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Schengen Entry Bans for Political Reasons? The Case of Lyudmyla Kozlovska

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On 13 August 2018, Lyudmyla Kozlovska, an Ukrainian national and the President of the Open Dialog Foundation (ODF) in Poland, was detained following a passport control at the Belgian airport in Brussels on the basis of a Polish entry ban reported into the Schengen Information System (SIS II). One day later, the Belgian border authorities deported her to Kiev, Ukraine. According to information provided on the website of the Open Dialog Foundation, the entry ban on Kozlovska was included in the SIS II by the Polish authorities on 31 July 2018. In accordance with Article 6 of the Schengen Borders Code, all other Schengen States must on that basis consider her as an ‘inadmissible alien’ and refuse entrance to the Schengen territory. This case raises questions on the discretionary power of states to use the SIS II for entry bans on ‘unwanted migrants’ and the obligation of executing states, in this case Belgium, to check the legitimacy or proportionality of these other states decisions. Furthermore, this case illustrates the necessity of effective remedies against decisions reported in large-scale databases such as SIS.

Limitations to the issuing of an entry ban in SIS

According to Article 24 of the SIS II Regulation, a third-country national may be reported in the SIS on two grounds: either his/her expulsion, refusal of entry or removal as a measure of immigration law resulting into an entry ban on the basis of the (Return Directive 2008/115), or public order or security grounds. During her application for a EU long term residence status, Kozlovska, for ten years a legal resident in Poland, was informed that she was not reported into the SIS. Without requesting access to the file of her application for a long-term status, a decision was made that access to a part of the case file must be refused on the grounds that it contains secret information, the disclosure of which 'would cause serious damage to the Republic of Poland'. This information indicates that she was not reported on the basis of immigration grounds: in accordance with the Return Directive, if the Polish authorities would have withdrawn her residence status, she should have been issued first a return decision and return decisions are not automatically reported in the SIS II. Only if no ‘period of voluntary return’ has been granted a return decision will be followed by an entry ban to be reported in the SIS.

A SIS alert on public order or security grounds can be based on either a conviction of an offence by a Member State, punishable by a term of imprisonment of at least one year, or when there are serious grounds for believing that he or she ‘has committed serious criminal offences or concerning whom there are clear indications of an intention to commit such offences on the territory of a Member State’.

These grounds, already included in the Schengen Convention of 1990, have been criticised for providing a wide and disproportional basis for refusal of entry and expulsion. On the basis of the first ground, a conviction for a minor crime in one of the Schengen States may already result into a long-term banishment from the whole Schengen territory. Furthermore, the second ground offers Schengen states a wide margin of appreciation of not only who is to be considered as a risk of committing a serious crime, but also what is to be considered a serious crime.

The power of states to issue a SIS alert is however restricted by two conditions, added in the SIS II Regulation of 2006. First, every SIS entry ban must be based on an individual assessment and second, before issuing an alert, Member States must determine whether the case is ‘adequate, relevant, and important enough’ (Articles 21 and 24).  Any decision to report a person as ‘inadmissible’ into the SIS is therefore bound by the purpose of the SIS (to ‘ensure a high level of security within the area of freedom, security and justice of the European Union, including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States’) and the principle of proportionality.

In Zh. and O,  addressing the question when on the basis of public order grounds, a Member State may decide to provide no voluntary period of return on the basis of the Return Directive, the CJEU held that while ‘Member States essentially retain the freedom to determine the requirements of public policy in accordance with their national needs, which can vary from one Member State to another and from one era to another’, these requirements must be interpreted strictly ‘to ensure that the fundamental rights of third-country nationals are respected when they are removed from the European Union’. The CJEU applied the same criteria as with regard to EU citizens on the basis of the Citizenship Directive, stating that the ‘risk to public policy’ must be based on a case-by-case basis in order to ascertain whether the personal conduct of the third-country national concerned poses ‘a genuine and present risk to public policy’. Furthermore,  the principle of proportionality and the fundamental rights of the person at stake must be taken into account (para. 50, 69).

Considering the protection of fundamental rights, in the case of Mrs Kozlovska who has a family in Poland and is married to a Polish citizen, the entry ban affected both her right to family life (8 ECHR, 7 EU Charter) and her right to freedom of expression (10 ECHR, 9 EU Charter). In Piermont, dealing with Article 10 ECHR and a French measure of expulsion from French Polynesia and a prohibition on re-entry to New Caledonia against a German member of the European Parliament, the ECtHR found that Article 10 ECHR was violated because the French authorities did not strike a fair balance ‘between, on the one hand, the public interest requiring the prevention of disorder and the upholding of territorial integrity and, on the other, [the applicant’s] freedom of expression”.'

It seems unlikely that Poland could invoke Article 16 ECHR according to which Articles 10, 11 (freedom of religion) and 14 (non-discrimination) does not prevent States ‘to limit the political activities of aliens’. The ECtHR has never found any justification for the use of this exception, nor for any differentiated treatment between nationals and non-nationals with regard to the protection of the freedom of expression. In Perinçek, para 121-123, the ECtHR underlined that the clause in Article 16 should be interpreted restrictively and 'construed as only capable of authorising restrictions on 'activities that directly affect the political process'.  According to the ECtHR, since the right to freedom of expression was guaranteed by 10 ECHR 'regardless of frontiers', no distinction could be drawn between its exercise by nationals and foreigners.

Role of the executing state

Aside from questions on the legitimacy of the Polish entry ban, the lawfulness of the Belgian decision to enforce the SIS alert by expelling Mrs Kozlovska to Kiev can be questioned as well. Although SIS II is implicitly based on the principle of mutual trust and requires Schengen States to enforce each other’s SIS alerts, a state may have a duty to check their lawfulness or proportionality, if its enforcement would violate fundamental rights of the person at stake.

This has been affirmed by the CJEU on the use of the Dublin system for the transfer of asylum seekers in NS v SSDH, with regard to the execution of the European Arrest Warrant (EAW) in Aranyosi and Căldăraru and more recently in the important Celmer case dealing with the independency of national courts in Poland. In Aranyosi and Căldăraru, the case concerned the treatment of imprisoned persons in the executing state and the question whether extradition would not violate their absolute right of protection against inhuman or degrading treatment (3 ECHR and 4 of the EU Charter).

The Celmer judgment dealt with the doubts of the Irish court on whether Polish nationals to be surrendered on the basis of a EAW would receive a fair trial in accordance with Article 47 of the Charter, considering the recent changes in the Polish judicial system. The CJEU held that a judicial authority called to execute a EAW must refrain to give effect to it, if first, it would find ‘a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary, and second, if considering the specific circumstances of the case it would find substantial grounds to believe the requested person would run that risk (para. 68). Only when on the basis of Article 7(2) TEU, the European Council  would have determined a breach of the principles of Article 2 TEU in  a Member State, national courts should, according to the CJEU, refuse the execution of EAW of that state automatically (70-74). Although, see the comments of Van Ballegooij/Bárd, this seems to be a high threshold for national courts to rebut trust, it is important that the CJEU underlines the duty to investigate and assess independency and impartiality of courts before extradition. Where the aforementioned cases dealt with the expulsion or extradition from one Member State to another Member State, in Commission v Spain, the CJEU specifically dealt with SIS-alerts for the refusal of entrance on third-country national spouses of EU citizens. In this judgment, the CJEU found that the refusal of a visa or entry to a third-country national, which is solely based on a SIS alert without checking whether he or she presents a genuine, present and sufficiently serious threat, is in violation of  the rights of  family members of EU citizens on the basis of EU law.

Therefore, it seems arguable to claim that before expelling Mrs Kozlovska to Kiev, the Belgian authorities should have checked first whether this expulsion would not violate her rights to freedom of expression, family life, or effective judicial protection, but certainly her right to residence as a family member of a EU citizen.

Access to legal remedies

Third-country nationals reported into SIS II on the basis of public order and security reasons will generally only be informed about the existence of this report when confronted with a refusal of visa or entry, (extension of) a residence permit, or as in this case, deportation. This makes it difficult to challenge SIS alerts in time. However, on the basis of Article 43 SIS II Regulation, a person may bring an action before the courts or the authority competent under the law of ‘any Member State’ to access, correct, delete or obtain information or to obtain compensation in connection with an alert relating to him or her. Furthermore, it provides that Member States must undertake mutually to enforce final decisions handed down by these courts or authorities. This means that persons reported in SIS II can start legal proceedings in any of the Schengen states and if subsequently a national court or authority in that state decides the entry ban is unlawful, the reporting state must delete the entry ban from SIS II. This provision therefore offers an important basis for starting legal remedies against SIS entry bans, specifically when in the reporting states no effective remedies against SIS alerts are available, as seems the case in Poland according to information of the Helsinki Foundation.

Final remarks

SIS II is currently used by 22 EU Member States plus the four Schengen Associate countries, Iceland, Norway, Switzerland,  and Liechtenstein. Bulgaria, Romania, Croatia, and the UK operate SIS only for the purpose of law enforcement cooperation, while Cyprus and Ireland are not connected to the SIS yet. According to the statistics provided by the responsible EU Agency euLISA, SIS II held in 2017 501.996 alerts on third-country nationals for the purpose of refusal of stay/entry, which is 56% of all the data on individuals in SIS II (which also may include persons issued with a EAW, missing persons, persons to assist in a judicial procedure, and persons entered ‘for discreet and specific checks’). Although, as mentioned above, the CJEU and the ECtHR provided relevant criteria protecting individual’s rights, further clarification on the powers and obligations of the Schengen states when using SIS remains necessary. Not only because of the increasing and interlinked use of EU large-scale databases for migration and security purposes, but also considering recent national developments, affecting EU principles of the rule of law and democracy.

A previous version of this article contained a factual error regarding the application of Ms. Kozlovska for access to her file. The error has been corrected.


How to Stop Funding Autocracy in the EU

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In last week’s Verfassungsblog editorial, Max Steinbeis expressed some skepticism that the EU could enforce a judgment that a Member State simply refused to honor.   True, the EU is not a Weberian, coercion-wielding state and cannot compel compliance with force of arms.   But the EU may have a very effective weapon at its disposal, one that befits its status as a voluntary Union: refusing to pay for budding autocracies that violate the rule of law.   

At the moment, the EU finds itself in the perverse situation of providing some of the largest transfers of funds precisely to those governments who most prominently thumb their nose at its democratic and rule-of-law norms.   Within the EU, both Hungary and Poland are huge beneficiaries of EU fiscal transfers. Poland is the largest overall recipient, taking in 86 billion euros from various European Structural and Investment Funds (ESIFs) in the current funding period (2014-2020).  Hungary meanwhile is the largest recipient of EU funds on a per capita basis, and more than 95 per cent of all public investments in Hungary in recent years have been co-financed by the EU. A significant chunk of this EU largesse in Hungary has found its way into the pockets of a set of new oligarchs created by the current governing party, helping sustain Orbán’s sprawling, corrupt patronage network. The Economist captured the essence of the irony an April 2018 article titled, “The EU is tolerating – and enabling – an authoritarian kleptocracy in Hungary,” observing, “Viktor Orbán campaigns against the EU from Monday to Friday, and collects its subsidies at weekends.” Ultimately, many of the other sanctions discussed for democratic backsliders – such as the suspension of voting rights under Article 7 – may matter very little to leaders of these regimes so long as the money keeps flowing.

Many observers recognize the irony of this situation in which the EU subsidizes autocracies, but have concluded that there is little the EU can do because, in their view, the EU lacks the legal grounds to suspend the flow of European Structural and Investment Funds (ESIFs) in response to democratic backsliding. More recently, with an eye to the EU’s next multi-annual budget that will run from 2021-2027, however, politicians and academics have advanced a series of proposals (such as ones from the European Parliament, the German government, and European Commissioner for Justice Vera Jourová) to strengthen the rule-of-law conditionality attached to EU funding.  A heated debate has ensued, with governments who see themselves as the potential targets of such conditionality – not only Poland and Hungary, but other states with problematic judicial systems such as Romania and Bulgaria – adamantly denouncing these proposals.  Likewise, debate has raged within the Commission, with some EU leaders such as Justice Commissioner Jourová defending conditionality, while others such as Commission President Jean-Claude Juncker adamantly opposing it.  But these proposals and the entire debate surrounding them misses the fact that the EU already has a sufficient legal basis to suspend the flow of funds to states in which rule-of-law norms are systematically violated. The real problem to date has not been the lack of adequate legal tools, but the lack of political will on the part of the European Commission to use the tools that already exist.

The Common Provisions Regulation, or CPR, currently regulates the administration of ESIFs.  As Israel Butler of the Civil Liberties Union for Europe argued in a recent report, “the CPR, read in light of the Charter of Fundamental Rights and the case law of the Court of Justice, already allows the Commission to suspend ESIFs where a Member State does not uphold the rule of law.” Article 142(a) of the CPR provides that payments of ESIFs may be suspended if, “there is a serious deficiency in the effective functioning of the management and control system of the operational programme, which has put at risk the Union contribution to the operational programme and for which corrective measures have not been taken.”   Surely, a country without the rule of law cannot generate effective management and control systems.  The Commission itself has already noted that a requisite management and control system must “ensure that effective arrangements for the examination of complaints concerning the ESI Funds are in place” (Article 74(3), CPR), and must ensure that natural and legal persons have the right to an effective remedy from an independent and impartial tribunal as required under Article 47 of the Charter of Fundamental Rights. The European Court of Justice, too, has already affirmed these principles (for example in Case C-562/12, Liivimaa Lihaveis MTÜ, 17 September 2014, paras. 67- 75), and emphasized that the framework for remedies must meet the requirements of Article 19(1) TEU for effective legal protection in fields covered by Union law (for example in Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas, 27 February 2018, paras. 31-45)   This seems to us to be plenty of authority to use to suspend the flow of funds to states that cannot guarantee the rule of law.   But so far, the CPR has not been used to discipline rogue Member States.   That said, the Commission has initiated new two measures that, if adopted, could give the Commission additional powers to suspend or claw back structural funds flowing to Member States.   

First, the Commission has supported the creation of a European Public Prosecutor’s Office with jurisdiction over corruption in the use of EU funds.   At the moment, OLAF, the EU’s anti-fraud office, has the power to investigate corruption in the use of EU funds, but upon conclusion of its investigations, it hands over the results to the Member States for further action, prosecution if necessary.  Not surprisingly, these files often go nowhere.   The Member States most likely to abuse EU funds often have governments implicated in these corruption schemes at the highest levels and, not surprisingly, these governments are not likely to prosecute themselves when OLAF hands them the evidence to do so.  Some tougher mechanism, not dependent on the Member States themselves, was called for.   

The creation of a European Public Prosecutor to scrutinize and prosecute corrupt uses of EU funds was authorized in June  2017,  when 20 Member States in the Council agreed to set up this new institution under the enhanced cooperation mechanism, which permits a substantial subset of Member States to agree to increased integration without waiting for all Member States to join.  The regulation establishing this new office was passed in October 2017.  Not surprisingly, neither Hungary nor Poland decided to sign up, nor did other Member States that are considered among the most thoroughly corrupt.    Since the initial set of states agreed to move forward with the European Public Prosecutor, only the Netherlands has joined.    

But a proposal is now circulating to tie EU funding to the agreement by Member States to accept the jurisdiction of the European Public Prosecutor.  If a Member State will not allow its uses of funds to be scrutinized, then – the theory goes – the Member State should not be entrusted with such funds.   Justice Commissioner Vera Jourová first made the proposal  and the call has since been picked up by critics of the Orbán government as a way for the EU to avoid subsidizing Member States that do not play by the rules.   This could emerge as a new way to withhold ESIFs to rogue states. 

Second, the Commission has proposed a new regulation to accompany the Multi-annual Financial Framework for the next five-year period that, if adopted, would make the distribution of ESIFs conditional on a Member State’s compliance with the rule of law.    But already a fight has emerged over the legal basis of this regulation.  While the regulation itself announces that it is based on Article 322 TFEU which uses the ordinary legislative procedure for implementing legislation that carries out the budget and therefore allows the rogue states to be outvoted, some critics have argued that the new proposal belongs instead under Article 312 TFEU, on the multi-annual financial framework itself, which requires unanimity in the Council.   Given this resistance, the difficulty of the legal questions involved and the short time European institutions have to enact conditionality rules before the budget must go into effect, the regulation may well not pass.   

