This contribution is part of our joint online symposium with the JuWissBlog on the topic: “Protecting the Rule of Law in the European Union – Mechanisms and National Responsibility.”
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A contribution from Moon Hwan Lee*
The European Union’s legal architecture depends on access to facts.[1] Yet when Member States withhold information, traditional enforcement tools collapse. This paper proposes a doctrinal solution: integrate adverse inference[2] to restore accountability.
Legal tools such as Article 7 TEU and the Conditionality Regulation operate on the assumption that Member States will submit the information necessary for institutional review. That assumption fails under current conditions. Hungary blocks access to judicial appointment records. Poland conceals disciplinary case files during active litigation. These actions follow a deliberate method. They obstruct legal oversight while preserving procedural appearances.
Accountability collapses without facts. The Commission cannot proceed. The Court cannot decide. Legal instruments remain in place, but their function disappears.
Adverse inference offers a lawful response. When a state controls key facts and rejects disclosure, institutions may treat that silence as evidence of noncompliance. This doctrine functions across legal systems. Within the EU, it offers a structured means to overcome factual obstruction.
Germany upholds rule of law principles at the constitutional level.[3] Yet it has resisted EU-level procedural mechanisms, such as burden-shifting presumptions or deference to supranational interpretation, that could restore those principles at the Union level. The PSPP judgment, for instance, rejected the CJEU’s legal reasoning as ultra vires and declined to recognize its binding authority.[4] This stance sustains legal formalism while allowing enforcement to fail.
Silence has become a tool of evasion. Member States invoke procedure while withholding substance. In a legal order built on reasoned judgment, deliberate silence is not neutral. The refusal to disclose must carry legal meaning. Otherwise, the system operates without truth.
Opacity as Legal Tactic: The Collapse of Fact-Based Enforcement
Some Member States have learned to sidestep EU oversight without rewriting law. The strategy relies on withholding facts that institutions need to assess compliance. This factual silence does not violate procedure directly, but it prevents procedure from functioning.
Hungary’s judiciary offers a clear example. In 2024, the Rule of Law Report noted that the President of the Kúria is not bound by the ranking established by the full court when recommending the appointment of Vice Presidents, despite the National Judicial Council’s binding authority to assess candidate suitability.[5] Parliament’s recent selection of Council members also lacked public oversight and did not follow a competitive procedure.[6] Meanwhile, court presidents appointed by the President of the National Office for the Judiciary continue to exercise disproportionate influence over judicial administration.[7] According to the same report, internal evaluations and justifications for deviations from ranked lists remain inaccessible to external reviewers.[8] This systematic lack of transparency disables institutional checks designed to guard against executive overreach.
Poland follows a similar trajectory. While the Disciplinary Chamber of the Supreme Court was formally dissolved, and replaced by an independent and impartial chamber positively assessed by the Commission, not all consequences of the prior regime have been reversed.[9] Proceedings against judges related to past judicial reforms have persisted, although many have been closed and some judges reinstated.[10] The Commission continues to monitor implementation of CJEU rulings but does not indicate that factual obstruction currently hinders new infringement actions under Article 258 TFEU.[11]
In Commission v. Poland (C-791/19), the Court found that Poland refused to submit internal judicial records and failed to justify that refusal.[12] Without those documents, the Court stated, it could not assess whether the disciplinary system met basic requirements of independence.[13] The judgment recognized this refusal as a violation of Article 4(3) TEU.[14]
Strategic opacity functions as a legal barrier. It disables the Union’s procedural tools while preserving formal legality. Enforcement depends on facts. When those facts are withheld, the system remains procedurally open but substantively inert. Article 19(1) TEU requires that “Member States shall provide remedies sufficient to ensure effective legal protection.” That obligation cannot function when judicial or administrative bodies lack access to facts. A legal system cannot guarantee protection when its tools are denied material. Where silence disables enforcement, the only legal protection that remains is the ability to interpret silence itself.
Adverse Inference as Legal Response to Strategic Silence
When one party controls the facts and refuses disclosure, law cannot rely on procedural symmetry. In such conditions, courts and regulatory bodies across legal systems adopt a solution grounded in logic and fairness: adverse inference. This doctrine allows adjudicators to presume misconduct when relevant information is withheld, thereby shifting the evidentiary burden to the party obstructing access.
The European Court of Human Rights has formalized this principle in El-Masri v. Macedonia.[15] After finding that the state withheld evidence central to the applicant’s claim of unlawful rendition, the Court concluded that the facts, as alleged, stood unrebutted.[16] It held that “prima facie evidence” justified shifting the burden of proof to the government, which failed to provide a credible explanation.[17] The Court drew inferences from the authorities’ conduct and accepted the applicant’s version as established beyond reasonable doubt.[18] The same judgment recognized that invocations of state secrecy serve not to protect security but to obstruct truth.[19]
German civil procedure adopts a parallel rule. Section 138(3) of the Zivilprozessordnung provides that factual allegations not expressly contested may be treated as admitted. This mechanism responds to asymmetries of knowledge and reflects the foundational obligation of parties to address claims truthfully and completely.
European Union law has already absorbed related concepts. Article 47 of the Charter guarantees effective judicial protection, while Article 41 requires fair administration. The Court of Justice has relied on rebuttable presumptions in competition and anti-discrimination cases when one party holds exclusive access to evidence. The logic behind adverse inference already operates within the fabric of EU law. It simply remains underdeveloped in the domain where it is most urgently needed.
