Professor Anthony Arnull’s Distinguished Professorial Address – UWE, 24 October 2017

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‘Should we trust the EU?’ was the controversial title of Professor Anthony Arnull’s Distinguished Professorial Address held on 24 October 2018 at the Bristol Law School, UWE. Prof Arnull who holds the Chair of European Union Law at the University of Birmingham and is the author and editor of a wide range of well-known scholarly works in the field (eg The European Union and its Court of Justice (OUP, 2nd ed, 2006), European Union Law: A Very Short Introduction (OUP, 2017), The Oxford Handbook of European Union Law (OUP, 2015)) started his Address by asking the question ‘What does trust have to do with the EU?’. He pointed out that the concept of trust is increasingly invoked by the CJEU in its jurisprudence. The view of the CJEU is that because Member States share the same values they should trust each other to respect them and thus cannot insist on evidence to show that they are being complied with.

Prof Arnull’s first task was to define the notion of ‘trust’. First, he noted that in an article published in 2004 Lenaerts identified a number of principles that should enhance the trust of individuals in the EU: transparency, equality of arms, legal certainty and predictability, and sound administration. (‘In the Union We Trust’: Trust-Enhancing Principles of Community Law’ (2004) 41 CMLRev 317-343). Writing on the same issue in 2017 Lenaerts explained that the CJEU was expecting the constitutional courts of all Member States to monitor the lower courts. (‘La vie après l’avis: Exploring the Principle of Mutual (yet not Blind) Trust’ (2017) 54 CMLRev 805-840).

Looking at the concept in a more general way Prof Arnull explained that Baier understands trust as ‘reliance on others’ competence and willingness to look after, rather than harm, things one cares about which are entrusted to their care’ but that it might be possible to add another dimension to trust, that of risk, a notion introduced by Niklas Luhmann in his extensive writings on the subject. In this context, both parties expect things to go smoothly for the benefit of both (eg hiring a babysitter). So, the question boils down to asking how can someone draw the conclusion that another person is trustworthy? After all, it is about good judgment and usually one relies on evidence to establish such trustworthiness. In other words, the question is: ‘does the person have a good track record?’ Sometimes as it is not easy to gather evidence one needs to use proxy indicators. This is particularly the case in decentralised systems when it is often difficult to find whether trust is met. Trust can indeed be misplaced and so there might be a lack of trust.

Going back to the European Union Prof Arnull asked whether it is rational to trust the EU. He observed that a high degree of trust had been displayed by the European States between the 1950 Schuman declaration and the 1957 Treaty of Rome that established the European Economic Community. Yet, the States also seemed not to trust each other, considering the possibility that a State might not live up to its treaty commitments. The Commission was tasked with ensuring that the treaty be applied, and an enforcement procedure was established under Article 169. Prof Arnull also went back to the enforcement procedure under the European Coal and Steel Community to prove his point. After all, the idea of policing States tends to show a lack of trust. Such an argument is supported by the introduction in the Treaty of Maastricht of the possibility for the Commission to start a second set of proceedings against States with a view to obliging them to pay financial penalties if they did not comply with the initial CJEU judgment. The Lisbon Treaty went a step further allowing the Commission to ask for financial penalties to be applied without having to seise the CJEU again, though that is only allowed in limited circumstances (Article 260(3) TFEU). Prof Arnull argued that there is trust in the Commission to enforce EU law but it was much higher in the past, especially under the European Coal and Steel Community. The Amsterdam Treaty also introduced in Article 7 TEU the possibility to check on States failing to comply with the key values of the European Union. Now such a procedure is being used against Poland and Hungary.

Prof Arnull then provided a myriad of examples of trust and lack thereof towards both Member States and the institutions of the European Union. As he pointed out in the Q&A session the permutation of trust relations in the EU does not permit a structured analysis of how trust works in the EU. He also explained that mutual trust is the basis of EU law as well as an assumption. That being said, if there is a lack of trust it does not mean that there will be no trust anymore; rather, it means that trust must be re-established at a later stage.