But even though these new proposals would certainly be desirable and explicit recognition of conditionality would be a step in the right direction, the new proposals are – strictly speaking – unnecessary.   We believe that a legal ground for cutting ESIFs to rogue Member States already exists in the CPR but note with disappointment that the Commission has not yet had the will to use the power already in its hands.

Why has the Commission so far (eight years into the Orbán regime and three years into the PiS government) refused to suspend the flow of funds to its nascent autocracies? Again, as with its failure to impose Article 7 sanctions, all indications point to a lack of political will as the principal explanation. Resistance starts at the top.  Commission President Jean-Claude Juncker, when asked during a conference in Berlin if he supported Germany’s proposals to attach rule of law and democracy conditions to EU funds, said: “I am of the opinion that one should not do that.” He added that the proposal would be “poison for the continent.”  In arguing this, he joins other critics who say that suspending funds to the poorer Member States will simply drive them into the arms of other powers with no interest in democracy or the rule of law, like China.   Whether Juncker’s refusal to support funding conditionality stems from his partisan loyalty to EPP ally Viktor Orbán – a sure target of any such sanctions – or from a sincere belief that sanctions would prompt destructive fissures within the EU, the fact remains that the Commission lacks the unified political will to deploy the tools it has.

Perhaps the proposals to make the flow of European funds conditional on either signing onto the European Public Prosecutor or complying with the rule of law are trial balloons.  If there is strong support for one or both, then the Commission would know that it has backing to use the CPR to stop the flow of funds to offending Member States.   But if other Member States cast doubt on the wisdom or the legality of these proposals to make funds conditional on a Member State remaining democratic, human-rights-protecting and committed to the rule-of-law, then the Commission may see no reason to summon the political will to act under its existing authority. 

In just the last few days, however, the tide seems to be turning.   Some new voices have spoken up for limiting the budget to countries that support EU priorities and values.   French Foreign Minister Jean-Yves Le Drian has said that France no longer wants to fund governments that do not act in solidarity with the rest of Europe.  EU Budget Commissioner Günther Oettinger struck out at Italy after it threatened to withhold its payments to the EU because it got little assistance on migration.   In the middle of tensions building over the link between compliance with European values and the EU budget, President Juncker admitted for the first time that Hungary’s membership in the European People’s Party is a problem.   Now that the rule-of-law disease seems to be spreading to more and more Member States, perhaps the Commission will see that funding rogue Member States is dangerous to the future of the EU and it will summon the will to act.   It doesn’t need to wait for new authorization; it already has the tools it needs to act now. 

Beyond the Spectacle: The European Parliament’s Article 7 TEU Decision on Hungary

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Emotions were high and voices loud while and after the European Parliament adopted its decision to trigger an art. 7 TEU procedure against Hungary this week. Once the dust settles, it might be helpful and disillusioning to look at the possible consequences, the collateral damages and the side-effects of the European Parliament’s art. 7 TEU decision.

The next step is a Council meeting where Members discuss the PE decision and Hungary can again defend itself. The Council can then vote on art. 7(1) TEU, where it needs a 4/5 majority. It is, however, more likely, that it will refer the matter back to the Commission and request it to monitor the situation further, engaging in a "dialogue" with the Hungarian government. This is what happened with regard to Poland’s art. 7 TEU procedure. After an initial period, during which the government of Beata Szydło panicked and Mrs. Szydło was ready to make concessions to the European Commission she had refused to make to the Polish opposition, the Polish government quickly realized the advantage, which it could derive from the slow pace of the EU decision making process: What you once nail for good, no Commission and no Parliament can un-nail. In the meantime, the Polish government has managed to dismantle the judiciary so much that not even the government could undo it. What kind of concessions could Orbán, the Polish prime minister or Jarosław Kaczyński, the man who pulls the strings behind the scenes in Poland, make in order to satisfy the EU? Fire judges, which they appointed unconstitutionally and break the constitution again? Loosen the government’s grip on the appointment of judges and prosecutors? That would deprive any future government from getting rid of these appointees and cement PiS' and Fidesz’s power over the judiciary.

Therefore, it is of utmost importance to ask, what we expect the art. 7 TEU procedure to achieve other than just to mete out punishment for a government we don’t like. Yes, Orbán can be punished, if the procedure is followed until the bitter end, when Hungary will be stripped of EU transfers and looses its vote in the Council. But this will not undo the laws on civic organisations and human rights. It will neither empower refugee applicants nor bring back students to CEU and it will not make the judiciary more independent from the government. Judges, who were sent into retirement, will not come back, not even if the government wants them to. Judges and prosecutors, who own their promotions and their privileges to Fidesz or PiS and enjoy duty terms exceeding the current legislative term, can only be removed by breaking the constitution or after adopting a new one. Even if the opposition wins the next election in Hungary or Poland, it is likely that PiS and Fidesz will be needed to form a coalition government and thus will be able to protect their grip on the institutions. And even if the next election ends with a disaster for PiS and Fidesz, can we expect a new government to roll back all the powers PiS and Fidesz have amassed during their reign? Can we expect a new government to dismantle the autocratic, illiberal police state Fidesz and PiS created? Getting rid of PiS' and Fidesz’s grip on the institutions, of their puppets and beneficiaries will be much easier under an illiberal, autocratic system than under conditions of the rule of law. In other words: even if art. 7 TEU manages to topple the PiS and Fidesz-government, it will not necessarily reinstate the rule of law in both countries.

The Way Ahead

If PiS and Fidesz cannot make concessions, they will not. If they don’t, the next step will be a vote in the European Council on art. 7(2) TEU (the famous "sanctions") which require unanimity. Both governments already swore several times to shelter each other with their veto. Theoretically, it is possible to vote on both cases (PL and HUN) together. Thus, both countries would be excluded from the vote and prevented from cross-vetoing. The advantage would be that once deprived of their voting rights, they cannot complicate the negotiations about the next financial perspective and the budget (where on some stages unanimity is required).

The Council could then introduce a mechanism (already prepared by the European Commission) which puts transfers on hold to countries which do not guarantee the rule of law. However, art. 7 TEU speaks about one procedure for each country breaking the rule of law, it does not mention joint procedures against several countries and it is quite likely the ECJ would quash such a joint vote. Certainly, the EU could catch Hungary and Poland in their own trap and nail things as an ECJ decision would certainly be issued after the budget’s adoption. Obviously, there are a lot of imponderabilia in the process.

Beyond the Spectacle

There are other mechanisms already put in train which are much more promising than an art. 7 TEU procedure:

1. The European Commission already has dramatically increased the infringement procedures against both governments, either on the Commission level (the so-called "pilots" and through reasoned opinions) or by bringing complaints before the Court of Justice. Art. 7 TEU procedures are cumbersome and they become directly costly only at their very end. Lost ECJ lawsuits however, especially those initiated by the European Commission, can very quickly become expensive. Art. 7 TEU is uncharted territory, whereas the ECJ forced the Hungarian and the Polish government (see here and here) several times into compliance with EU law.

2. In 2018, an Irish judge submitted a request for a preliminary ruling to the ECJ in an extradition case against a Polish citizen who was held in Ireland and sought by Poland under the European Arrest Warrant. The judge asked whether the person should be sent to a country, where the rule of law has been undermined so vigorously, that this person can hardly expect to get a fair trial. In response, the ECJ imposed a two-tier test to all national courts in the EU. They now have to establish, whether in Poland the rule of law is intact and if not, whether this is likely to impede the rights of the person affected by an extradition request from Poland. The criteria defined by the ECJ seemed to have derived from a description of the Polish judicial reforms and don’t leave Member States' courts much leeway in assessing the state of the rule of law in Poland. The basis for the Irish request as well as for the ECJ response was the European Commission’s report to the Council of the EU triggering art. 7 TEU. There can hardly be any doubt, that the Sargentini report will serve as a similar basis in any ECJ preliminary ruling concerning Hungary. Some national courts may even use it on their own initiative even before an ECJ ruling is issued. The "Poland test" will now be applied to extraditions to Hungary, too. Beyond that, plaintiffs may now oppose the application of any decision of Polish and Hungarian courts which so far were always automatically recognized and executed in other Member States. In August 2018, the German Bundesgerichtshof already cleared the path: It found a decision of a Polish court which sentenced the second channel of Germany’s public television ZDF to apologize again for labelling Nazi-German death camps as "Polish death camps" contrary to public order and a violation of the ZDF’s free speech rights. More of the same is likely to follow: Courts across the EU can now cease to implement court orders, judgments and decisions from Polish and Hungarian courts, pointing to the European Commission’s art. 7 TEU report on Poland and the Sargentini report on Hungary. In the years to come, this will probably not so much affect judicial cooperation and mutual recognition of court orders concerning transborder business, but it will soon affect issues with high salience for politics and public opinion, for example court orders about transborder child custody issues and proceedings between Polish and Hungarian state enterprises and foreign plaintiffs.

3. Finally, some huge collateral impact on migration politics is to be expected. In the past, German courts already suspended the deportation of refugee applicants under the Dublin III regulation back to Greece, after the European Court of Human Rights had found Greece unable to guarantee fair hearings and human treatment to applicants. Only a few months ago, transfers from Germany to Greece resumed. Instead, transfers to Hungary were put on hold for the same reasons: extremely fast proceedings, Hungary’s low recognition rates and the poor treatment of applicants, not to speak about the harassment and criminalisation of NGOs that try to assist applicants in Hungary. In contrast, the cooperation with Poland continues, despite the Polish government’s refusal to apply the EU relocation scheme and despite the fact that Poland, too, has a very low recognition rate and treats applicants almost as badly as Hungary. Lawyers of applicants risking deportation to Poland under Dublin rules may now point to the Commission’s art. 7 TEU report in order to protect their clients in other EU countries from being transferred to Poland. The Polish government may see this as another windfall gain, but it speeds up the creation of a core EU, based on the eurozone, a common asylum and migration policy and – as this is the foreseeable consequence – a common border control system, replacing Schengen.

It is this creeping shift within the EU which is so dangerous for the EU as a whole, but which is also likely to put more pressure on the Polish and the Hungarian government than any attempt to trigger art. 7(2) TEU. To be realistic, nobody must fear art. 7’s sanctions. But everybody should fear the impact of a slow, invisible meltdown of judicial cooperation and its collateral effects on the Common Market and on Schengen.

The Four Elements of the Autocrats’ Playbook

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Poland and Hungary are EU Member States where the rule of law is not safeguarded, and there is concern that more states could soon follow. Meanwhile, the Union’s position seems to be relatively weak in relation to rule of law backsliding in its constituent parts: new soft law of questionable quality has been produced by each of the EU Institutions, while positive change is nowhere in sight. This is notwithstanding even the belated activation of the Article 7(1) of the Treaty on European Union (TEU) mechanism against Poland and the recent move against Hungary, following the Sargentini Report. The situation seems to be evolving extremely fast and only in the direction of the deterioration of the rule of law in the Member States concerned. Making matters worse, there seems to be a total disagreement among essentially all the actors involved concerning what should be done. The political will to sort out the current impasse appears to be lacking also at the level of the Member States, resulting in toxic inaction and an absolute lack of leadership. This helps the autocrats in the backsliding Member States to consolidate their assault upon EU’s values even further.

A previously unimaginable situation has arisen, whereby the EU – a block created to ensure democracy and peace in Europe – now harbours Member States which, besides obviously not qualifying for Union membership if they were to apply today, work hard to undermine precisely the founding principles enshrined in Article 2 TEU, that the EU was created to safeguard and promote. Reinforced by EU funds and the membership of the internal market, Hungary and Poland threw both their weights behind undermining democracy, the rule of law, and the protection of fundamental rights in Europe. All the dynamism of the on-going deterioration of the rule of law notwithstanding, as it turns out the autocrats are not highly innovative. Which tools do they use to deny all the values that the other Member States believe in and are built upon?

There is truth in the old maxim proclaiming the imperative to try to get to know your enemies well. We outline four key techniques deployed by the autocratic regimes in Poland and Hungary in order to consolidate the constitutional capture and massive assault on European values. The list of tools deployed by both governments to achieve, legitimise, and consolidate the destruction of the rule of law includes four interconnected elements:

  1. Appeals to national sovereignty;
  2. Fetishisation of ‘constitutional identity’ taken out of context (i.e. the denial of constitutionalism as such through claiming abuse of power to be part of ‘identity’);
  3. Pleas to national security complete with the harassment of the media, NGOs, and independent educational institutions; and, last but not least;
  4. International disinformation campaigns.

Each of the four elements outlined comes with a whole stock of know-how, which the autocrats eagerly deploy, perfect, and also share among themselves. Let us look at some of the elements of each of the four.

Because we said so

The invocation of national sovereignty often happens without any further justification. Polish capture of the Constitutional Tribunal, the Supreme Court, the National Council of the Judiciary, and ordinary courts happened under the pretext that a so-called ‘reform’ of the judiciary was a matter for the Member States and the EU had no powers to interfere.

Another example from the same jurisdiction is the dispute related to the felling of trees in the Białowieża Forest, a UNESCO World Heritage Site. Pending the judgment in the main proceedings, the Court of Justice ordered Poland to stop logging. The Polish response was an intensified logging of trees, and Poland even asked for removing the forest from the UNESCO World Heritage List. Reference to national sovereignty came without any convincing justification.

Tautological self-identity

A somewhat more sophisticated variation of the above ‘because we said so’ technique is the attempt to hide departures from the rule of law behind the veil of constitutional identity. It is of course a distorted understanding of constitutional identity, or even an abuse of the concept.

The Hungarian example is illustrative. When delivering its abstract constitutional interpretation in relation to European Council decision 2015/1601 on supporting Italy and Greece in the refugee crisis, the Hungarian Constitutional Court invoked constitutional identity. However tautological this may sound, according to the court, ‘constitutional identity equals the constitutional (self-)identity of Hungary’. Its content is to be determined on a case-by-case basis based on the interpretation of the constitution, its preamble, and the achievements of the Hungarian historical constitution. This definition is so vague that it can be considered as an attempt to grant a carte blanche type of derogation to the executive and the legislative from Hungary’s obligations under EU law. In 2018 the concept of constitutional identity was even embedded in the Hungarian constitution.

Foreign agents

The neo-McCarthyist labelling of virtually anyone still capable of formulating dissent as foreign agents is a technique long used, but in Hungary it was taken to a whole new level with the adoption of Lex CEU and Lex NGO, targeting a private university and foreign-funded civil society organisations that are independent of government funds and thereby fit to express government criticism. The explanations of the laws attempting to force the Central European University out of Hungary and to limit public space for NGOs respectively attempt to delegitimise these entities by claiming they pose national security threats to the country.

The security-infused moves demonstrate that the preservation of autocracy is more valuable in the eyes of the executive powers than not harming the key sectors of the national knowledge-economy. In the case of Lex CEU no further explanations were given as to how a leading academic entity could possibly be a threat to national sovereignty, while in the case of Lex NGO, a populist rhetoric was invoked, interlinking NGOs helping asylum seekers and the image of asylum seekers as potential terrorists.

Deception

The fourth technique the autocrats use to undermine the rule of law is disinformation or misinterpretation of the laws and policies of the government. Again Hungary took the lead in 2011 when they sent a wrong translation to Brussels of their controversial new constitution, the Fundamental Law, which looked more in conformity with EU laws and values than the actual text. The Polish and Hungarian responses to EU institutions invitation for a determination of a clear risk of a serious breach by these two Member States of values enshrined in the founding EU Treaties also contain factual mistakes and deliberate deceit.

The very fact that we are now concerned with enforcing values seriously, amounts to nothing else but a concession that the presumption that there is a level playing field amongst all Member States in terms of the rule of law and other values – i.e. the fact that all of them actually adhere to the specific type of constitutionalism the EU set out to promote – does not hold (any more).

Belarusisation from the inside

It is vital to realize, in this context, that in a situation where the core values are not respected by an EU Member State, we are not dealing with a country that is revolting for one reason or another against a binding norm of European law. Rather, we are dealing with a qualitatively different phenomenon: the Belarusisation of the EU from within.

