Within the legal context of the European Union, the group of so-called due process – or procedural – rights are safeguarded by Title VI (‘Justice’) of the Charter of Fundamental Rights of the European Union (CFREU). These provisions capture the right to an effective remedy and to a fair trial (Article 47), the presumption of innocence and right of defence (Article 48), principles of legality and proportionality of criminal offences and penalties (Article 49), as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence (Article 50). Not only are these procedural rights important for the proper functioning of the European Union’s internal market and of the EU’s Area of Freedom, Security and Justice (AFSJ), but they also create effective safeguards for the enforcement of all other substantive rights captured by the CFREU.
The global coronavirus (COVID-19) pandemic added a level of complexity to the overall situation. The pandemic required the EU’s institutions to release several important acts, including the Commission’s official communications on state aid and public procurement, the ‘Recovery and Resilience Facility’ Regulation (EU) 2021/241, Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the European Union, and the ‘Rule of Law Conditionality’ Regulation (EU, Euratom) 2020/2092. Mirroring these developments, the Court of Justice of the European Union (Luxembourg Court, CJEU) has been forced to develop new lines of reasoning on procedural rights – now within the context of a public health emergency.
It will be argued that this new body of law – with the sector-specific legal reasoning based on aforementioned Articles 47–50 – could be pertinent for areas such as EU competition law, the functioning of the AFSJ, and – at a later date – the enforcement of the rule of law principle in the EU Member States, including Finland, thus reaching the level of national legislation and legislative interpretation. These judgements add novelty to CJEU’s existing case law due to the specificity of the legal background assessed, namely the EU’s COVID-19 legislation and pandemic-related restrictions.
The Luxembourg Court, COVID-19 and procedural rights: new developments in jurisprudence?
The interpretation of the CFREU’s provisions capturing ‘due process’ rights has obviously become a difficult task for the Luxembourg Court, due to the various challenges brought by the coronavirus pandemic. In this regard, one could mention, for instance, the (potential) shortage of essential products and services during the COVID-19 outbreak, restrictions on the freedom of movement, or the need to control the transparent expenditure of EU funds allocated to the Member States within the emergency context. These premises have defined the most important developments in the CJEU’s coronavirus-related case law in areas such as (1) EU competition law, (2) the EU’s Area of Freedom, Security and Justice, and (3) the effective enforcement of the rule of law principle within the EU Member States.
EU competition law. The Luxembourg judges have made recourse to Article 47 CFREU to underline that public procurement shall remain transparent and ‘reviewable’ even in cases of the purchase of essential pandemic products, such as antigen tests (EPIC Financial Consulting), and that the criteria for granting interim measures shall remain unchanged, despite the challenges brought by COVID-19 (Inivos). However, the applicants’ rights of defence – enshrined in Articles 48, 41(1) and (2) CFREU – have allowed the Court to confirm the well-established Technische Glaswerke presumption of the refusal of access to documents relating to procedures for reviewing state aid to the parties – with the exception of the Member State responsible for granting the aid – even within the context of the coronavirus pandemic (Ryanair).
The EU’s Area of Freedom, Security and Justice. The Luxembourg Court demonstrated a significant degree of judicial activism in Landkreis Gifhorn, in which the possibility of using regular prisons for the detention of asylum seekers was investigated. In this case, it was stated that even under COVID-19 emergency conditions, these types of decisions should remain subject to an effective judicial review (Article 47 CFREU). Moreover, in the landmark Nordic Info BV case, Luxembourg judges confirmed the legality of pandemic restrictions on free movement rising from testing requirements and quarantine obligations imposed on the basis of the ‘Citizens’ Rights’ Directive 2004/38/EC. At the same time, the Court has emphasized that such national restrictive measures shall be clear, precise, non-discriminatory and proportionate, and are subject to appeal – hence respecting the right to an effective judicial remedy enshrined in Article 47(1) CFREU (‘access to a court’).
The rule of law principle in the European Union. Importantly, the Luxembourg Court has also conducted an assessment of the so-called ‘Rule of Law Conditionality’ Regulation, which was adopted as part of the post-COVID-19 recovery package (also including the ‘European Union Recovery Instrument’ Regulation (EU) 2020/2094 and the new Multiannual Financial Framework 2021-2027). This EU legislative act proposes a basic definition of the rule of law as ‘the Union value enshrined in Article 2 TEU… [including] the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law’ (Article 2).