The application of the European Arrest Warrant is an example of the trust or lack thereof between EU Member States as the recent preliminary reference to the CJEU on a case brought by an Irish court shows (Case C-216/18 PPU). Indeed, the Irish court questioned whether the right to fair trial would be guaranteed should Ireland extradite the individual to Poland.

With regard to individuals and how much they can trust the EU, Prof Arnull highlighted that originally, under the ECSC treaty, legal and natural persons had a relatively easy access to judicial review but the Treaty of Rome severely curtailed that right. The reason for this was that such judicial review was viewed as detrimental to the good functioning of the then European Economic Community.

To ensure though that individuals benefitted from EU law, the Court established the principles of direct effect and supremacy. If it had thought the Member States could be trusted to comply with EU law it would have probably not created these principles. The CJEU also works on the basis of trust in the sense that it assumes that the highest national courts comply with EU law as well as monitor lower courts. Unfortunately, this was recently put to the test as the Danish Supreme Court refused to follow a preliminary reference in 2016 (Ajos Case). So, if a constitutional court does not comply with EU law such monitoring disappears or, at least, becomes more difficult. Some academics claim that the Danish court’s reaction was because it views the CJEU as too activist and this does not work well with the Danish legal culture. The question however is why such an issue is raised after Denmark has been for so many years in the European Union.

The European Commission is viewed as one of the most powerful institutions and so trust in it is paramount. Unfortunately, a number of events have permitted us to doubt the trust we put in it. For example, in 1999 the Santer Commission resigned. In 2006 Edith Cresson, a Commissioner, was found guilty of misconduct (Case C-432/04). More recently in 2018 the Ombudsman has had to deal with two cases of maladministration against the Commission, the first one relating to Barroso, the former President of the EU Commission taking up a job as advisor with Goldmans Sachs and, the second one relating to the appointment of Selmayr as Secretary-General. It should however be noted that in the latter case the Ombudsman did not attack the individual, rather it was the process that led to his appointment that was put in question. This all does not look good when the Commission is, according to the treaties, the guardian of the treaties and yet seems to contain a number of individuals who cannot be trusted.

The history of the European Monetary Union (EMU) is another point in case. Italy wanted to play a strong role in the EU and thus had to show that it fulfilled the convergence requirements to be part of the EMU. The criteria were flexibly interpreted in 1998 and so Italy became part of it. Later, Italy and Greece became the victims of the 2008 financial crisis. This led to asking the question why Greece had been accepted in the Eurozone in the first place. The criteria, so it seemed, did not appear to have been rightly applied or, possibly, there was a deliberate attempt by Greece to mislead other EU Member States. In any case the issue of trust was raised in this context. The problem was that the Council is the only body that can oblige a State to correct the deficit within a certain timeframe. Yet, the Council, notably due to its composition is unwilling to do so. As a result we end up in a situation whereby commitments are made but not upheld and then the breach is not rectified because of collusion between Member States. All this reveals that the actors at stake cannot be deemed trustworthy, at least in the field of monetary policies.

Another good illustration of the issue of trust in the EU is the enlargement process. At the Copenhagen European Council it was agreed that Cyprus could become a Member of the EU and that accession by a united Cyprus was encouraged. Consequently, the process launched by Kofi Annan, then Secretary-General of the United Nations, was supported by the EU. Yet, the EU did not attach any conditionality and so, despite the rejection by the Greek Cypriots of the unification of the island in a referendum organised by the United Nations, the EU allowed Cyprus to join the EU but on the understanding that the acquis was suspended in the northern part.

In conclusion, Prof Arnull explained that first the EU treaties have express provisions showing the lack of trust in the Member States. Second, practice also reveals that at times neither the Member States nor the EU institutions can be trusted. In other words, there are many reasons for not trusting the EU and the Member States. Does that mean that there is a crisis? No, according to Prof Arnull. Rather, all institutions must show that they are trustworthy and this can be done by setting practical guidelines and examples of good governance.