The core question is how to ensure that the EU’s own approach to the rule of law does not undermine, if not destroy, adherence to the principle of the rule of law in the Member States, which are, in fact, compliant with the values listed in Article 2 TEU. The discussion should focus in addition to the enforcement of the rule of law – whether by democratically elected or political institutions, or the judiciary, but also on the reform of the Union as a long-term solution. There is time, even while illiberal regimes seem to be there to stay, and the options regarding changing this reality, either supranationally or from a grass-roots level, are limited, if not non-existent.

In the meantime, EU institutions should come to a more subtle realisation of the EU’s constitutional role and should not insist on the specificities of EU law trumping all other considerations, including respect for the values the EU and the Member States are supposed to share, but should instead acknowledge the possibility of potential limitations so as to let the foundations of the EU, as provided for by the Lisbon Treaty, evolve.

This implies, inter alia, eventual substantive limitations on the acquis of the Union as well as taking Article 2 TEU values to heart in the context of the day-to-day functioning of the Union, elevating these above the instrumentalism marking them today. The result would be an emergence of a supranational constitutional system at the EU level, which would be truer to the glorious ‘constitutional’ label, and which would play a significantly more productive role in solving the backsliding challenges in the Member States, where the war against all what we believe in is currently waged.

The Polish Judicial Council v The Bulgarian Judicial Council: Can You Spot the Difference?

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On 17 September 2018, in Bucharest, the General Assembly of the European Network of Councils for the Judiciary (ENCJ) voted to suspend the membership of the Polish National Judicial Council (KRS) due to growing fears of lack of judicial independence in Poland. It was reported that 100 representatives voted for suspension, 6 were against (the Polish delegation), and 9 abstained. The Bulgarian delegation was among the abstainees, so Western commentators may wonder what the motivation for this position was.

Examining the sequence of events, which led to the peculiar vote of the Bulgarian Supreme Judicial Council (SJC), tells much more about the deplorable state of the rule of law and the lack of judicial independence in Bulgaria than in Poland. Bulgaria’s SJC is an independent body, which is responsible for the appointment and promotion of all magistrates (investigators, prosecutors, and judges) in Bulgaria as well as for monitoring their ethical values. Sadly, this institution traditionally complies with the whims of the executive, which has huge implications for Bulgaria’s justice system.

SJC’s sitting of 13 September: where is the separation of powers?

The verbatim report of SJC’s sitting on 13 September 2018 at which the suspension of the Polish KRS was discussed illustrates the long-standing problems of this institution. The sitting was presided by Boyan Magdalinchev who serves as Representative of the SJC, a key role in this institution defined in the Regulation on its administration. When the discussion on Poland was opened, Magdalinchev informed the SJC that he had asked both the Ministry of Foreign Affairs as well as the Ministry of Justice about their position on this question, which is striking considering that Article 117(2) of Bulgaria’s Constitution explicitly says that judicial authorities are independent of the executive and that judges, jurors, prosecutors, and investigators are bound only by the law. It is also unclear on what legal grounds such advice was sought.

What is more shocking for a Western observer is that these institutions gave concrete instructions in writing. Magdalinchev reported that the Ministry of Foreign Affairs underlined that if the SJC voted for KRS’s suspension, they could jeopardize Bulgarian-Polish relations, which was not advisable. In addition, Bulgaria counted on the Polish vote for the termination of the Cooperation and Verification Mechanism, so the SCJ had to keep this in mind, too. The Ministry of Justice, in turn, emphasized that the application of Article 7(1) was an ‘extreme measure, which had to be applied in extraordinary circumstances.’ It ‘advised’ the SJC to consider this for the vote on KRS’s suspension because this was a political question.

When the floor was opened for discussion, few members made contributions. Some members expressed views that the SJC had to vote for KRS’s suspension. However, other members resisted. Ognyan Damyanov declared that ‘there [was] no striking violation of the independence of the judiciary in Poland.’ Veronika Imova said it was incredibly difficult to take this decision because Poland was among the founders of the ENCJ and the KRS was an active member.

The SJC then voted for their common position on KRS: 5 members voted for suspension of KRS’s membership, 1 opposed, and 13 abstained. As a result, they gave a mandate to two representatives to present the Bulgarian position and to vote ‘abstain’ at the ENCJ sitting in Bucharest. It is interesting that 6 SJC members were absent from the sitting at which such an important question was discussed, too.

How did we get here?

Unlike the Polish judiciary who are currently under attack, Bulgaria’s justice system was captured by the executive a long time ago. The sitting of 13 September, referred to above, amply demonstrates that certain practices of the SJC are incompatible with EU values.

The SJC has 25 members: 11 of them are elected by the Bulgarian Parliament; 6 judges, 4 prosecutors, and 1 investigator are elected by the magistrates; the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the General Prosecutor become members automatically. Following a reform in 2015, the SJC is now divided into two colleges: the prosecutorial college (11 members) and the judicial college (14 members).

The so-called ‘political’ quota needs to have the ‘government-likability’ factor to be elected, so unsurprisingly these members are concerned about the government’s opinion formally and informally. The Representative of the SJC, mentioned above, had allegedly been implicated into a number of scandals concerning non-random distribution of case files and manipulation of judicial panels, but this did not prevent the Parliament from electing him for the political quota.

In addition, Bulgaria’s Prosecutor’s Office has an entirely vertical, ‘Soviet’ structure where all decisions depend on the General Prosecutor who has excessive powers and an untouchable status under the Constitution. He is traditionally faithful to the government. The structure of the Prosecutor’s Office has been criticized by the Venice Commission and by ECtHR case law – see, for instance, Kolevi v Bulgaria. The prosecutors and the investigators who are part of the SJC are direct subordinates to the General Prosecutor. His influence spills over the ‘political’ members of the prosecutorial college, too. The election of the Deputy General Prosecutor Ivan Geshev, nominated by the General Prosecutor himself, in July 2018 is particularly revealing: none of the members of the prosecutorial college asked any questions and the vote was unanimous. With regard to Poland and the KRS, the current General Prosecutor Sotir Tsatsarov was vocal and crystal clear at a sitting in July 2018: ‘Every State has the right to implement laws, which it deems appropriate (…). The situation in Poland is a question for the Polish Parliament and the Polish justice system (…). Infringing in the work of a sovereign country, which by the way defends its sovereignty in a praiseworthy way (…) is beyond the competence of the SJC.’

It may be shocking for Western commentators to learn that prior to the reform, which divided the SJC into two colleges, all members voted on all questions of appointment and promotion, which meant that prosecutors voted for the appointment and promotion of judges. In communist times, the Prosecutor’s Office was the voice of the regime and was considered more important than the court. This hierarchy, which is not compatible with democratic values, has remained in spirit. Prior to the reform, many judges were promoted because they were faithful to the prosecution. In turn, others suffered disciplinary action when they did not comply with prosecutorial caprices. While the reform constitutes a change for the better, it is extremely difficult to alter the mindset. In a prior article, I raised concern that even the President of the Supreme Court of Cassation is abused because he does not follow orders by the executive and the prosecution.

Where now?

Ultimately, Bulgaria’s government is afraid that Bulgaria may be the next rule of law crisis, so it seeks to build strong relationships with other countries threatened under Article 7 of the Treaty on European Union. The vote on Article 7(1) and Hungary at the European Parliament serves as evidence for this trend – the MEPs from Bulgaria’s ruling party GERB supported Orbán.

Meanwhile, what happens in the Bulgarian SJC and the Bulgarian justice system as a whole can provide an illustration of what may occur in Poland in the future. The Bulgarian case is worse because the country is subjected to the Cooperation and Verification Mechanism, which monitors judicial independence as well as the fight against corruption and organized crime. Since I have read all reports on Bulgaria, I regret to observe that they are sugar-coated and seem to omit disturbing information. Bulgaria is permanently torn by scandals regarding non-random distribution of case files, abuses of judges and prosecutors who resist political orders, purposeful destruction of evidence by authorities etc., but these are not included in the reports under the Cooperation and Verification Mechanism. As a scholar and as an EU citizen, I am starting to doubt not only if EU institutions have the will, but also the capacity to identify threats to the rule of law.

“Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect. The Polish Constitutional Court Then, Now and … Tomorrow

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Does anybody still remember what has happened to the Polish Constitutional Court (“the Court”) – the first institution to be razed to the ground by the Polish counter-revolution? In the whirlwind times of PIS and an unending list of the fallen institutions, three years might indeed seem like an eternity. The “new court” that has emerged from the rubbles of the rule of law has more than readily embraced a new role of serving its political masters. The transformation of a once-proud and respected institution into a pawn on the political chessboard painfully reminds us of how deep off the cliff Poland has fallen in just three years.

The Scars of Unconstitutional Capture

The ruthlessness with which the Court has been emasculated by the majority, and the persistence with which it has been thwarting the unconstitutional attempts to pack it and disable it, has been told and retold on many occasions. It paints a disturbing story of democracy and institution in distress. 2016 went down in history as fundamental in the institutional history of Polish constitutionalism. What started as “court-packing” soon transformed into an all-out attack on judicial review and checks and balances, and ended with a full-blown constitutional coup d’état and the destruction of independent constitutional review in Poland. This attack has been unprecedented in scope, efficiency and intensity. It has never been premised on dissatisfaction with the overall performance or particular acts of the Court, but rather struck at its very existence. The Court, a once proud institution and an effective check on the will of the majority, entered 2017 as a shell of its former self with constitutional scars. The latter affect not only the legitimacy of the institution, but also the very constitutionality of the “decisions” rendered by the new court in 2017 and beyond. Five lasting scars transformed the institutional identity of judicial review in Poland. First, the Court, as it stands now, is composed of judges that have been elected unconstitutionally and rushed on the bench by the parliamentary majority per fas et nefas. At least three of the current judges should have never been sworn in the by the President since there was no vacancy on the bench at the time of their appointment. Sheer and blunt political power prevailed over law. These are “irregular judges” (one of them became Vice-President of the Court since then…). Second, despite the unconstitutionality of their mandate, they have not only been sitting on the cases heard by the Court in 2017, but now they have also validated ex post facto their own selection to the Court. Third, the President of the Court – Judge J. Przyłębska – has been elected President of the Court, and sworn in by the President of the Republic in clear violations of applicable rules. Fourth, the statutory scheme of intricate legislative provisions adopted by the new majority in 2016 brought the Court to heel and paralysed its day-to-day functioning (see here and here. Cases are decided in camera, and the assignment of cases to individual judges is opaque and depends on the whim and caprice of the unconstitutionally elected President. She tailors the composition of the bench to the political importance of cases. Indeed, J. Kaczyński has reasons to be pleased when saying “the Court works as planned” (in reality it is just the opposite: the must-read Report by Helsińska Fundacja Praw Człowieka shows that the “new court” has bottomed out in 2017). The more important the case from the perspective of political majority, the more likely will it be heard exclusively by judges selected by the new Parliament. The Court decides less and less cases, as the cloud of unconstitutionality hangs over its decisions. These judges have repeatedly shown over the course of 2017 that they see themselves as an extension of the will of the Parliament. And finally, fifth, unwanted judgments of the “pre-2017 Court” have been removed from the Court’s website. Yes, all this happened in a Member State of the EU.

This begs a question: How should academia respond? We must not pretend that judicial review in Poland is still in place and proceed to legalistic analysis of the judgments rendered by a court as if nothing happened. There is a qualitative difference between 2015/2016 and 2017 that bears on our selection of cases and their treatment. 2015/2016 was constitutionally important with the Court thwarting off the political assault, and building important “existential jurisprudence” centered around the rule of law, independence of the judiciary and separation of powers. 2017 saw a new face of constitutional review. When the Court was finally taken over by the ruling party, Polish politics of resentment entered into a new phase: consolidating the grip on the captured state – media, ordinary courts, Supreme Court, National Court of the Judiciary. The list goes on. The Court’s composition was tailored to fulfil a crucial role in the process.

Looking back on 2017, one can see how the capturing of the referees, and having them firmly on the government’s side, entails three interconnected processes: i) weaponizing judicial review, and using it against the opposition; ii) instrumentalizing constitutional review in the process of implementing the political agenda; and finally, iii) judicial rubber-stamping of all unconstitutional schemes placed before it by the ruling majority. As a result, the “existential” and “symbolic jurisprudence” of 2015-2016 has been transformed into “subversive jurisprudence” focused on sanctioning the destruction of the last remaining elements of the rule of law in Poland. The term “symbolic” is important: It underscores the importance of standing up for the constitutional essentials in times of constitutional malice and nihilism. As rightly noted by T. Ginsburg: “Only when there is agreement on what constitutes a violation and mutual expectations that citizens will in fact enforce the rules will democracy emerge and be sustained […] in some limited conditions, court decisions can survive as focal points in helping citizens coordinate, and force the autocracy to liberalize […] a court decision can provide clarity as to what constitutes a violation of the rules by the government. […]”.

The efficacy and alacrity with which the facade court acquiesced to its new role as enabler add an important element to the growing doctrine of “populist constitutionalism”. It shows that constitutional courts do not have to be rejected. Rather, the new authoritarians will do their best to capture these courts, then defang and co-opt them, all in order to tame the court. What O. Kircheimer called “the element of uncertainty” typical for independent adjudication, is reduced to zero with respect to captured courts.

Of “Subversive Jurisprudence”. Manifestations

Prior control of the amendment of the Law on assemblies was initiated by the President of the Republic of Poland with respect to a provision on the so-called periodical assemblies (Kp 1/17). “Incidentally”, monthly commemorations of the tragic crash of the presidential plane in Smolensk with 89 members of the official delegation and 7 crew members on 10 April 2010 fell within the scope of this very precise definition. They are co-hosted by J. Kaczyński – brother of the late President and head of the ruling party – and used to mobilize his supporters. According to the new provision, the President of a local government (pl. “wojewoda”) may issue consent for 3 consecutive years of exclusive organization of such gatherings, in a given place, or on a given route, on predetermined dates. The privileging of such assemblies in relation to other public gatherings lies in the fact that the organizers of the former enjoy priority in choosing the time and venue, even in relation to assemblies notified earlier. In addition, local authorities are required to issue a decision prohibiting any other meeting to take place, even when they do not violate the law or threaten the life or health of people or large size property. Once the wojewoda consents to holding cyclical assemblies, the local authority is obliged to prohibit, within 24 hours of receiving this information, the organization of meetings previously notified, if they are planned at the same time and place. If such a decision is not taken, the wojewoda immediately prohibits coinciding gatherings.

The Court gave a short shrift to all constitutional concerns raised by the President (no appeal against the decision of the wojewoda, retroactivity). The Court approvingly spoke of the legislator’s correct response to “new social circumstances”, which required addressing and ordering and classifying “new facts” in the context of the need to ascertain “safety to persons and entities as well as an order”. While the judgment lacks logic and force, the most important constitutional take-away is that it changes in a dramatic fashion the relationship between the individual and the state that prevailed in the judgments of the Court until 2015. The new interpretation starts from the subordination of the individual to the state and accepts a radical limitation of the individual’s autonomy against encroachments by the majority. The dignitary concept of the rights takes backstage to a communal reading of the rights. Community comes first, individual rights second. The Case was decided with the unconstitutional judges sitting on the case.

The doubts as to the composition of the Court were again raised in Case K 32/16 on the reform of the ordinary courts (proceedings were discontinued as a result of the National Council of the Judiciary withdrawing its application for review). The avowed objective of the government to capture the ordinary courts and the Supreme Court (SC), provide a background for the case decided on 24 October 2017 (case K 3/17). The Constitutional Court (again with the irregular judges sitting on the case) passed a majority decision in which it stated that the resolution on the regulations for the selection of candidates for the post of First President of the SC modifies the law on the SC and the Constitution of the Republic of Poland in an unacceptable manner. It pointed out that the Chairman of the General Assembly of Supreme Court Judges was the appointing authority, and not – as required by the Constitution – the General Assembly of SC Judges. The Court found parts of the provisions governing the procedure unconstitutional. The Court, despite considering the applicant’s allegations, did not state that legal acts adopted on the basis of unconstitutional regulations are ineffective. The decision in turn opened the door to “reforming” the allegedly defective SC.

