portuguese Constitution, but also in EU law, in the second subparagraph of Article 19(1) TEU (‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’) and Article 47 of the EU Charter of Fundamental Rights (Right to an effective remedy and to a fair trial). This issue was then subsequently referred by the Portuguese Supreme Administrative Court to the ECJ for a preliminary ruling.

What is particularly noteworthy is that the ECJ focused exclusively on Article 19(1) TEU, which the Court described as giving ‘concrete expression to the value of the rule of law stated in Article 2 TEU’ having previously recalled that mutual trust between national courts ‘is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded’. On the basis of a combined and powerful reading of Articles 2, 4(3) and 19(1) TEU, the Court underlines, more than ever before, the duties of national courts under the EU Treaties and in particular, their duty to ensure ‘that in the interpretation and application of the Treaties the law is observed’ while repeatedly observing that in order for the EU legal system to operate efficiently and for individuals to continue to benefit from the principle of the effective judicial protection of their EU rights, it is essential that national courts remain independent.

Whilst the outcome of the case itself is not surprising, it is the Court’s approach which is particularly noteworthy. Before concluding that the ‘salary-reduction measures at issue in the main proceedings cannot be considered to impair the independence of the members of the Tribunal de Contas’, the Court referred to a number of criteria which must guide national courts should they have to review measures which are alleged to infringe judicial independence: Are the measures specific to judges? Are the measures justified by an overriding reason of public interest? Can they be considered to weaken their independence?

In the present case and on the basis of these criteria, the Court convincingly concluded that ‘the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude general salary-reduction measures, such as those at issue in the main proceedings, linked to requirements to eliminate an excessive budget deficit and to an EU financial assistance programme, from being applied to the members of the Tribunal de Contas’.

3. Scope of Application of the EU Principle of Judicial Independence

The principle that national courts must be independent is not new in EU Law (see for instance Article 47 of the EU Charter of Fundamental Rights ‘CFR’ hereinafter). What makes the Court’ ruling in this case particularly significant is the way the Court exclusively relies on Article 19(1) TEU having emphasised early on in its judgment that this provision may be relied upon in national situations irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) CFR.

This is a welcome but nonetheless ground-breaking interpretation. In a nutshell, this interpretation of Article 19(1) TEU gives the principle of effective judicial protection a much wider scope of application that it would have on the basis of Article 47 CFR which is subject to Article 51(1) CFR. Article 19(1) TEU (added to the EU Treaties via the Lisbon Treaty) may therefore be ‘triggered’ in a much broader set of national situations than Article 47 CFR and in areas where there is very little to no EU acquis.

It may be worth briefly recalling at this stage that EU Law cannot be relied upon in every national legal procedure. For instance, in ‘purely internal situations’, where no links with EU law can be established, the ECJ lacks jurisdiction. The scope of application of the EU Charter is similarly limited by its Article 51(1). While the ECJ did adopt a broad interpretation of the notion of ‘implementation’ of EU law by Member States, the Court has also established that where ‘a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction’ (C-617/10, para 22).

The issue of whether the salary reductions of the Portuguese judges constitutes a purely internal situation is therefore key. As there is no EU rule governing the remuneration of national judges, one may have concluded that the ECJ lacked jurisdiction in this case. The temporary reduction in the amount of public sector remuneration was however based on mandatory requirements imposed on the Portuguese Government by the EU to reduce the Portuguese State’s excessive budget deficit in 2011 in order to receive financial assistance. To that extent and as in the case of Florescu (EU Charter applies to national measures adopted to meet the conditions attached to the financial assistance granted by the EU to a Member State), one could have retorted that the salary-reduction measures had to trigger the application of EU Law.

Had the Court gone down that route, Article 47 CFR would have been available to review the compatibility of these measures with EU law, including the principle of judicial independence. Yet, the Court chose another route without much explanation, or even no explanation at all, whereas the Article 47 CFR may also have been applied in the present case. The fact that the Court relied exclusively on Article 19(1) TEU to protect judicial independence at Member State level may be understood as an implicit answer to the increasing and sustained attacks on national courts by ruling parties in countries such as Poland (see section 4). By exclusively relying on Article 19(1), the Court has enabled natural and legal persons to challenge a broader set of national measures. Indeed, the notion of ‘fields covered by Union law’ mentioned in Article 19(1) is broadly interpreted by the Court and should now be understood as being wider than the notion of ‘implementation’ laid down in Article 51(1) CFR.

The Court has gone therefore beyond the limited functional necessity of national remedies sufficient to ensure the application of EU law and now requires that Member States guarantee and respect the fundamental requirements of justice as defined by EU law and the ECJ itself, failing which they can be sued directly on the basis of Article 19(1) TEU. To give an example, Member States must ensure that national courts can exercise their ‘judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever’. Any national measures which infringes this standard may now be found incompatible with the principle of judicial independence on the sole basis of Article 19(1).

What is yet to be determined is how much broader is the scope of Article 19(1) TEU in comparison to the scope of Article 47 CFR. In other words, how should the notion of fields covered by EU Law be understood compared to the notion of situations covered by EU Law (Fransson)?

At the very least, the present ruling now makes it possible for national litigants to rely on the principle of judicial independence in situations where the Charter may not be applicable by relying on Article 19 TEU. This new approach means for example that in cases such as Torralbo Marcos the ECJ would now probably accept jurisdiction to review whether national measures are compatible with the principle of effective judicial protection.

We would further argue that the Court’s present ruling must be understood as making Article 19(1) TEU a relevant standard for reviewing national measures irrespective of whether the situation is connected or not with EU law. Article 19(1) TEU may from now on be relied upon to challenge any national measure which may undermine the independence of any national court which may hear ‘questions concerning the application or interpretation of EU law’ (para. 40). The key ‘test’ is therefore whether the relevant national court has jurisdiction (or not) over potential questions of EU law. If this understanding is correct, the Court’s approach may be viewed as ground-breaking as most if not all national courts are, at least theoretically, in this situation.

