CJEU fails the test of the rule of law and respect for the right to a trial

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• The Court of Justice of the European Union refused to consider the complaint of the Ordo Iuris Institute against the European Parliament resolution “on the de facto ban on abortion in Poland”.

• According to Ordo Iuris, the resolution violated the rule of law and personal interests of the Institute.

• In the opinion of the Institute’s lawyers, the Court’s decision constitutes a violation of the right to a trial.

• Ordo Iuris announces that it will file an appeal against the Court’s decision.

On 26 November 2020, the European Parliament passed a resolution “on the de facto ban on abortion in Poland”. The resolution raises serious concerns, not only of a legal nature. They concern the lack of competence of the EU to deal with the assessment of the law protecting life in a Member State, the numerous statements of an ideological nature contained therein, and the opinions presented therein testifying to a complete lack of understanding not only of the political but also of the legal situation in Poland.

In addition, the resolution includes a sentence directly referring to the Ordo Iuris Institute. It was called a “fundamentalist organisation”, “closely linked to the ruling coalition”, intended to be “the driving force behind campaigns aimed at undermining human rights and gender equality in Poland” and calling for the creation of “LGBTI-free zones”.

Ordo Iuris complaint to the CJEU

As a result, the Institute challenged the resolution before the CJEU, pointing out that the European Parliament exceeded its own and the European Union’s competences, as conferred by the Member States in the founding treaties, and infringed the provisions of those Treaties, including in particular the rule of law. It is not within the competence of the EU to decide on the “availability” of abortion in the Member States, to recognise abortion as a human right, and to verify whether the legal systems of the Member States guarantee this “right to abortion” within the institutions of the rule of law. The Institute also alleged that the resolution unreliably presents the norms of international law, assuming that the right to abortion or sexual and reproductive rights belong to human rights and as such are protected by legal institutions created for this purpose.

Ordo Iuris also emphasised in its complaint that the resolution violates the principle of the rule of law, recognised by the Treaty on European Union in Article 2 as one of the fundamental values on which the Union is based. This violation consisted in the inclusion of untrue and damaging statements against the Ordo Iuris Institute, damaging the personal interests of the Institute as a foundation and legal person, which should be unacceptable in a Union legal system guaranteeing the rule of law.

A test for the European Union

The Institute was aware that the admissibility of the complaint against the resolution might be controversial in light of Article 263 of the Treaty on the Functioning of the European Union (TFEU), which was the legal basis for the complaint. The question of whether the CJEU admits the complaint and deals with the substance of the allegations raised therein was intended by Ordo Iuris to be a test for the European Union of the rule of law and the fundamental right to a fair trial, which is protected by EU law in Article 47 of the Charter of Fundamental Rights.

The abovementioned Article 263 of the TFEU does not clearly define what acts of EU organs or bodies may be challenged before the Court for annulment. The Member States, in the successive treaties amending the founding Treaties, and the CJEU in its case law, have extended the range of acts that can be challenged in this way and the range of entities that can lodge a complaint. This was motivated precisely by the right to a trial.

The doctrine of EU law and opinions of Advocates General of the Court have recognised tension between the fact that numerous acts issued by various EU institutions produce different legal effects and interfere with the sphere of rights of individuals (natural and legal persons), and the fact that the rule of law and the right to a trial as a fundamental right require that an individual who feels affected by such an act should have an effective legal remedy to challenge its legality. This is why demands are still being made, and not from Eurosceptic circles, to extend the possibilities of challenging acts of the EU institutions.

Such an extension could be achieved by amending the EU treaties or, as has already happened, by changing the case law of the CJEU. Therefore, the purpose of the complaint filed by Ordo Iuris, apart from challenging the European Parliament’s resolution (which should be considered defective for many reasons), and indirectly defending the rights of the Institute itself, whose personal rights were violated in the resolution, was precisely to open a wider way for EU citizens to challenge acts issued by its institutions.

The test of the rule of law and respect for the right to a trial has not been passed by the European Union. The Court has not dealt with the complaint at all. However, it did not rule – as might have been expected if the Court had not decided to modify its previous approach – that the Institute was not entitled to a complaint under Article 263 of the TFEU, or that an act such as the contested resolution was not subject to review by the CJEU, but resorted to a purely procedural solution.

The issue of the representative’s independence

The Court stated that the representative (legal adviser) who lodged the complaint on behalf of the Institute “does not have the status of an independent third party in relation to the complainant [the Institute]”. This allowed the Court to “dismiss the complaint as inadmissible without considering whether the contested act is an act that can be challenged”.

In this arbitrary manner, the Court has greatly expanded the already demanding requirements in its case-law as to the status of representatives who lodge complaints on behalf of complainants. To date, it has held that such a representative (advocate or legal adviser) may not be employed by the complainant under an employment contract and may not hold positions with significant administrative and financial power at management level. This is why the Institute entrusted the case and representation (in addition to the advocate and legal adviser, who are members of the management board) to a legal adviser who independently provides legal services within a law firm cooperating with the Institute.

As regards the Ordo Iuris complaint, the Court found that there were links between this very representative (legal adviser), who had lodged the complaint on behalf of the Institute, and the Institute, which “clearly impaired” his [the representative’s] ability “to defend the complainant’s best interests with complete independence”. In this respect, it considered the absence of the representative’s employment with the Institute, the absence of any function within its structure, and the independence resulting from membership in a profession of public trust to be insufficient guarantees. Instead, according to the Court, the disqualifying relationship of the representative with Ordo Iuris was determined by the fact that “there is a de facto link in the form of professional cooperation” between him and the Institute. These consist in the fact that he is a lawyer providing legal assistance to the Institute’s beneficiaries within the framework of the litigation intervention programme and that he cooperates with a law firm whose partner is the President of the Foundation.

Consequences of the ruling

This interpretation has appeared for the first time in the case law of the Court. It leads to at least three important consequences. First, any lawyer who cooperates with a client (even if he or she simultaneously provides services to multiple entities) may now prove to be insufficiently independent to conduct proceedings for that client before the Court, as there will be a “de facto link in the form of professional cooperation”. Second, there are no clear and specific criteria in the provisions or in the Court’s case law for assessing whether this de facto connection impairs the ability of the representative to “defend with full independence the best interests” of his or her client. Third, the Court’s decision as to whether a particular representative has this capacity is entirely discretionary and unverifiable in practice.

This far-reaching concern of the Court to ensure that the Ordo Iuris Institute is represented in the proceedings before it by a representative capable of “defending the best interests of the Institute with full independence (...)” led the Court to reject the Institute’s complaint as “clearly inadmissible” and not to address the merits of the case at all.

In the Institute’s view, this constitutes a serious breach of the right to a trial as a fundamental right and of the rule of law. The Court has created new conditions for the “independence” of representatives, which are purely arbitrary and unjustified by the provisions of the law and its previous case-law. In this way, it deprived the Institute of the right to consider the submitted complaint. Therefore, Ordo Iuris intends to appeal against the ruling issued (it is a first-instance ruling for the time being).

Notwithstanding the foregoing, Ordo Iuris intends to appeal to the CJEU in another available procedure, namely under Article 340 of the TFEU, which allows the European Union to seek redress for damage caused by its institutions. In this case, it would be the matter of protecting personal rights violated by the European Parliament’s issuance of a resolution containing untrue and damaging statements about Ordo Iuris. This will be another test of the rule of law in the European Union – whether it allows protection of personal rights at a level at least similar to that in force in, for example, Polish civil law.