In case K 5/17 all judges deciding the case were carefully handpicked by J. Przyłębska from the judges elected by the new Parliament and among the judges sitting on the cases were two unconstitutional judges. The case merits special attention as an example of a sophisticated scheme to bring down the National Council of the Judiciary (NCJ) under the pretence of legality. It also shows that compromised judicial review delivers on the promise of political justice: minimising uncertainty of the result. The Constitution stipulates that the term of office lasts four years. The Minister of Justice (and President Duda before him) questioned the selection procedure as regards appointees to the Council. They are elected by judicial self-government from among the "elected representatives". According to the Minister of Justice this violated the principle of equality and limited the powers of ordinary judges in the elections. He also challenged the possibility for the term of office of NCJ judges to begin on dates different from that of parliamentarians elected to the Council. The Court ruled that the members of the Council are to be elected as a body, and the four-year term applies to the institution as such, rather than to individual members of the NCJ. The Court also found that the judges’ right to vote for their representatives on the NCJ has been violated as well since they cannot vote directly on the members of the NCJ. This is an absurd ruling. Firstly, all judges do have a right to choose their candidates. Every judge has the power to select the electors, and they in turn will choose from their midst the candidates to the Council. Secondly, as for the NCJ’s term of office, the reasoning is highly questionable: The Constitution nowhere stipulates that the term of office applies to the Council as a body. However, the logic and legal arguments were of the least of concerns to the judges. Read between the lines: the case was lodged at the Court with the sole purpose of providing “a justification” for a political capture of the NCJ. The political plan was to use the courtroom to rubber-stamp the Minister’s claims that the NCJ is unconstitutional and, as such, needs reform. As a result, the Ministry of Justice, now emboldened by the fabricated unconstitutionality, followed through its promise and the new Council has been appointed exclusively by the political branch which itself flies in the face of the Constitution. The Court was used in a legislative scheme to bring down another constitutional body – the Council. And it delivered. Also on 24 October 2017, “the court” decided that three unconstitutional judges were … constitutional after all. Of course, the fake judges were sitting, and thus deciding “in their own case”. In this way, the capture of the Court has now been officially sanctioned and completed.

From “Subversive jurisprudence” to Unconstitutional Incitement

The message that comes across the above analysis is bad enough already. However, this is not the lowest point the court-enabler has hit. True bottoming out happened in an obscure case (K 9/16 – the court was again composed of four irregular judges which by now has become a common constitutional practice) and by way of a dissenting opinion of one of the fake judges (and former secret service agent) M. Muszyński. The truly remarkable aspect of the case is part of his dissent that reads (my translation): “I am reminding Adam Bodnar that withdrawing the motions lodged by his Office at the Court without formal change of the legal provisions he questions as unconstitutional, shows that Adam Bodnar falls short of realising the statutory mandate of his office. This is even more so considering the fact that the motives he adduces for such withdrawals are baseless and devoid of any substance. Acting in this way, Adam Bodnar betrays the oath he has taken. As such it constitutes a legal basis for dismissing A. Bodnar”.

This is no longer weaponising judicial review. It is a direct incitement to unconstitutional action. Polish counter-revolution has reached its final stage.

Waiting for New Existential Jurisprudence of … ordinary courts?

The credibility of constitutional review in Poland has been dealt a deadly blow, and the Constitution has been reduced to mere a fig-leaf. Any future decisions taken by the unconstitutional court with the unconstitutional judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or by, “fake” judges, their own proceedings will be vitiated by invalidity. The Minister of Justice did not waste time and threatened that ordinary judges who refuse to follow the rulings of the “new” constitutional court staffed by judges loyal to the ruling party will be prosecuted. These are all dramatic consequences entailed by the change in constitutional narrative in Poland. What Poland needs today is the constitutional jurisprudence of ordinary courts that counter the unconstitutional activities and existence of the fake constitutional court. Such “emergency constitutional review” would not simply respond to legal change or to tension between the branches. It would stave off systemic revolution brought about by the unconstitutional capture of institutions and concepts. When constitutional review faces systemic and permanent dysfunction for whatever reasons, resort must be had to emergency review (on the concept see here) by ordinary judges. Emergency judicial review would play an important mobilizing role for pro-democracy and rule of law initiatives. “Calling a spade a spade” by the judiciary would provide a crucial focal point of societal resistance. Judicial pronouncement in defense of the constitutional order would transform into a symbolic point of reference as a source of loyalty to the oppressed constitutional values. Clarity about the constitutional state of play and constitutional interpretation would focalize the resistance, and move it forward.

Living with, and Resisting the Captured Constitutional Court

The relevant question today is no longer whether emergency review is warranted, but rather whether ordinary judges would be willing to accept their new role. The judges are faced with the most dramatic choice and dilemma here: either to fall in line and bury their heads in the sand by applying the rulings of the “new court” that are vitiated by unconstitutionality, or face up to their own mandate of being bound only “by the statute and the Constitution”, and directly apply the constitution (not the suspicious decisions of “the new court”) instead. What about the cases in which a decision was taken by the unconstitutional judges, but is in favour of an individual? Should an ordinary judge follow such a decision and protect individual rights? Framing its decision in terms of the Constitution could, at least, create an impression that a judge follows the Constitution, not the decision itself. At times, it might be difficult to discern where the Constitution starts and the invalid decision stops, and vice versa. These concerns and challenges go beyond the normative, though. They raise fundamental questions of judicial ethos, and there is no ready-to-use abstract formula here. Each judge in his own consciousness will have to decide how to decide – and be prepared to face the consequences.

2018 and Beyond. Challenges of Courage and Memory

By the end of 2018, the entire Polish judiciary might indeed be captured. Kaczyński’s dream is finally coming true: a fully subjugated and incapacitated court, at beck and call of its political masters. Yet, the symbolic jurisprudence and the rule of law will never be wiped out entirely as long as judicial review and the Constitution will be reinforced by the ordinary courts, and as long as citizens do not forget about the institution they used to call “Polish Constitutional Court”. Once the ordinary judges fail the test, and cave in to the political pressure, and the citizens forget, subversive jurisprudence will indeed reign supreme.

Will Poland, With Its Own Constitution Ablaze, Now Set Fire to EU Law?

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On Wednesday Polish media announced that the Polish justice minister and Prosecutor-General Zbigniew Ziobro had on 4 October expanded his constitutional review application from 23 August (case K 7/18). In the 4 October petition, he asked the Trybunał Konstytucyjny to pronounce the unconstitutionality of Art. 267 TFEU

to the extent that it allows referring to the Court [of Justice] a preliminary question … in matters pertaining to the design, shape, and organisation of the judiciary as well as proceedings before the judicial organs of a member state. [p. 1]

Comments from eminent Polish lawyers and academics appeared immediately, with the emphasis understandably put on the political significance of the move and its possible implications for the relations between the already strained Poland–EU relations, including the worries of Poland leaving the EU. The imminence of local elections no doubt fuelled such dramatic narratives being developed in order to turn the electorate, staunchly committed to the EU, away from the ruling party.

The purpose of this note, however, is rather to examine why the case, despite its obvious entanglement in domestic politics, may be of interest to EU lawyers. I will first summarise the arguments given by Mr Ziobro in support of his petition, and later consider some more general implications of this reasoning.

Mr Ziobro’s arguments.

Mr Ziobro starts with a familiar reassertion of the Trybunał Konstytucyjny’s competence to review EU treaties on the basis of the Polish Constitution (pp. 3–4). He then proceeds to set out the basic workings of Art. 267 TFEU. Citing C-297/88 Dzodzi v. Belgium, Mr Ziobro alleges that “in practice there are preliminary questions asked on the basis of the challenged norm whose subject-matter extends to issues beyond the scope defined in Art. 267 TFEU, and the CJEU rules on those issues under Art. 267 TFEU” (p. 8). He proceeds to observe that the recent preliminary references made by the Polish Supreme Court confirm “the normative content of Art. 267 TFEU, which includes the court’s competence to refer a preliminary question on the design and organisation of the judiciary” (p. 10).

This is presented as an abuse of the preliminary reference mechanism—although the preliminary questions “admittedly … related to EU acts,” they nonetheless “were essentially aimed at getting the CJEU to opine on the judicial system in Poland and in particular to relate to the legality of the Supreme Court Act—so of a domestic, not a Union, act, moreover one with no EU elements” (p. 9). This idea of a preliminary reference being de iure limited to EU law, but de facto having domestic (political? legal?) implications is repeated several times at pp. 9–11. The distrust discernible in those remarks is striking. It is one thing to say that some references may have consequences unwarranted by the jurisdictional scope of Art. 267; Mr Ziobro, however, seems to insist throughout that in any case where the question of EU law may have any impact on any matter that is considered ‘purely’ domestic, then ipso facto there is some sort of unwarranted and illegitimate interference. This much stronger claim provides the basis for the main argument against Art. 267.  For it is difficult to see why we should be worried about the fact that preliminary questions “may also concern matters constitutionally restricted for [the exclusive competence of] the organs of the Republic of Poland” (p. 22) unless one assumes that the CJEU will fail to note the relevant jurisdictional issues and readily answer actually unwarranted questions.

As one of such spheres of exclusive domestic competence he mentions the ‘organisational autonomy’ of the judiciary of a member state (pp. 25–26), awkwardly noting in passing that ‘procedural autonomy’ (which may or may not be synonymous with ‘organisational autonomy’) may however be regulated—and thus limited—by the EU (p. 26). His argument then boils down to this: “[a] provision which leaves a member state court free to determine competences contrary to the Constitution of Poland” (p. 27) infringes the principle that “[t]he organs of public authority shall function on the basis of, and within the limits of, the law,”1)Art. 7 of the Polish Constitution and in particular of the Constitution. For as it is the exclusive competence of the legislature to regulate the judicial system (pp. 19–20; 27), it would be essentially illegitimate to transfer that competence to any other organ. Art. 267 in its full width (and presumably because of the alleged repeated abuses thereof?) constitutes precisely such a transfer.

Implications

Those are, roughly, Mr Ziobro’s arguments, which may as well turn out to be adopted more or less wholesale by the Trybunał Konstytucyjny. Such a course of events would have some interesting—if drastic—implications for the integrity of the EU legal system.

The first headlines reporting the application were somewhat exaggerated: it was claimed that Mr Ziobro seeks to challenge the constitutionality of Art. 267 tout court. As we have seen, his challenge is substantively limited, and his arguments make it quite clear that his immediate end is to safeguard the reforms of the judiciary from any challenges from Luxembourg. But we have also seen that he challenges the Article “to the extent that it allows referring to the Court [of Justice] a preliminary question … in matters pertaining to the design, shape, and organisation of the judiciary as well as proceedings before the judicial organs of a member state” (my emphasis).

I have mentioned that Mr Ziobro equivocates ‘organisational’ and ‘procedural’ autonomy, probably in an attempt to find some room where he could ground the supposed exclusive autonomy in matters relating to the organisation of the judiciary without thereby uprooting the fundamentals of Luxembourg jurisprudence. The truth is, however, that if the petition is affirmed by the Trybunał Konstytucyjny, this would mean a potential rejection of a whole body of EU procedural law that establishes domestic courts as the administrators of the EU legal system. Indeed, it could be sensibly said that even the question in 26/26 Van Gend en Loos was in at least one sense “pertaining to the design, shape, and organisation of the … proceedings before the judicial organs of a member state.” On the interpretation offered by Mr Ziobro, the Court’s failure to disclaim its jurisdiction in that case meant that the ruling is unconstitutional and inapplicable in Poland.

Of course it may be said that Mr Ziobro’s target is not so much the result of unconstitutional preliminary references, but only the very act of making a reference. What this would mean is, however, difficult to grasp. Would the unconstitutionality of a reference by a Polish court taint the force of a ruling given directly in response thereto? Presumably yes—Mr Ziobro needs the Trybunał’s ruling precisely to be able to contest Luxembourg’s responses to the recent Polish references. If so, what would then be the status of a reference by a Czech court? Would the Polish government insist that the Czech reference is equally unconstitutional and the corresponding ruling has no binding force in Poland? Or would it accept the ruling? These questions are not readily answered unless we decide to take the most intuitive, but disastrous interpretation that all rulings given on ‘forbidden’ preliminary references are void—disastrous, because it would entail Poland’s rejection of a major part of EU constitutional law.

The principles of judicial cooperation and procedural autonomy are already one of the more difficult themes of EU constitutional law, and the possible Polish ruling may make it still more convoluted. Unfortunately, that may be the point—it has been part of Mr Ziobro’s strategy to sometimes push doctrinal confusion to the point in which, in Hart’s famous phrase, “all that succeeds is success.”2)H.L.A Hart, The Concept of Law (3 ed. OUP 2012) at 153.

References   [ + ]

1. Art. 7 of the Polish Constitution
2. H.L.A Hart, The Concept of Law (3 ed. OUP 2012) at 153.

Poland’s Supreme Administrative Court recognizes Same-sex Parents

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On 10 October 2018, the SAC overruled a judgment of the Administrative Court in Cracow (ACC) and previous administrative decisions related to the refusal to enter a British birth certificate into the Polish birth register (transcription). The case concerned the transcription of a British birth certificate of a four-year-old boy, a son of two women who are Polish citizens.

Ruling of the ACC

The overruled ruling of the ACC was in line with the previous argumentation of other Polish administrative courts as well as Polish administration representatives, but also with previous rulings of the SAC. Their legal stance had so far been that a transcription of a foreign birth certificate that included same-sex parents was in violation of the public policy (ordre public). In the overruled judgment, the ACC reasoned that a foreign birth certificate, in order to be transcribed, needed to be in line with the Polish Family and Guardianship Code, which defines parents as persons of different sex. In addition, the ACC brought up technical arguments, such as an incompatibility of the British birth certificate with its Polish counterpart, which in consequence would result in a woman being listed as “a father” of a child. Finally, the ACC stated that, in accordance with the European Convention on Human Rights (ECHR), contracting states are free to limit civil unions and marriages to different-sex couples only.

Ruling of the SAC

The proceedings before the SAC in October 2018 were joined by the Polish Commissioner for Human Rights and the Helsinki Foundation for Human Rights. Both parties asked the SAC to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The preliminary ruling would have been related to a potential limitation of freedom of movement of a minor Polish citizen, who currently lives in the United Kingdom with his two mothers.

The SAC pointed out that there is no need to refer for a preliminary ruling to the CJEU, given that it had already ruled in Coman and Others that same-sex marriages need to be recognized between the EU Member States for the purpose of the freedom of movement. Although the SAC alluded to the fact that under the ECHR Poland does not have an obligation to recognize same-sex civil unions or marriages that were entered into outside of Poland, there is an obligation to register birth certificates of children of same-sex parents that can be derived from Polish law.

Consequently, the SAC overruled the ruling of ACC. The presiding judge of the adjudicating panel in the case before the SAC pointed out that he had changed his legal position since 2014. Back then he was a member of a panel in a similar case before the SAC, which ruled against a transcription. The change was due to new legal provisions related to the Civil Status Act. Up until 1 March 2015, a transcription of a foreign civil status act, such as a birth certificate, was facultative under Polish administration law. The new legislation introduced an obligatory transcription of a foreign civil status act in cases of a Polish citizen applying for a passport, an ID card or a social security number. The SAC pointed out that this mandatory transcription contradicts a stipulation that such a transcription may be contrary to the public policy. Furthermore, the fact that Polish law may be in conflict with foreign law is not a reason to invoke the public policy clause when considering the case.

The refusal to transcribe a foreign birth certificate would, according to the SAC, render a child an “illegal person”. Such status would restrict the child’s access to other rights and freedoms. The best interest of a child and the principle of nondiscrimination were the key elements in the SAC’s line of argumentation.

Tender Signs of Wider Acceptance

What does this ruling mean in practice? Bureaucratically speaking, a British birth certificate of a minor will be entered into the Polish register of civil status. Both mothers will be indicated as parents of the child. When a Polish birth certificate is issued, parents will be able to file for a Polish passport, ID card and a social security number on behalf of the child. All these documents will include both mothers as parents.

Generally speaking, however, the October 2018 ruling is revolutionary to the extent that it leads to the recognition of certain legal consequences of birth certificates, which show same-sex couple as parents. Just four months ago, in June 2018, the SAC ruled against the possibility of a similar birth certificate transcription. An argumentation for the refusal hinged upon the cassatory complaint of the parents and their legal representatives, which were deemed vague and imprecise by the SAC. The June 2018 ruling, which upheld a decision of an Administrative Court in Gliwice to refuse the transcription of the British birth certificate, rendered London-born four-year-old boy a de facto stateless person.