Making Adverse Inference Legally Operative in the EU
Legal doctrine must respond when access to facts becomes the core barrier to enforcement. Adverse inference offers a principled solution. Within the EU legal order, its application can be structured through a narrowly tailored test:
First, a Member State must have exclusive control over facts relevant to a pending legal inquiry. Second, an EU institution such as the Commission, the Court, or another treaty-based body must issue a legitimate request for those facts. Third, the Member State must refuse to disclose them or delay disclosure without providing a reasoned legal basis. When these three conditions are met, a rebuttable presumption of breach should apply.
This presumption is compatible with multiple enforcement instruments. Under Article 7 TEU, factual silence can support the conclusion that systemic risk to EU values exists, particularly when non-cooperation prevents meaningful review. The Rule of Law Conditionality Regulation already anticipates information asymmetry. Recital 16 recognizes that breaches may be linked to failures in cooperation or access to data.[20] Adverse inference gives that recognition legal effect.
Infringement proceedings under Article 258 TFEU offer a further route. The refusal to comply with fact-finding requests falls within the scope of Article 4(3) TEU, which imposes a duty of sincere cooperation.[21] The Court of Justice has previously treated failure to produce documents as an autonomous breach.[22] That logic applies with greater force when entire investigative channels are obstructed.
Germany’s Jurisprudential Hinge and the Meaning of Silence
Germany occupies a structural hinge. At home, it treats the rule of law as a constitutional foundation grounded in dignity and legality. In Brussels, it hesitates. Invoking legal certainty, it resists evidentiary inferences even when other Member States withhold facts through deliberate obstruction.[23] This posture preserves legal form while allowing legal function to collapse.
The Federal Constitutional Court has long affirmed a duty to protect legality where law is used as a barrier to scrutiny. That duty extends across the Union. Constitutional identity entails external responsibility when the shared legal order faces erosion from within.[24]
When factual suppression disables oversight, silence becomes a legal act. Treating it as neutral shields impunity behind formal process. Adverse inference offers a doctrinal method to interpret concealment without breaching fairness. In a legal system that relies on verifiable accountability, refusal to disclose material facts requires interpretation.
The current information landscape intensifies the risk. AI-generated distortion, algorithmic opacity, and politically controlled datasets create deliberate asymmetries. Silence becomes strategic. When access to truth is controlled, absence reshapes legal meaning. Legal reasoning must respond. Silence reveals intent. Concealment alters meaning. And in a system built on accountability, what remains hidden carries legal consequence.
*Moon Hwan Lee is a graduate of Northwestern Pritzker School of Law in Chicago. His work on sanctions and legal accountability has been published in the Yale Journal of International Affairs.
[1] See Charter of Fundamental Rights of the European Union, arts. 41, 47; see also ECJ, Judgment of 15 July 2021, Commission v. Poland, Case C-791/19, paras. 142–144.
[2] Adverse inference refers to the legal presumption that withheld evidence would be unfavorable to the party suppressing it. See ECtHR, Judgment of 13 December 2012, El-Masri v. Macedonia, App. No. 39630/09, paras. 165–167 (shifting the burden to the government after it failed to rebut prima facie evidence and withheld material documents).
[3] See Grundgesetz [Basic Law], art. 20(3).
[4] See BVerfG, Judgment of 5 May 2020, PSPP, 2 BvR 859/15, paras. 112–119 (holding that the CJEU judgment was “objectively arbitrary” and exceeded its mandate under Art. 19(1) TEU, thus constituting an ultra vires act with no binding force in Germany).
[5] European Commission, 2024 Rule of Law Report – Country Chapter: Hungary, p. 9.
[9] European Commission, 2024 Rule of Law Report – Country Chapter: Poland, p. 5.
[12] ECJ, Judgment of 15 July 2021, Commission v. Poland, Case C-791/19, para. 143.
[15] ECtHR, Judgment of 13 December 2012, El-Masri v. Macedonia, App. No. 39630/09, para. 165.
[20] Regulation (EU, Euratom) 2020/2092, Recital 16: “[T]he breaches of the principles of the rule of law […] may concern the proper functioning of public authorities and the effective judicial review by independent courts, which may be undermined by the lack of access to necessary information.”
[21] Treaty on European Union (TEU), art. 4(3): “Pursuant to the principle of sincere cooperation, the Union and the Member States shall […] assist each other in carrying out tasks which flow from the Treaties.”
[22] Opinion of Advocate General Mischo, delivered on 6 December 1990, Commission v. Belgium, Case C-374/89, paras. 7–8 (holding that repeated failure to provide requested information may constitute an autonomous breach of the duty of sincere cooperation under Article 5 EEC, now Article 4(3) TEU).
[23] See ECJ, Judgment of 15 July 2021, Commission v. Poland, Case C-791/19, paras. 142–144 (finding that Poland refused to submit judicial records essential for review, violating its duty of sincere cooperation under Article 4(3) TEU); see also BVerfG, Judgment of 5 May 2020, PSPP, 2 BvR 859/15, paras. 112–119 (asserting that legal certainty prohibits deference to supranational legal interpretation when perceived as methodologically arbitrary).
[24] Giegerich, Thomas, Der Mensch als „Maß aller Dinge“ im Völkerrecht, Europarecht und Grundgesetz, jean-monnet-saar 2025.
Suggested Citation: Moon Hwan Lee, Factual Silence as Rule of Law Evasion: Adverse Inference and the Evidentiary Collapse of EU Accountability, jean-monnet-saar 2024.
DOI: 10.17176/20250730-094338-0
Funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – Project No.: 525576645