In establishing a general obligation for Member States to guarantee and protect judicial independence on the basis of a combined reading of Articles 2, 4(3) and 19(1) TEU, irrespective of whether the situation falls within the scope of EU law, the Court’s ruling is reminiscent of the 1925 US judgment of Gitlow v New York, in which the Supreme Court held that the Fourteenth Amendment to the US Constitution had extended the reach of certain limitations on federal government authority set forth in the First Amendment to the governments of the individual states. In the present case, one may argue that the ECJ has essentially made the EU principle of effective judicial protection (including the principle of judicial independence) a federal standard of review which may be relied upon before national courts in virtually any situation where national measures target national judges who may hear actions based on EU law.

4. A decisive shot across the Polish bows?

The ECJ, by making Article 19(1) a stand-alone provision, has drastically increased the number of situations where litigants (for instance, a trade union representing judges) may challenge national measures which undermine judicial independence. In doing so, the Court has answered the appeal from some scholars to ‘operationalise’ Article 2 TEU by connecting it to other provisions of the TEU such as Article 4(3) and Article 19(1) TEU. In 2016, building up on the scholarship of Professor Scheppele, Professor Kochenov and one of the present authors argued for instance for the combined use of these Treaty provisions so to enable the review of national breaches of the rule of law happening beyond the areas covered by the EU’s acquis:

[T] here is however no legal obstacle preventing the Commission from using the infringement procedure to simultaneously investigate a set of diffuse and/or cumulative breaches of EU values in conjunction with EU principles such as the duty of loyalty, which is enshrined in Article 4(3) TEU … or the requirement that Member States ‘shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ (Article 19(1) TFEU). Article 258 TFEU does indeed speak of the necessity to ensure that the Member States fulfil any ‘obligation under the Treaties’. This also means that there is no legal hurdle preventing the Commission from bundling numerous apparently minor violations to demonstrate a pattern which itself could amount to a breach of Article 2 TEU.

By establishing, on the basis of Articles 2, 4(3) and 19(1) TEU, that Member States must ensure that their national courts meet ‘the requirements essential to effective judicial protection’, the Court has taken a most welcome stance on the existential threat which Hungary and Poland’s descent into authoritarianism poses for the EU’s interdependent and interconnected legal system. A number of statements may be understood as subliminal warnings to would-be autocrats in these two countries but also elsewhere:

‘The guarantee of independence, which is inherent in the task of adjudication … is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice … but also at the level of the Member States as regards national courts’;

‘The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever …’;

‘Like the protection against removal from office of the members of the body concerned … the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence’.

Even more significant are the standards used by the Court when reviewing the disputed measures. For the Court, the salary-reduction measures do not infringe the EU principle of judicial independence because they were a limited and temporary reduction of remuneration to help lower ‘the Portuguese State’s excessive budget deficit’ and applied to various categories of public sector employees. The disputed measures could not therefore ‘be perceived as being specifically adopted (our emphasis) in respect of the members’ of the Portuguese Court of Auditors. This suggests, a contrario, that national measures which are (i) not justified by overriding reasons of public interest; (ii) are permanent and general in nature; and (iii) specifically target the judiciary or specific courts (e.g. a Supreme Court) could be considered by the ECJ ‘to impair the independence’ of relevant courts and their members and as such be held incompatible with the second subparagraph of Article 19(1) TEU.

What should Polish, Hungarian or Romanian judges (to mention but a few of the countries where ruling parties have sought to capture the judiciary) faced with national measures which de facto undermine their authority and independence be prepared to do in practice? As would-be autocrats tend to methodically follow a Rule-of-Law dismantlement blueprint, a Rule-of-Law resistance blueprint may be in order, such as the tentative and brief one below:

(a) National judges should aim (via trade unions preferably to avoid retaliatory measures) to systematically challenge the compatibility of any national measure which affects their independence via new rules amending their status, terms of office, etc., on the basis of Article 19(1) TEU as interpreted in Case C-64/16;

(b) To systematically request from national courts that they refer questions to the Court of Justice to enable it to rule on whether the national measures at issue in each case can be consider the impair the independence of the members of the relevant national court(s);

(c) ‘Friends of the rule of law’ should also aim to lodge complaints with the European Commission to ask it to investigate infringements of Article 19(1) TEU;

(d) With respect to countries where the national judiciary may already be captured in whole or in part by the ruling party, which may result in requests for preliminary rulings being systematically denied even at the level of courts of last resort and/or national judgments offering interpretations of EU law in bad faith, the Commission should systematically initiate infringement actions (Case C-154/08 is noteworthy in this respect).

EU institutions and key actors must wake up to the existential dangers raised by increasing rule of law backsliding within the EU. Following this welcome development in Luxembourg, it is to be hoped that the Commission will stop hesitating about whether to rely on Article 19(1) TEU in its infringement actions (see this post by Professor Taborowski for a critique of the Commission’s moving and excessively cautious legal position in the context of the pending infringement case against the Polish law on the organisation of ordinary courts). One may only hope also that the Commission will aim to think more strategically about rule of law backsliding. It was disappointing in this respect to see the Commission raising the inadmissibility of the request for a preliminary ruling in the present case or failing to initially think of requesting from the Court the imposition of a penalty payment in the Białowieża Forest infringement case when the Polish government so defiantly refused to comply with a previous order of the Court.

The time for dialogue has past. The time for action (and sanction) is now.

Photo credit : IPI

Barnard & Peers : chapter 9, chapter 10