The change of the law that took place on 1 March 2015 might not have been the only reason for the SAC’s change of mind. Although the transcription of birth certificates was not obligatory under previous regulations, the issuance of a Polish birth certificate was nonetheless a condition for an issuance of a Polish passport as per the regulations of the Polish Ministry of Internal Affairs and Administration on passports from 2010.

In my opinion, an oral justification of the October 2018 ruling demonstrates a wider acceptance of family life led by same-sex couples by the Polish judges. The 2014 justification indicated that the ECHR contracting states are not under an obligation to register same-sex marriages and civil unions. The presiding judge in the October 2018 case explained that the ruling does not relate to the recognition of a same-sex marriage or a civil union by Poland, but rather to the best interest and rights of a child.

In 2014, the SAC ruled that the refusal to transcribe a birth certificate does not violate the freedom of movement. In 2018, the SAC admitted that the lack of transcription was an obvious violation, to the extent that it rendered a preliminary ruling by the CJEU unnecessary. In 2014, the SAC in its written justification referred to a family made up of a same-sex couple as a “family” in quotation marks. It appears that such a misuse of quotation marks will not be repeated by the SAC in 2018.

 

The author prepared the Commissioner’s legal position in the case described above.

The text was originally published in Polish at Archiwum Osiatyńskiego.


Interim Revolutions

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The decision of 19 October of the Vice-President of the Court of Justice, ordering the Republic of Poland to suspend the effects of the Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age, is revolutionary to say the least. The Court has entered a terra incognita, a place where no previous European court had ever entered into, forcing a sovereign Member State to choose between its membership to the club of European integration, or to walk away and follow the path of authoritarian illiberalism. To do this in an Order of interim measures, without hearing the defendant Member State, and two days before a crucial regional and local election in Poland, is quite a gamble on the part of the Luxembourg court.

However, the stakes are so high that the Court was left with hardly any other choices. Unfortunately the Polish government has triggered a process and a style of governance that has eventually cornered it into an untenable position, a no-prisoners approach in which EU Institutions have now no other choice but to stand firm and keep calm. In contrast with other illiberal governments within the Union, notably Hungary, the Polish crisis is acutely visceral and radical.

Looking at the Order from a strictly legal angle, the decision is quite an event and a ground-breaking precedent. Interim measures are exceptional means to ensure the effectiveness of a procedure, but they are mostly used to suspend the effects of EU acts. Challenges before the Court will usually involve private applicants questioning the legality of, for example, Commission decisions. The scenario in which a Member State acts as a defendant to which an interim measure can be imposed, is basically limited to infringement procedures brought by the Commission or by another Member State on the grounds of Article 258 TFEU. These kinds of interim measures are hardly ever requested, for the Commission is well aware of the reluctance of the Court to order Member States to act or refrain from acting in provisional terms. Such interim relief is granted on the grounds of Article 279 TFEU, a provision that gives the Court ample discretion to be creative about the kind of interim measure that the case deserves, but in practice they are scarcely requested and, as a result, hardly ever granted.

In Friday’s Order, the Vice-President has not granted ordinary interim relief on the grounds of Article 279 TFEU, but a particularly urgent kind of relief. The Order relies on Article 160(7) of the Rules of Procedure, which allows the Court to rule prior to hearing the defendant Member State. These interim measures are used when the urgency is such, that the order must be granted immediately and therefore with no time to hear the defendant party. Therefore, there will be another decision on the interim measures soon, once Poland has been heard in writing and, most probably, in the course of an oral hearing.

Furthermore, the Order is retroactive. The Judiciary Reform Act introduced a new retirement age for judges set at 65 years of age, and since its entry into force it has already served as a legal cover for the retirement of several sitting judges. Despite the fact that the Act had been suspended by the Supreme Court as a result of a preliminary reference sent to Luxembourg this summer, some of its provisions have already produced effects. Therefore, the Order imposes on Poland a retroactive suspension of effects that deploys the rulings’ effects from the moment of entry into force of the Act.

And finally, the Order steps into a terrain which has traditionally been handled with the utmost care by the Court, but which is now an arena in which the Court seems comfortable to rule in far-reaching ways. When a similar action was brought by the Commission against Hungary’s reform of the judiciary in 2012, the grounds of review were linked to Directive 2000/78 and discrimination on the grounds of age. A rather low-profile approach for a case that involved very special “workers”, as is the case of national judges. However, this time around the Commission has brought the case against Poland on the grounds of Article 19 TEU, which states that the EU’s judiciary is composed of both EU and national courts, acting in conformity with fundamental rights and in full independence. This independence is now being questioned by the Polish reforms. There is hardly any other provision of EU law at stake, but this has been deemed to be sufficient by the Commission to bring such a case, and the Court appears willing to play ball. There are good arguments about competence that could be used against the Commission, but it seems that one thing is to reform a national judiciary, and quite another to launch a full-blown attack on the independence of all the high courts of the land. The Commission appears to be committed to fight the latter, but Poland will certainly argue that the competence of the Union is shaky to say the least.

Nevertheless, last week’s Order has been slowly and carefully brewed in the Luxembourg futuristic anneau. In the landmark case of the Portuguese judges, rendered in early 2018, the Court set the tone for this new ground of review, and stated that Article 19 TEU, including its reference to independence, is a relevant parameter of review of national measures. Shortly before, in the case of the Polish forest of Białowieża, the Court ruled that in case of breach of an interim measure addressed to a Member State, penalty payments and pecuniary sanctions can be imposed by the Court at the request of the Commission, on a careful but daring interpretation by analogy with Article 260 TFEU. Before the 2018 summer holiday, in the LM case, the Court sent yet another powerful message by stating that judicial cooperation with Poland in the field of criminal law could come to an end in Poland if the European Council finally triggers Article 7 TEU proceedings against the Member State. Last week’s Order seems to be another piece in this terribly complex jigsaw puzzle that the Polish challenge is proving to be.

But the stakes are high and the Polish government knows it. It is no coincidence that the Polish Prosecutor’s Office has recently brought an action before the Constitutional Court arguing that the suspension of effects enacted by the Supreme Court is unconstitutional. If the Constitutional Court sides with the Prosecutor (and the new composition of the Court inclines me to think that it will), the argument could be well extended to Friday’s Order. With that ruling from the Constitutional Court, the Polish argument will probably argue that proceedings in Luxembourg are ultra vires and not applicable in Poland.

At that stage, the showdown will be inevitable and the Commission will have no other choice but to request the enforcement of the Order through Article 260 TFEU. Penalty payments will be imposed and Poland will refuse to pay following the ultra vires rationale. The Financial Regulation will have to be interpreted creatively so that the amounts receivable are offset by forthcoming payments to Poland. After all, Poland is a net beneficiary of the EU budget and it will not be difficult to ensure that the penalty payments effectively end in the coffers of the EU budget and not in the pockets of the Polish government. At that point, the Polish government will have to explain to its citizens why the generous contributions coming from Europe start to decline. The blame game might work for a time, but at some point the Polish people will realize that their government is not only risking their benefits, but even their European membership.

Whatever the result might be, the Court seems committed to playing the role that it has been anticipating for several months now. Nothing appears to be stopping the Court from playing hardball in this new chapter of European integration, in which “integration through law” has now turned, to the surprise and concern of us all, into “integration through the rule of law”. A nice but worrying twist that puts Europe on the eve of a new chapter, in its always bumpy road towards peace and prosperity in the continent.

This article has previously been published at the author’s blog Despite our Differences and is reposted here with kind permission.

Constitutional Pluralism between Normative Theory and Empirical Fact

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It has been recently floated in legal academia and the blogosphere that it is high time for constitutional pluralism to bow out of the European scene. The reason? It has been alleged to be (1) “fundamentally flawed and unsustainable” for allowing the application of EU law to be selective and unequal and (2) prone to abuse by autocrats, as demonstrated by the ongoing dismantling of democracy and the rule of law in Hungary and Poland where national (“constitutional”) identity is invoked all too often to justify patently illiberal policies.

Is constitutional pluralism really to blame? What is this beast anyway? In this short comment I would like to make a fairly straightforward but fundamental difference in approaching constitutional pluralism as an “is” or an “ought”1) Critical theorists and many psychologists might object to the very possibility of distinguishing the “is” from the “ought” – what is out there in the world and what should be. I maintain that this distinction is rationally possible even if in many situations our perception of “is” is tainted by our normative standpoint (the “should”).. I would argue that regardless of one’s perspective on the latter, constitutional pluralism is at least to some extent an empirical fact in the EU, one that needs to be reckoned with whatever our misgivings about the actions of Polish and Hungarian autocrats. I believe we should resist our “oughts” cloud the “is” of the European constitutional constellation.

Constitutional pluralism as a normative theory

It is far beyond the scope of this text to discuss the voluminous academic literature on constitutional pluralism. Surely, not all authors writing within that tradition have stipulated that constitutional pluralism is not merely the observable state of affairs, but in fact the desired one. However, the normative scholarship – and here normative is taken in its most common social science sense of signifying “ought” as distinct from “is” (which is empirical) – which emphasized that constitutional pluralism is the “right” state of affairs, is not illusory.

It would seem to me to be a perfectly legitimate – if debatable – theoretical standpoint that a heterarchical (pluralist) arrangement can be preferable to a hierarchical one, with each supporting at least partially different sets of beliefs about the world. In the case of constitutional pluralism in Europe, a simplified normative assertion might be that it is preferable that the ultimate seat of judicial authority differs – within discernible and mutually agreed limits – per level in a multi-layered polity, as this way diverging local preferences need not be inevitably stamped out for the sake of uniformity by a single judicial authority (imposing its own preferences on everyone, which impacts some more than others). The underlying belief might be that local preferences – cultural, legal, political – are worth protecting (once again, within limits).

The autocratic governments of Hungary and Poland are of course taking this normative position to its boundaries, or more precisely, beyond. Most constitutional pluralists would agree that there are constraints on how much latitude different seats of authority are entitled to within a given polity. This could hardly accommodate a challenge to the basic communicative mechanism of Article 267 TFEU as recently proposed in Poland. If we say that judicial independence is one such constraint for coexistence within the EU, then the Member States need to respect it, even if different ways of operationalizing the commitment might exist. There is no respectable interpretation of judicial independence which the actions of the Polish and Hungarian governments could conform to.

As a side-note, I am also not entirely convinced by the occasionally advanced argument that pluralist scholars have “empowered” Polish and Hungarian autocrats with their ideas. Any idea is potentially prone to misuse and misinterpretation, especially by autocratic regimes. Pluralist scholars have certainly not developed their normative theory to serve autocrats. That their scholarship and positions have been adopted by autocrats might force them to re-evaluate their worldviews and perhaps emphasize common constraints within constitutional pluralism but generally going by what autocrats and kleptocrats say is probably not a great guide to doing academic research.

Constitutional pluralism as an empirical fact

In any case, it is not my point here to defend the normative standpoint of constitutional pluralism (to which I do not particularly subscribe); that endeavour is best left to normative theorists. On the contrary, I think that regardless of where one stands on the normative spectrum – how should the EU be constitutionally organized? – it should be possible to agree that constitutional pluralism is to some extent an empirical fact of life within the EU as it exists at the moment.

The most obvious evidence for this (alleged) fact can be found in the Treaties. Article 4(2) TEU explicitly tells the EU to respect Member States’ national identities. If national identities imply constitutional identities, then some (unspecified) idea of constitutional pluralism was intentionally hard-wired into the Treaties by the Member States. What, on the contrary, was distinctly not included in the Treaty of Lisbon is the codification of the principle of supremacy of EU law over national law. Both the national identity and the supremacy clause were part of the Constitution Treaty (Article I-5 and 6 respectively) but only the former survived the redaction that followed popular rejection in France and the Netherlands in 2005, with the supremacy text ostensibly relegated to a non-binding declaration. On this reading, recognizing constitutional pluralism, albeit without specifying it, was a response to domestic democratic preferences.

While Member States tip-toe on committing to hierarchical federalism, national judiciaries occasionally openly defy the rulings of the self-appointed European supreme court. The Ajos saga is perhaps the most obvious and recent example here but there are others. What is notable about these instances of defiance is that they were perpetrated by courts from European legal systems with stellar reputations, so authoritarian motivations can be safely ruled out. Cases of defiance anecdotally demonstrate that judicial actors, just as political actors, do not take kindly to being marginalized – even if they could not admit it, they seek to preserve their power where possible, and the purposive ambiguity of the EU Treaties on the point of supremacy certainly puts national courts in a stronger position vis-à-vis the CJEU. Even where outright defiance does not occur, national courts might intentionally diverge from CJEU case law. We know very little about the extent to which this happens, as scholarship is lopsidedly focused on CJEU judgments, despite implementation of EU law and preliminary rulings taking place at national level. It is clear, however, that there are significant “black holes” in the EU when it comes to the application of EU law.

Supremacy of a higher legal order over a lower one – EU over national law – is a functional necessity for a given polity to operate in a relatively uniform and equal manner. But even if taken as necessary in a certain context, uniformity and equality are normative objectives, the opposites to some degree of normative pluralism. A hierarchy of laws and courts might underlie EU integration for it to be functional – thus Costa – but the absence of an explicit commitment to it on the part of all Member States is on the one hand an indication of their normative standpoint and, on the other, it leaves spaces for legal pluralism to operate as a matter of fact. Does this make it more difficult for the EU to ensure that all Member States abide by its fundamental values? Probably. We might deem this state of affairs undesirable – it ought not exist – but it does, and it has less to do with constitutional pluralists, even the normative ones, and more with the designers of the EU.

References   [ + ]

1. Critical theorists and many psychologists might object to the very possibility of distinguishing the “is” from the “ought” – what is out there in the world and what should be. I maintain that this distinction is rationally possible even if in many situations our perception of “is” is tainted by our normative standpoint (the “should”).

Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court

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At the beginning of October 2018, Poland’s Prosecutor General submitted a request to the Constitutional Tribunal to examine the compliance of Article 267 TFEU with the Polish Constitution, so far as it allows the referral of preliminary questions regarding the organization of the national judiciary. The news about this incident went to the public two weeks later, just before elections to the local government. Formally, the request is an extension of the application submitted to the Constitutional Tribunal in August 2018 (case K 7/18) in response to the preliminary questions submitted to the CJEU by the Polish Supreme Court (C-522/18 and C-537/18). The earlier application concerns the constitutionality of Article 267 TFEU, allowing – in view of the Prosecutor General – the national courts to refer preliminary questions bearing no relevance to the subject matter of the main case.

In the application dated October 4, 2018, the Prosecutor General demands that the Constitutional Tribunal declare the unconstitutionality of Article 267 TFEU “so far as it permits the national court to submit preliminary references on the interpretation of the Treaties or on the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union in matters relating to the system, form and organization of the judiciary as well as proceedings before judicial authorities of the EU Member State”.

The motion to the Constitutional Court deserves urgent attention for a number of reasons. Undoubtedly, it is another manifestation of the deterioration of Poland’s relations with the EU and the adoption of Poland’s hard line in its relations with the EU. There is not much exaggeration in the statements of Polish commentators that this is the prelude to Polexit or "setting a bomb under Polish membership in the EU”. Without going into the far-reaching intentions of the Prosecutor General, it can be stated that the expected judgment of the Constitutional Tribunal would allow the Polish authorities to disregard the preliminary ruling issued by the CJEU in response to questions referred by the Supreme Court in August 2018.

The relatively easy identification of motives underlying the application does not, however, exclude the need for analysis and evaluation of the contents of the application, i.e. the demand for a ruling on non-compliance of Article 267 TFEU, as well as the argumentation used as justification for this task.

Before that, however, it is worth making two remarks about the role of the main actors in this case: the applicant and the Constitutional Tribunal.

Influence and Competence

The first remark concerns the very strong position of the Minister of Justice in Polish politics, who, in the discussed case, acts as the Prosecutor General. He manages the common courts through subordinate court presidents. Most members of the new National Council of the Judiciary are associated with him professionally or personally. This also applies to judges who are members of the newly created Supreme Court’s Disciplinary Chamber, half of whom are former prosecutors. As the Prosecutor General, he can give instructions to all prosecutors who can take part in all court and administrative proceedings in Poland, and he can take over all cases run by subordinate prosecutors.