Moreover, the ‘Rule of Law Conditionality’ Regulation permits the Union to suspend or reduce funding to Member States in case of violations of the rule of law principle, which was the subject of critique by the Hungarian and Polish governments. While responding to their submissions, the CJEU’s judges confirmed the formal definition of the rule of law as one of the core EU values captured by Article 2 TEU, comprising a system of legal remedies ensuring that the right of individuals to effective judicial protection is observed in the fields covered by EU Law (Articles 47–50 CFREU). Therefore, the Luxembourg Court de facto allowed the EU to apply financial sanctions against EU Member States in cases, for instance, in which national governmental policies endanger the independence of the judiciary; fail to prevent, correct or sanction arbitrary or unlawful decisions by public authorities; or limit the availability and effectiveness of legal remedies in the Member State (Article 3). This could be seen as a strong message to EU Member States to retain the availability and effectiveness of national judicial remedies – even under emergency conditions, such as COVID-19 – under the threat of financial sanctions by the European Union in case of disobedience.
What are the potential implications for the Finnish legal system?
The principle of primacy of EU law over (conflicting) provisions of national law (Declaration No. 17 concerning primacy) and the obligation of the EU Member States to comply with the requirements set out in CFREU while implementing Union law (Article 51(1)) create an important background for regulating EU-wide emergencies or crises in the years to come, both on Union and national levels. Finland – as an EU Member State – is no exception to this rule: in light of the evolving CJEU case law, Finnish authorities are required to comply with a cluster of guarantees in the area of procedural rights during possible future pandemics. It can be argued that the implications for Finnish plaintiffs, courts, and the Finnish authorities in general could be seen from the perspective of several procedures enshrined in EU legislation, namely the (1) actions for annulment (Articles 263–264 TFEU), (2) preliminary ruling procedures (Article 267 TFEU) and (3) ‘Rule of Law Conditionality’ Regulation sanctioning mechanism (Article 6 Regulation 2020/2092).
Firstly, the Luxembourg Court’s post-COVID jurisprudence can discourage national litigants from initiating actions for annulment – the legal procedures through which parties can request the CJEU to rule on the legality of EU acts, which can possibly lead to their disapplication – in several areas of EU competition law. For instance, national enterprises are already warned through the CJEU judgements that Commission decisions denying the parties’ access to the files in the state aid proceedings (Ryanair) or the framework contracts for the purchase of essential pandemic products concluded without prior publication of a contract notice (Inivos) are unlikely to be annulled, even under emergency conditions.
Secondly, these newly formed Luxembourg lines of reasoning can also affect judicial behaviour, especially in regard to requests for the CJEU’s preliminary rulings on some questions pertaining to the interpretation of EU law. For instance, national judges are less likely to submit such references on the scope of review in procedures covered by EU public procurement rules (EPIC Financial Consulting), the return proceedings of asylum seekers (Landkreis Gifhorn), or travel restrictions due to testing requirements and quarantine obligations (Nordic Info BV) within the context of a pandemic – because these matters have already been clarified by the CJEU during the COVID-19 health crisis.
Thirdly, the Luxembourg Court sent a very strong message to the EU Member States through the release of post-COVID judgements confirming the validity of the ‘Rule of Law Conditionality’ Regulation. The Nordic States – including Finland – are famous for effective enforcement of the rule of law principle and respect for fundamental rights. However, the Finnish authorities – among other national actors within the EU – are still warned that violations in this area could ultimately amount to a breach of the EU core values, and hence end in financial sanctions permitted under Regulation 2020/2092. These might include the suspension of payment of funds from the EU budget, in which a government entity is the recipient of these EU funds, either directly or indirectly.
Therefore, these developments in the CJEU’s jurisprudence could be seen as additional safeguards for judicial independence and the principle of legality, as well the right to a fair trial and an effective remedy within the Finnish legal system – both during possible states of emergency and under ordinary circumstances. In this regard, one could mention the recently passed Act on Temporary Measures to Combat Instrumentalised Migration (Act 482/2024), adopted as an exceptive act in the constitutional order of enactment. This act attempts to deal with another ongoing crisis – namely the pressing need to strengthen the security of the Finnish-Russian border due to instrumentalized cross-border movement of apparent asylum seekers at Finnish border crossings – facilitated by the Russian border authorities since autumn of 2023. Given this background, Act 482/2024 allows the government to restrict applications for international protection in a limited area on Finland’s national border and in its immediate vicinity (apart from certain exceptions) and is aimed at preventing irregular cross-border movement.
The adoption of this law has been deemed to infringe on a host of rights contained in the Constitution of Finland, such as the prohibition of deportation, extradition and return of foreigners (Section 9(4)) and protection under the law (Section 21). At this point, it remains to be seen what the EU-level legal response to Act 482/2024 could be – for instance, from the perspective of the principles of EU Asylum acquis (‘right to asylum’, Article 18 CFREU and ‘protection in the event of removal, expulsion, or extradition’, Article 19 CFREU) – and what could be the possible impact of the above-mentioned post-COVID Luxembourg lines of reasoning in the case of judicial proceedings before the Finnish courts concerning this type of national crisis legislation.