Recently, the Minister of Justice has also been directing the Polish policy towards the EU.  At the beginning of October 2018, at the Council of the European Union, he vetoed the adoption of an annual report on the EU’s Charter of Fundamental Rights. A further manifestation of Poland’s collision course towards the EU is evidenced by the application in question.

The second remark concerns the role of the Constitutional Tribunal in the discussed case. Due to the competences of the Constitutional Tribunal, the proceedings in this case should be discontinued. Jurisdiction of the Polish Constitutional Tribunal includes the examination of the conformity of acts of parliaments and other normative acts, including international agreements, with the Constitution. However, as the analysis of the motion in question shows, the Prosecutor General does not challenge the normative contents of Article 267 TFEU. In fact, he challenges the manner in which the Polish courts exercise their competence to refer preliminary questions to the CJEU.

It should be noted, that challenging the constitutionality of Article 267 TFEU is another doubtful example of improper use of the Constitutional Tribunal to settle political disputes or legal controversies. This practice consists in the artificial formulation of ad hoc constitutional problems, so that they are formally suitable for recognition by the Constitutional Tribunal. The result of such operations is judgments containing sentences that are specially "sculpted" for immediate political need. It is significant that these artificially created cases were brought to the Constitutional Tribunal by groups of MPs from the ruling party (sic!) or by the Prosecutor General. Typical examples of such practices are cases concerning: procedure for selecting candidates for the position of the First President of the Supreme Court and the National Council of the Judiciary (K 3/17, K 5/17), the application of the act of pardon by the President (K 7/17, K 8/17, Kpt 1/17, K 9/17), evaluating the correctness of the election process with regard to a judge, the President and the Vice-President of the Constitutional Tribunal (K 10/17) and the possibility of invoking the conscience clause while providing services (K 16/17). In the light of previous practice it is likely that the case discussed here will join the infamous list of artificial creation of constitutional review and the Constitutional Tribunal will examine the motion of the Prosecutor General to the substance.

The truth is however that the Prosecutor General is dissatisfied with the preliminary questions referred by Polish courts and wants to eliminate them using the authority of the Constitutional Tribunal. The list of cases concerning the independence of the Polish judiciary is growing quickly in Luxembourg, i.e. C-522/18 () C-537/18 (Krajowa Rada Sądownictwa), C-558/18 (Miasto Łowicz), C-563/18 (Prokuratura Okręgowa w Płocku), C-585/18 (Krajowa Rada Sądownictwa i in.), C-623/18 (Prokuratura Rejonowa w Słubicach), C-624/18 (CP), C-625/18 (DO).

It is therefore possible that the Constitutional Tribunal would consider the case admissible and issue a judgment declaring Article 267 TFEU unconstitutional, in scope challenged by the Prosecutor General. These are the expectations of many commentators. This clearly testifies to the fall of the authority of the constitutional court in Poland, the body that should safeguard the compatibility of the legal order with the Constitution.

It is obvious that the Tribunal should not engage in a substantive review of Article 267 TFEU also for other reasons. It should be recalled that the legal construction of the preliminary ruling (former Article 234 EC Treaty) has already been subject to constitutional review in a case regarding the Accession Treaty (K 18/04). The Prosecutor General’s arguments to justify a re-examination of Article 267 TFEU are inconclusive. According to the settled case law of the Constitutional Tribunal, the case shall be discontinued if there are no new circumstances justifying constitutional review of a provision that the Tribunal has already examined.

The admissibility of the application submitted by the Prosecutor General and reviewing the constitutionality of one of the most fundamental provisions of the Treaty, would amount not only to a violation of EU law, but also the infringement of the Polish Constitution. It would be incompatible with Article 9 of the Constitution, stating that the Republic of Poland shall respect international law binding upon it. In particular, it applies to international agreements transferring the competence of organs of State authority in relation to certain matters to an international organization or international institution (Article 90 of the Constitution).

Argumentative Cherry Picking

The main argument of the Prosecutor General concerns the competence of the national courts to refer preliminary questions to the CJEU. According to the applicant, national courts exercise wide discretion to submit preliminary references in areas reserved for competences of the constitutional organs of the State. The Prosecutor General argues that issues relating to the system, form and organization of the judiciary, as well as judicial procedures, have not been transferred to the EU in the Accession Treaty. According to the Constitution, this competence still belongs to the organs of State authorities, particularly to the national parliament. The State benefits from institutional autonomy in this area.

In view of the Prosecutor General, after the accession of Poland to the EU, the competence of national courts has been extended as regards the scope of the preliminary questions that may be referred to the CJEU. In his opinion, many questions do not relate to EU law. As an example, he mentioned the questions referred by the Supreme Court and other Polish courts in recent months. According to the applicant, it amounts to the extension of the Union’s competences without observing the required constitutional procedures. In consequence, courts referring preliminary questions to the CJEU, concerning the system, form and organization of the judiciary, as well as judicial procedures, violate the Polish Constitution since the competences in question belong to the national law-making authority.

The reasoning given by the Prosecutor General deserves a critical assessment. His arguments are formulated in a general way, giving the impression that they relate to all EU Member States, although similar allegations were not raised in other countries.

It seems that the Prosecutor General ignores EU law or knowingly passes its important aspects in silence. In particular, this relates to the main argument of the alleged extension of the scope of application of Article 267 TFEU by the national courts referring preliminary rulings. He does not take into account that the admissibility of the questions referred for a preliminary ruling is not decided by the national courts but the CJEU before adjudicating on the substance. Claiming that the scope of Article 267 TFEU has changed on the grounds that Polish courts have made inquiries with widely-formulated questions is not justified. It happens of course that national courts refer questions going beyond the interpretation or validity of EU law. However, the last word belongs to the CJEU that may consider a given case inadmissible.

In addition, the general qualification of organization of the judiciary and judicial procedures as matters falling within the exclusive competence of State authorities is incorrect. The organizational and procedural autonomy of the Member States is not absolute and does not keep cases from the influence of EU law. This is especially evident in relation to judicial procedures. It is enough to point out the cooperation of the EU Member States in criminal and civil matters. Moreover, while applying judicial procedures, national courts are bound by the principle of equivalence and effectiveness in cases with EU law elements (e.g. Arcor, C-422/04)

It is significant that arguing about the system and organization of the national judiciary, the Prosecutor General does not mention in one word the independence of the courts, the irremovability of judges and their accountability to disciplinary authorities. These are undoubtedly elements of the system and organization of the national judiciary falling within the scope of EU law (Article 2 TEU, Article 19 TEU, Article 47 of the CFR), which was emphasized in the latest jurisprudence of the Court of Justice (e.g. Associação Sindical dos Juízes Portugueses, C-64/16; Achmea, C-284/16; LM, C-216/18 PPU). The Prosecutor General omits this case law entirely. Therefore, his argument concerning the inadmissibility of preliminary references concerning system, form and organization of the judiciary as well as proceedings before judicial authorities, does not hold water.

Triggering the proceedings before the Constitutional Tribunal concerning Article 267 TFEU should be critically assessed in view of EU law. National courts, including constitutional courts, have no competence to provide final interpretation of Article 267 TFEU in an autonomous manner and independent from interpretation given by the CJEU. Such an interpretation by the Constitutional Tribunal would be inevitable if it were to adjudicate on the compliance of Article 267 TFEU with the Polish Constitution. However, such a solution would be unacceptable under EU law. It is the CJEU that has the power to make a definitive and binding interpretation of the Treaty. Allowing the national courts to set aside provisions of the Treaty would be incompatible with the principle of uniform application of EU law in all Member States.

Apocalypse Tomorrow?

It is worth considering the consequences of the future judgment of the Constitutional Tribunal in case it accepts the arguments presented by the Prosecutor General.

Firstly, state authorities could refuse to recognize the judgements issued by the CJEU in response to the preliminary questions referred by Polish courts since August 2018. In consequence, judgments concerning the system, form and organization of the judiciary would not have any legal effect in Poland to the extent that they are incompatible with the Constitution. They would not impose the need to change Polish law, nor can they be taken into account when issuing judgments by national courts.

Secondly, in the future, Polish authorities could decide with a large margin of discretion which judgments of the CJEU fall within the scope of the matters covered by the judgment issued by the Constitutional Tribunal and draw the consequences outlined above. As a result, Article 267 TFEU would be treated by the Polish authorities as binding only in a limited, not clearly defined scope.

Thirdly, Polish courts referring preliminary questions relating to the judiciary, would have to take into account that their actions would be treated as violations of the Constitution. Undoubtedly, this would not be an obstacle in view of EU law to refer new cases to the CJEU (e.g. Melki and Abdeli, C-188/10; A v. B, C-112/13; Križan, C-416/10), but judgments issued in response to preliminary references could not be recognized in Poland. In turn, judges who refer preliminary questions and subsequently issue respective judgments could face disciplinary proceedings alleging the breach of the Constitution.

Fourthly, the discussed future judgment of the Constitutional Tribunal would result in a new situation of Poland as a Member State. One of the most important provisions of primary EU law, having a great contribution in the development of this area of law, would be applied in this Member State in a narrower scope than in others. This would amount to the departure from the principle of uniform application of EU law in all Member States. As a result, Poland would find itself in a situation of a Member State permanently violating not only Article 267 TFEU, but also the principle of loyal cooperation expressed in Article 4 paragraph 3 TEU. The inevitable consequence of such state of affairs would be a proceeding based on Article 258 TFEU, followed by the judgment issued by the CJEU declaring that Poland has breached its obligations arising from the Treaties.

It is difficult to imagine that the situation described above could be tolerated by the EU. It may lead to a serious breach of the values specified in Article 2 TEU and the initiation of the proceedings referred to in Article 7 TEU.

The vision presented above may seem apocalyptic. Unfortunately, it is an entirely probable scenario if the Polish Constitutional Tribunal were to issue a judgment declaring the incompatibility of Article  267 TFEU with the Constitution in the scope contested by the Prosecutor General. He is aware of the consequences of his application, although probably not in all details. Nevertheless, the Prosecutor General is guided by political motives. Perhaps the situation will change in the light of one recent event: the interim order of the CJEU (Commission v. Poland, C-619/18). This should force the state authorities to think about their future policy towards the EU in general.

What Being Left Behind by the Rule of Law Feels Like, Part II

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This the second of two posts on the rule of law in Hungary. Part I is here.

As this litany of procedures suggests so far European constitutional actors must have done their best: they made it clear to the Hungarian government that what it was doing, and especially how it was doing it, violates the rule of law. In doing so, they repeated each other’s words and deeds without much variation. As every one of them chimed in, the list of contributions got longer, though not thicker. Now all eyes are on the CJEU. The case before it, as brought by the Commission is not about the rule of law as a founding value. Rather, it is presented as an issue about the freedom of services and the freedom of enterprise. While these claims are in the language of the four freedoms (i.e. the bread and butter of the Union), when put like this, the matter appears a tad bit removed from the rule of law as a bedrock principle.

Is this what the rule of law is meant to be about in the EU?

If one is to look at the record of the Commission and the CJEU on the subject more closely, there is surprisingly little there, apart from an emphasis on compliance with legal rules and a stubborn insistence on continued dialogue on the rule of law,

Consider the recent judgment of the CJEU in late July of 2018 in L.M., the case about a European Arrest Warrant where the Irish High Court asked the CJEU whether it was a good idea to extradite a Polish national to Polish courts for a drug trial after the Commission had triggered Article 7(1) TEU with regard to Poland due to its recent judicial reforms. The Irish judge was concerned about the independence of the Polish judiciary and what that might entail for the fundamental rights of a Polish national, who also happens to be a European citizen. The case had the potential of halting Poland at that much-lamented European red line. Instead, the CJEU told the Irish High Court to go and find it out for herself, in the course of a dialogue with the Polish court that requested the extradition, and if needed, with the Polish authorities.

This happened only a few weeks after the Commission announced an infringement action against Poland, on July 2, 2018, concerning the recently adopted amendment of the Polish Supreme Court that introduced a forced early retirement plan for the top Polish court. According to the plan 27 of the 72 judges of the Supreme Court would have to leave immediately, including the First President of the Supreme Court. Judges who wished to continue serving on needed to seek individual exemptions from the President of the Republic.

On August 2, 2018 the Polish Supreme Court turned to the CJEU with an unprecedented preliminary ruling request to halt the enforcement of the new law, essentially to stop its own dismantling. On October 19, 2018 the CJEU did issue an injunction to do just that. It was done not upon the preliminary ruling request of the Polish Supreme Court, but upon the Commission’s infringement action launched with the Court on October 2, 2018.

It is widely believed that the Polish government decided to comply with the injunction not because it changed its mind about its judicial reform plans, but to please its largely pro-EU citizens before the upcoming local elections of the weekend. By the time the CJEU rendered its injunction about the Supreme Court act, the Polish government expressed its views about the European legal order in a clear voice: it turned to the Polish Constitutional Tribunal to ask whether a preliminary ruling under Article 267 TFEU can reach beyond EU law, into the domain of national law. That the packed Constitutional Tribunal is expected to decide in favour of the government goes without saying. Rather, the question is what should happen to the judgment of the Constitutional Tribunal, once rendered: should it become a conversation piece in the European constitutional dialogue in the same manner as a judgment from the German Constitutional Court would in a similar matter?

And what is this dialogue, fostered by the European Commission and the CJEU, about anyway?

For the time being, it does not amount to more than a (not too polite) conversation for the sake of a conversation. Apparently this is how the rule of law is used by the EU in its external relations: it is a tool to foster cooperation and build trust, without awkward moments that a project with expectations and benchmarks would entail. The same approach, however, has radically different stakes and consequences inside the Union.

Even if European institutions are reluctant to give content to the rule of law (to make it an institutional ideal), due to the mutual trust and sincere cooperation (Article 4(3) TEU) expected from the member states, whatever is said by one of them in the course of this conversation affects all others. For now the internal dialogue on the rule of law is a back and forth between increasingly reluctant European institutions and national governments that are eager to boast about their own national constitutional identities to the detriment of values and ideals that are presumed to be shared within the EU. By now it must be clear to all that the Hungarian and Polish governments do have a plan that is built on staying within the Union, and changing it from the inside, (ab)using its institutions, resources and weaknesses to their own benefit. Every round and every step where European institutions falter in preventing moves to this effect is an opportunity for the offending member states to pursue their strategies even further.

The Hungarian government reacted to CEU’s decision to leave in a predictable manner. Instead of addressing the issue of the international agreement that the government is meant to sign as per a legal requirement under Hungarian law, various voices of the inner circle took to the press to say that the government has not done a thing to push CEU out, there are no investigation targeting the University, nor is the government intending to enforce the new legal rules against CEU. Accordingly, as the Hungarian government see it: CEU is leaving Budapest, as a matter of its free choice, and not due to government action. For flavour, they added that CEU’s decision was just another shenanigan by George Soros, attacking the government by ulterior means. So was also the solidarity protest convened by a small opposition party, Momentum in the evening of October 26, 2018.

The fate of CEU was put in its broader European context by French President Macron at a press conference in Bratislava. When asked by a journalist about the fate of CEU he vowed to contest the those who want to roll back justice, undermine free journalism or question the place of universities as these are the things “that make us European”adding that "I do not believe in those who want to divide Europe.”

Sounds like a campaign promise ahead of the European parliamentary elections of May 2019.

As the saga of CEU demonstrates, the European dialogue on the rule of law has consequences on the ground for ordinary subjects of the law who in and of themselves can do little to defend themselves from the whims of national governments. Until the rule of law is made to take over, such whims will continue to be turned into legal rules and formal legality – rule by law – will continue to reign. The rule of law, however, cannot take over of its own: it needs its guardians to act on its behalf. A piece of Sacher torte and a cup of mélange certainly make for a pleasant distraction while one is condemned to watching from the sidelines. Still, they cannot sooth the seeping fear that the rule of law may have been but a fool’s errand in Europe after all.

This post has previously been published on the IACL blog and is republished here with kind permission. 

Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism

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If The Decline and Fall of the European Union is ever written, historians will conclude that the EU’s two key intergovernmental institutions – the European Council and the Council – should bear the greatest responsibility for the EU’s demise. As illiberal rot spread throughout the Union, eating away first at one government and then at another with centralizing autocrats destroying the rule of law in plain sight, history will show that both the European Council and the Council of Ministers failed to act and, in the end, deferred to national autonomy instead of defending the Union’s fundamental values. The EU is facing an existential crisis because Member governments refuse to recognize that the common values are the cornerstones of their common project. Democracy, human rights and the rule of law are more than simply normative aspirations; they are in fact central to the operation of the European Union. If the EU fails to defend its common values, the EU won’t merely fail as a normative project, it will cease to function. But the Council appears unable to act to defend the rule of law and democracy, while the European Council has been doing its best to look the other way.

Regrettably, we now need to add the Council’s Legal Service (hereinafter: CLS) to the list of key EU actors that seem intent on ignoring the existential threat to the Union posed by the spreading rule of law rot amongst EU member governments. In a (non-public) opinion on the proposed regulation of the Commission to create rule of law conditionality in the multi-annual financial framework (MFF) adopted on 25 October 2018 (and first reported here), the CLS indeed put forward multiple unpersuasive legal arguments to claim that the Commission’s proposal as it currently stands cannot be adopted. In particular, the CLS is of the view that the conditionality regime envisaged in the Commission’s proposal “cannot be regarded as independent or autonomous from the procedure laid down in Article 7 TEU.”

While the MFF may seem like a highly technical subject, budgets are the best indicators of what organizations value. The European Structural and Investment Funds (ESIFs) are the monetary transfers that redistribute funds across the Union in order to reduce disparities between regions and to promote economic and social cohesion. The Union’s established autocracy and its most clearly nascent one – Hungary and Poland – are, respectively, the largest per capita and the largest absolute recipients of ESIFs. As EU funds keep flowing to these two countries, Viktor Orbán and Jaroslav Kaczynski are not only emboldened, but also subsidized, as they undermine the basic moral and legal foundations of the EU through, for instance, their systemic attempts to annihilate judicial independence. This is why a number of key actors in the EU – for example, the European Parliament, the German government, and European Commissioner for Justice Vera Jourová – have been wondering aloud why the EU goes on paying for autocracies in the EU’s midst. Gradually the debate has centered on how to stop the flow of funds to Hungary and Poland – and eventually to any state that might head down that path – so that at least EU funds are not used to undermine EU values.

The Commission’s proposed regulation would allow it to suspend or redirect funds to a Member State on the grounds that it has a “generalised deficiency as regards the rule of law” (in the words of the draft regulation). According to the CLS, however, the Commission’s proposal needs a massive overhaul if it is to comply with the Treaties. The CLS helpfully and correctly noted that the Commission is not in principle barred from attaching conditionalities to the distribution of EU funds – and pointed out that indeed such conditionalities already exist in a number of different legal authorities established as EU secondary law. The CLS opinion also agreed that Article 322(1)(a) TFEU “is the correct legal basis for the establishment of a genuine conditionality regime of a general character.”

But the CLS also argued that the Commission’s proposal to make EU funds conditional on observing the rule of law was not compatible with the Treaties because withholding EU funds in this case would (allegedly) tread on the territory covered by Article 7 TEU. In the view of the CLS, Article 7 is the lex specialis for Article 2 TEU and no other legal authority can cover the same ground. The CLS also objected that, by failing to put Member States on more precise notice about just what would get a state into trouble under the proposed regulation and why those precise weaknesses in the rule of law violations would necessarily lead a state to mismanage EU funds or threaten the financial interests of the EU, the Commission did not use conditionality mechanisms appropriately.

The real purpose of the CLS opinion was clear: It aimed to establish that while the Commission was well within its power to prevent EU funds from being misspent, the Commission was powerless to prevent the basic values of the EU from being subverted. That task, instead, remained the sole preserve of the Council.

In the rest of this post, we will explore what the CLS said and why they got it so wrong.

1. Article 7 TEU as the Only Enforcement Mechanism for Article 2 TEU

According to the CLS, Article 7 TEU is the only mechanism available under the Treaties for enforcing the values of Article 2 TEU. Moreover, says the CLS, Article 7 is a complete and comprehensive procedure to which nothing can be added. Agreeing with an earlier opinion of the Commission that the invocation of Article 7 is not limited to the scope of EU law, the CLS used this fact to bolster its argument that no other sanctioning mechanism can be used to ensure Member States comply with Article 2. Because of the wide sweep of Article 7 and the potentially legally significant consequences for a Member State subjected to Article 7 sanctions, the CLS argued that the Commission may not use budget conditionality to circumvent the safeguards of multi-institutional and supermajority approval built into Article 7: “Secondary legislation may not amend, supplement or have the effect of circumventing the procedure envisaged in Article 7 TEU” (para. 13).

The CLS is mistaken about the nature of Article 7 in many ways. First, Article 7 cannot be considered a single procedure: it instead provides for two procedures to deal with two different factual situations (risk of a breach and a breach) and there is no obligation, for instance, to activate the preventive procedure laid down in Article 7(1) before triggering the sanctioning procedure laid down in Article 7(2) and (3).

More decisively, the CLS is deeply mistaken in its insistence that Article 7 is the only way to enforce Article 2. Consider a helpful metaphor. If your city has a fire department to put out fires that might destroy not just your house, but also the houses of your neighbors (as Article 7 was designed not only to prevent damage to the offending Member State, but also to its neighbors in the EU), then does this mean that ONLY the fire department may be called when there is a fire? Certainly not. We might take the establishment of a fire department as a sign that it is so important to control fires that the state has a special responsibility in this regard, but this does not mean that other actors who detect the outbreak of a fire are prohibited from intervening to squelch the flames before they spread. The fire department is the last and most powerful resort, not the first and only one when it comes to preventing a spreading threat. Similarly with Article 7. If values violations can be stopped before they spread and destroy the neighborhood, then at a minimum the institutions charged with enforcing EU law should try to stop the conflagration before it is necessary to call on the Article 7 fire department. Article 7 is there when all else fails. But all else will fail if others don’t share the responsibility for putting out fires when they start.

In fact, the ECJ has already subscribed to the fire department model of Article 7. Having pledged to uphold the Article 2 values when they joined the Union, all Member States have obligations to do what they can to uphold these values – including putting adherence to values above and beyond following the black letter of secondary law. Moreover, it is not just Member States but their component institutions that share this obligation. It is hard to make sense of the ECJ’s judgments in Aranyosi and Celmer in any other light. In both cases, referring judges were told that they must avoid sending a person to another Member State if they believe that the person’s rights would be put at risk with the transfer. Values – including the protection of rights guaranteed in Article 2 – must come above compliance with the European Arrest Warrant. These ECJ decisions empower every single judge to uphold EU values by making exceptions to the general obligations of EU secondary law. Why should it be any different for the institutions of the Union which, after all, also have obligations to uphold the basic values of Article 2? Surely if any national judge can interpret EU law in light of EU values and set aside ordinary legal obligations to ensure the realization of those values, the Commission should – indeed must – be able to do so too.

In our view, all EU institutions must commit to and act upon preserving the values of the Union. For the CLS to insist that the Commission is violating the Treaties when it tries to protect EU values is the worst sort of legalism. (Unfortunately, this is not the first time this has happened: in 2014, the CLS argued that the Commission’s 2014 “pre-Article 7 procedure” would not be “compatible with the principle of conferral which governs the competences of the institutions of the Union.” This opinion has however been almost unanimously criticised for its weak reasoning by Professors Baratta; Bogdandy et al; Besselink; Hillion; Kochenov & Pech,Oliver and Stefanelli among others). To continue the fire department metaphor: if no one can legally do anything to fight fires because only the fire department has this power, the neighborhood will burn to the ground before the fire is contained. In our present context, the rule of law is seriously threatened in two Member States because the signature element of the rule of law is the independence of the judiciary, and the governments of Poland and Hungary have fired judges, packed courts with political loyalists, limited the jurisdiction of courts, and established disciplinary procedures for judges when those judges fight the government’s attempts to control them. It is hard to imagine a more comprehensive destruction of the rule of law and a bigger threat to the integrity of the EU, which relies on law above all else.

This suggests another reason why Article 7 cannot be the only mechanism for enforcing Article 2. Under Article 7(2), a unanimous agreement of all Member States save the one in question is necessary for sanctions to follow. But if there are two Member States in violation of EU’s basic values, does this mean that both states get a free pass – as if there is a bulk discount for norm violation? As one of us has argued, the principle of effet utile should allow the Article 7(2) voting procedure to exclude any Member State that has been sanctioned under Article 7(1) so that no fellow-traveler vetoes are permitted. But, of course, it would be far better if any Member State headed in that direction could be diverted back to the rule of law before the damage from its conduct spread to other states. If, as the CLS insists, Article 7 must be interpreted literally as the only authority to put out fires in the EU, then the fact that there are two fires burning at once means that no fire trucks will be dispatched at all. Article 7 has to be understood as one way to solve a serious problem in the EU, not the only way to address it.

It simply does not follow from the language of Article 7 that the other institutions of the EU cannot or should not work in concert to prevent rule of law violations from occurring in the first place or from spreading when they do. In fact, the CLS opinion almost admits as much. It notes that the Commission can, of course, bring infringement actions against Member States for violating EU law under Article 258 TFEU and that Member States can bring actions against each other under Article 259 TFEU as well. Both sorts of actions can be accompanied by serious sanctions for non-compliance with ECJ judgments under Article 260 TFEU. If some potential infringement might bear on the rule of law, does that mean that the Commission or another Member State is barred from bringing the infringement action because Article 7 is lex specialis for Article 2? The logic of the CLS opinion seems to suggest as much. But clearly that would be a preposterous result.

The CLS is moving in the opposite direction of other EU institutions, where real challenges to Article 2 value have been met with responses that make Article 2 more rather than less enforceable outside the framework of Article 7. While commentators had once generally taken as common wisdom that Article 2 values could not be enforced directly by the ECJ, the ECJ itself has already disabused commentators of that notion. In the Portuguese judges’ case decided in February 2018, the ECJ invoked Article 19(1) TEU together with Article 2 TEU to arrive at the logical conclusion that each Member State had a direct obligation under EU law to guarantee the independence of its national judiciary. As the ECJ said in that case: “Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals.”

The legitimate spread of Article 2 enforcement across the institutions of the EU did not stop with the ECJ’s invocation of it. Having previously eschewed referring to basic values in its infringement actions, the Commission promptly took the hint and brought an infringement action against Poland for violating Article 19(1) through its systemic attempt to annihilate the independence of the Polish judiciary – and when Polish authorities refused to halt the purge of Poland’s Supreme Court, the Commission returned to the ECJ to ask for interim measures to ensure that the independent Supreme Court judges could remain in their jobs until the matter was judicially settled. The ECJ agreed and imposed interim measures, at last staying the hand of the Polish government before the judicial purge was completed. If the CLS believes that only way to enforce the values of Article 2 is through Article 7, then both the ECJ and the Commission have already and profoundly disagreed.

In a previous opinion analyzing the Commission’s 2014 Rule of Law Framework, as previously noted, the CLS had similarly opined that Article 7 was a complete and self-contained system for enforcing Article 2 and therefore this pre-Article 7 procedure exceeded the Commission’s mandate. Even though the Commission said that the goal was to try to bring the Member State back into line before asking the Council and the Parliament to trigger Article 7, as the Treaties give the Commission the power to do under Article 7(1), the CLS found the Rule of Law Framework ultra vires. Ignoring the negative opinion of the CLS, the Commission used the Rule of Law Framework with Poland anyway, up to the point when the Commission issued its Reasoned Proposal to the Council on triggering Article 7 TEU. Given that the Council had repeatedly asked the Commission to report on the pre-Article 7 dialogue it was having with Poland in the run-up to issuing this proposal, it can be safely concluded that the Council also ignored the CLS opinion on the Commission’s Rule of Law Framework and found the Commission’s framework both legal and appropriate. Now that the ECJ and the Commission have both endorsed enforcing Article 2 values through infringement actions and the Commission has used its Rule of Law Framework to propose a formal warning to a Member State, the CLS is clearly mistaken in its rigid view that only the precise procedures given in Article 7 can enforce the values in Article 2. We hope that the Council will again ignore this flawed opinion of the CLS and approve the Commission’s proposed regulation rather than looking for every possible legalistic excuse to torpedo the efforts of those trying to uphold Article 2 values in the face of a mounting authoritarian threat.

2. The limits of budget conditionality

Once the CLS concluded that the Commission had no business enforcing the values of Article 2, it then proceeded to scrutinize the proposed regulation for signs that the Commission was trying to do just that. The CLS opinion exudes suspicion about the intentions behind the Commission’s proposal.

First, the CLS cast doubt on the Commission’s motivation, noting that it had been drafted in response to a parliamentary request, backed by requests from the general public, to “take actions to protect the rule of law” (emphasis in original at para. 26). That suggested to the CLS that the real reason behind the proposed regulation was not to safeguard efficient financial management (something the CLS acknowledged could be an appropriate justification for budget conditionality) but instead to enforce Article 2 (which, as we have seen, the CLS opined that the Commission did not have the power to do).

Relatedly, the CLS argued that the Commission had not demonstrated that there was any link between compliance with the rule of law and “an efficient implementation of the Union budget, preservation of the financial interests of the Union and compliance with principles of sound financial management” (para. 27). As the CLS explained, connections between proper use of EU funds and the rule of law are neither necessary nor sufficient because a) problems with financial management can occur for reasons other than rule of law problems and b) rule of law problems don’t always translate into financial management concerns. This is specious reasoning. The fact that not all rule of law problems lead to the misuse of EU funds and that not all misuse of EU funds stems from rule of law problems does nothing to undermine the justifications for the proposal put forward by the Commission. The proposed regulation (Article 3) only calls for measures (such as the suspension of payments) to be taken, “where a generalised deficiency as regards the rule of law in a Member State affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union.” In other words, the Commission proposal calls for funds to be suspended only when rule of law deficiencies do in fact undermine financial management and put the EU’s financial interests at risk.

Implying that a Member State without the rule of law could still be a reasonable steward of EU funds, the CLS called upon the Commission to make a more detailed and precise argument about just how rule of law troubles could possibly lead to financial mismanagement. The assertion that the absence of rule of law would not necessarily interfere with the sound use of EU funding is, quite simply, preposterous. Quite to the contrary, there can be no guarantee of sound financial management without the rule of law.

If a country’s rule of law institutions have been captured so that they can no longer make independent decisions, then how on earth can a country be trusted to spend funds in an accountable way? If the judges do what their political masters say and police investigators are capable of finding only the crimes committed by the opposition, then what is to stop the government from putting EU funds into the pockets of friends and family? Indeed, for these reasons, Israel Butler and two of us have argued elsewhere that – even without the Commission’s new proposal – the current Common Provisions Regulation already allows the Commission to suspend European Structural and Investment Funds (ESIFs) where a Member State does not uphold the rule of law. The Commission now seeks explicit authorization to suspend ESIFs for rule of law violations which precisely puts all Member States on notice that an implicit power that the Commission already has will be explicitly used for this purpose.

One has to look no farther than the recent headlines in the tiny sliver of the Hungarian press that remains outside of government control to see a clear example. The Hungarian police just dropped the investigation into the government contracts that awarded EU funds to the prime minister’s son-in-law, even though the EU’s anti-fraud agency OLAF provided overwhelming evidence that the contracts had been awarded in an improper manner. Orbán’s police exonerated the prime minister’s son-in-law even when they had been handed overwhelming evidence to the contrary by OLAF!

The rule of law is the backbone of any system of even-handed and neutral state administration. Once every administrator, investigator, judge and auditor is a political loyalist whose job is contingent on ensuring that his or her political masters get whatever they want, effective financial management simply cannot occur.

Finally, the CLS objected that the Commission had not explained precisely what would count as a violation of the rule of law so that Member States could adjust accordingly. While it is not unusual to see the argument that the rule of law would be a broad and vague concept, it is a rather precisely defined term as it is used by EU institutions. As the Commission explained when it announced its rule of law framework, the rule of law has a principled minimum core:

Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law.

The Venice Commission even has a helpful checklist that explains in more detail what each of these concepts means more precisely. While there may be some imprecision around the edges of these concepts, the core ideas are crystal clear.

In Hungary and Poland, for instance, legal “reforms” have repeatedly breached the most basic understanding of the most basic components of the rule of law. In Hungary, judges can be disciplined by a political official who operates under virtually no standards. In Poland, any judicial decision from the last 25 years can be reopened and re-decided by new judges newly appointed to a new kangaroo council of the judiciary. In both Hungary and Poland, sitting judges have been fired under the guise of political renovation, and new judges have been appointed from among the ranks of party loyalists or new converts to the cause looking for a rapid elevation to senior ranks, judges who understand that their job is to insulate government officials from any negative consequences for their actions. Not surprisingly, public procurement, including procurement with EU funds, is riddled with special favors to government supporters in both Hungary and Poland – and the impunity with which government officials act is in no small measure due to the fact that, with captured courts and audit offices, they will never have to pay a price. If the CLS truly believes that there is no connection between the rule of law and the ability to spend EU funds properly, it does not know what the rule of law means.

The Council – and the CLS in particular – never misses an opportunity to miss an opportunity to defend the fundamental values that form the very raison d’être of the European Union. Instead, the Council seems determined to defer to Member State governments, even if they engage in actions so autocratic – from judicial capture, to election rigging, to attacks on independent civil society – that they make a mockery of the EU as a union of values. It would be bad enough if the Council were merely guilty of inaction. However, with this opinion, the CLS is advising the Council to do something even worse: to actually prevent other institutions of the EU from doing their job to uphold and defend the set of common values on which the EU is based. The progressive destruction of law by arbitrariness – rule of law rot – will eventually undermine the entire European project if it is not caught and treated. If the Council is unwilling to lead, it should at least not block other EU institutions when they defend the Union from the autocrats that threaten it.

Europe’s Rule of Law Dialogues: Process With No End in Sight

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Europe’s dialogues on the rule of law seem to be going really well lately. Since the Article 7 TEU procedures were launched in earnest against Poland and then Hungary, the feisty national governments appear to heed to the strong hints of European constitutional actors. So much so that one may be inclined to believe in the power of conversation about fundamentals: despite their very special political ways, these unruly national governments may be ready to return to the fold.

After all, on November 21, 2018 the Polish government decided to retreat on forcing the judges of the Supreme Court into early retirement. The announcement followed the hearing before the CJEU in the infringement case (C-619/18 R Commission v. Poland), fast-tracked upon the Commission’s successful request for an interim injunction in October 2018. On November 6, 2018 the Hungarian Constitutional Court invalidated the regime of disability assistance as a violation of international human rights obligations, echoing earlier judgments of the European Court of Human Rights. Not bad for a constitutional court working with a majority of FIDESz appointees.

Is this the kind of news guardians of the rule of law hope for in troubled times? On closer inspection: not exactly.

On the surface the Polish Government’s decision to give up on the early retirement of Supreme Court judges sounds like a major victory for the Commission. The amendment was introduced in the summer of 2018, almost as a random afterthought, to complement a complex and much-criticized judicial reform package. At the time the Article 7 TEU process was already before the Council, in a somewhat dormant state, so the Commission tackled the amendment in a separate infringement action. The Commission moved not long after the Supreme Court itself turned to the CJEU with a courageous, though most unusual preliminary ruling request on its own fate.

Right after the CJEU hearing in November 2018 the Polish Ministry of Foreign Affairs issued a statement confirming the Government’s support for the measure and insisting that “the Commission incorrectly weighed up the interests of the parties by failing to allow for the need to ensure the uninterrupted functioning of the Supreme Court, independence of its Judges, and legal certainty of the parties to proceedings before this Court.” This sounded more like much ado for nothing, as soon as the interim injunction landed in October 2018, the initially defiant tone of the authorities was muted by Zbigniew Ziobro, the Minister of Justice saying that Poland was going to give effect to the injunction.

The Polish government’s retreat is hardly an unexpected response to European constitutional actors in the course of a dialogue about the rule of law. Instead, every step of this charade is part of a calculated political strategy to handle the European dialogue. On October 21, 2018 PiS was going into local elections with an electorate, an estimated 70 per cent of which supports EU membership. When Adam Bielan, the deputy speaker of the Senate (and a senior Kaczyński aide) hinted at another round of judicial reforms in the making, he did not miss the opportunity to note that the timing of the case leaves one with the impression that certain high European constitutional actors were seeking to interfere with the recent local elections.

The more recent retreat on the Supreme Court reform is also curiously timed. Just days before, on November 10, 2018 on the 100th anniversary of Polish independence, in a speech in Lodz Donald Tusk denounced the current Polish governing elite as “contemporary Bolsheviks” who threaten the nation’s independence, but can be defeated. Mr Tusk is not only a holder of a high EU office and a former Polish Prime Minister, but is also rumored to be in the race for the Polish presidency in 2020.

That the Polish government is keen to address the concerns (or at least the sentiments) of its electorate is certainly good news for supporters of constitutional democracy in Poland. The fact, however, remains that when the Polish government responds favorably to the rule of law concerns of European constitutional actors, it does so for reasons that have little to do with the virtues of the European rule of law dialogue itself. This should be reason for serious concern for the chaperones of the rule of law in Europe.

The Commission’s proposal to tie certain EU funds to rule of law performance ahead of the adoption of the next MFF for 2021-27 is clearly inspired by the behavior of the usual suspects. Despite being under constant criticism about its rule of law performance, the Hungarian government has been a trusted recipient of EU funds. As the Commission’s proposal is on the table – even if it is contested by the Council’s Legal Service – even the Hungarian government found it best to pay a nod to at least some international obligations: the judgment of the Constitutional Court does exactly that, and not much more.

Let’s not forget: the Hungarian government has been a loud opponent of the European Public Prosecutor’s Office, invoking its national sovereignty to fend off European intrusion at every step of the process, starting from the parliamentary scrutiny phase back in 2014. With the moderate success of European actors (OLAF and co.) to tackle the misuse of EU funds in Hungary, the issue is kept alive by the opposition MPs and civil society organizations. This appears to be a pretty lonely fight: the infringement action concerning the law demonizing NGOs receiving foreign funding has been pending before the CJEU since December 2017. While we wait, at least do as much for the rule of law that we do not start to wonder about starting a conversation about protecting constitutional identity in Europe.

Instead, let’s reflect on the consequences of rule of law compliance taking a dialogic format in the EU. It is true that after the hearing before the CJEU the Polish government may have taken back its proposal to send Supreme Court justices into early retirement. One may also assume that the Polish government was well-aware that the measure is a blatant violation of EU law: this is exactly what the CJEU found about a similar Hungarian measure in 2012. Thus, when the Polish government added the early retirement requirement of Supreme Court judges to its judicial reform package – seemingly as an afterthought – it was essentially making a move it knew it was going to have to retract at one point. And it did so at a time when it served its interests best: the Commission can now claim that the rule of law dialogue works after all, while Poland gets to keep the rest of its highly problematic judicial reform in place without having to compromise on the features that turn the judiciary into a Soviet style apparatus (to paraphrase the Venice Commission).

This stylized, dialogue-based approach to defending the rule of law in its current form appears to serve strategic violators of the rule of law – like the current Polish and Hungarian governments – better than its defenders.

The cause for concern is not that violators of the rule of law are strategic political actors or that they are disingenuous. Rather, the real problem is the unspoken premise on the basis of which defenders of the rule of law are more and more inclined to accept these developments as the very features of the EU’s rule of law safeguards. This acceptance is based on the flawed premise that so long as a procedure is in place one cannot really do more to defend the rule of law.

Formalized processes themselves do not yield results: procedural rules structure interactions, set the pace of exchanges, screen out certain proposals and allow for the correction of mistakes. Yet, after all the pacing, combing and retouching the outcome will not be produced by the process itself: it takes the actors to pursue a process to a particular end (like safeguarding the rule of law). For the time being European constitutional actors seem to be more interested in having a dialogue about the rule of law with offending member states and with each other than with taking action to actually defend it. This may be a sensible strategy in external relations, it is certainly a curious approach under the Cooperation and Verification Mechanism (CVM) and is simply self-defeating at a time when the very same European actors admittedly sense that the founding values of the Union are at “a clear risk of a serious breach” in certain member states.

Episode 5 of the Celmer Saga – The Irish High Court Holds Back

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When we last left the now notorious and long-running Celmer saga, the High Court of Ireland in its fourth outing had held that it needed to ultimately determine if there were substantial grounds for believing that Mr Celmer was at real risk of a breach of his fundamental right to an independent tribunal. To do that, the Court had to elicit additional information from the Polish judicial authorities and enter into dialogue with them in order to obtain further information about this risk. On 19 November 2018, in what now appears to be the final outing before the High Court of Ireland, subject to any appeals that may flow from the decision, Donnelly J gave her fifth judgment and concluded that the real risk of a flagrant denial of justice has not been established by Mr Celmer and ordered that he be surrendered on foot of the European Arrest Warrants (EAWs) issued against him. Given that Donnelly J had, as a matter of fact, initially found that there were ‘breaches of the common value of the rule of law’ in Minister for Justice and Equality v Celmer (No 1) [2018] IEHC 119, this came as some surprise.

The Legal Tests

As set out in her judgment, Donnelly J had requested further information from the issuing judicial authorities in Poland pursuant to Article 15 of Council Framework Decision 2002/584/JHA. The issuing judicial authority was asked that they would comment specifically on a number of contentious issues, including the general situation of the rule of law in Poland, the removal of presidents and vice-presidents of the Ordinary Courts in general and specifically, the remarks of the Deputy Minister for Justice relating to the Respondent, and what effect, if any, the removal of the court presidents might have on the trial of Mr Celmer. On this basis, Donnelly J had to make a factual determination on all the information and evidence before her, in accordance with the principles set out in Case C-216/18 PPU LM.

Initially, Donnelly J dealt with some housekeeping matters, of interest in the practical implementation of LM, such as the relevant legal and evidential tests to be applied when establishing the extent and degree of the denial of a fair trial. She held that the applicable standard was that of a flagrant denial of justice, as set out in LM and that the burden of proof in establishing substantial or reasonable grounds giving rise to a real risk rests on the Respondent.  Given the primacy of mutual trust within the Framework Decision and the CJEU’s conclusion that it is only in exceptional cases that a check can be made on whether fundamental rights have been breached, this was a high threshold. The fundamental overarching question to be factually determined was if systemic deficiencies in the common values of the rule of law arising from a lack of independence of the judiciary are found to exist and if – following a specific and precise assessment into the particular circumstances of the case – there are substantial grounds for believing that the Respondent would be at risk of an unfair trial.

Systemic Deficiencies

Donnelly J began by examining whether systemic deficiencies in and of themselves could amount to a flagrant denial of justice. Specifically, she found that it was clear that the CJEU in LM expressly did not accept that a finding of systemic and generalised breaches was sufficient to establish that the individual concerned will run the risk of a breach of the essence of the fundamental right to a fair trial. This was copper-fastened in her view by the CJEU’s statement that even if the deficiencies are found to operate systemically, the executing judicial authority was still required to assess specifically and precisely whether there were substantial grounds for believing that the person in question will run a real risk of breach of his fundamental right to a fair trial. Both Donnelly J’s and the CJEU’s reasoning here seems coherent – as Donnelly J set out the test is one of the essence of the fundamental right to a fair trial. In circumstances where such systemic and generalised breaches were so egregious, it would be likely an individual could establish they were individually affected. Where this is more nuanced and less clear, given the threshold of mutual trust between Member States, a precise and individual assessment must be mandated.

Donnelly J then proceeded to examine the submissions and additional information provided by the issuing authority. Most interesting and marked were the contrasting replies from the issuing authorities, from President of the Warsaw Regional Court Judge Joanna Bitner and from Judge Piotr Gaciarek, named on the warrant issued by the Warsaw Regional Court as the representative of the issuing judicial authority. There is a clear dispute between Judges Bitner and Gacierek as to who is to represent the Warsaw issuing authority, and, as Donnelly J pithily notes, the dispute only highlights the considerable tensions that the recent legislative changes have wrought amongst the Polish judiciary. In short, Judge Bitner provides the statist position, submitting that amongst other points, there is no risk of a violation by Polish courts of the guarantee of a fair trial. On the other hand, Judge Gaciarek asserts that it is not true that there are no risks for independence of judges and courts in Poland and his concerns mirror those of the EU Commission.

Specific and Precise Assessment

With these considerations in mind, Donnelly J finally came to deciding whether the Respondent had met the threshold of the test set out in LM. First, she concluded that in light of evidence before her, there was a real risk of the fundamental right to a fair trial being breached,  based on the lack of independence of the courts of Poland on account of systemic or generalised deficiencies there. Next, she examined if the Respondent himself would face a flagrant denial of justice due to the general situation in Poland, due to the serious charges he faced, and due to the specific comments of the Deputy Minister of Justice.

In relation to the general situation in Poland, Donnelly J reiterated her initial observations on systemic and generalised risks being insufficient to ground a real risk. She further buttressed this point with reference to the absence of available qualitative or anecdotal evidence on the lack of fairness since the changes, regardless of those changes themselves. She however rejected the Respondent’s contention in relation to the nature of his charges on the same basis. Finally, she turned to the comments of the Deputy Minister of Justice, where he made prejudicial comments referring to the Respondent as “a dangerous” “criminal sought in the whole of Europe” “from a drug mafia”. This was arguably the Respondent’s strongest and most individualised argument. On the basis of the information from the Polish judiciary, Donnelly J noted that statements of public officials were not to be taken into account in the decision making process. Both Judges Butner and Garcierek had highlighted how such comments appear to be a regular occurrence In Poland “on almost a daily basis” and, according to Judge Garcierek, “should be perceived as a typical rhetoric of politicians currently in power, who build their position among voters based on illegitimate and unjust attacks on courts and judges.” However, despite this Donnelly J continued that in light of all the evidence the Deputy Minister of Justice’s comments did not give rise to a real risk that this respondent will face a flagrant denial of his right to a fair trial. It was the, somewhat perversely, normalisation of what in many jurisdictions would be considered deeply prejudicial comments that ameliorated their potential adverse effect.

What Next?

Finally, Donnelly J notes that the execution of EAWs is a matter of applying Union law and not of applying Polish law. It is the mutual trust that each Member State places in another Member State’s sharing of common values on which the EU is founded. However, the right, and indeed the duty in certain circumstances, for a court to examine whether a requested person can receive a fair trial in a Member State has been confirmed by the CJEU. And where the test in LM is met the executing judicial authorities may not be bound by the principles of mutual trust.

Possibly the most interesting statement of all was in the very last paragraph of the lengthy judgment, which may perhaps give pause for thought to the Polish authorities and the Respondent and it is worth quoting in full:

Finally, it is important to state that it is the courts of Poland and, perhaps if he were to be convicted and have that conviction upheld on appeal, the European Court of Human Rights, that will have to decide whether any trial of this respondent actually meets the Polish and ECHR standards respectively of right to a fair trial before an independent and impartial judiciary. This Court has been concerned only with whether the relevant threshold preventing surrender has been reached, in accordance with the principles laid down by the Court of Justice of the European Union. That threshold, which is a high one under the law of extradition/surrender, has not been reached on the evidence before this Court.

As noted before, and as Matteo Bonelli has written, the Irish proceedings really are only the starter, with the pending infringement actions (on the Ordinary Courts and on the Law on the Supreme Court) and the proceedings under Article 7 TEU as the main course. This decision has avoided the ensuing diplomatic fallout and the potential for EAW transfers between Poland and Ireland to grind to a halt only for now. But, as noted in her final paragraph, Donnelly J was only concerned with the high threshold set in LM on the prevention of surrender, not with whether the Respondent’s trial substantively meets the requirements of Article 6 of the ECHR. Any proceedings that the Respondent may wish to take to the European Court of Human Rights, should he be convicted, may well provide the dessert.

The judgment is compelling for a number of reasons, not least in that it averts a collision between Member States for now, but primarily for the glaring disparateness between the factual findings of the Court in relation to the rule of law in Poland initially in Celmer (No 1) and its final determination. Fairly, it is quite a faithful application of the test in LM and any critique of the case in relation to the test should more appropriately be levelled at the CJEU. The High Court decision vindicates in a way the purposely difficult standard created by the CJEU as a means of avoiding any direct confrontation between the political process envisaged under Art. 7 TEU and the role of the Court. That said, the judgment is somewhat disappointing insofar as it arguably fails to vindicate the Respondent’s fair trial rights and begs the question what exactly would it take for the threshold of the Framework to be met if the terms of the Polish judicial changes do not? Perhaps however, Donnelly J is savvy to allow this issue to be ultimately resolved by the ECtHR – this would facilitate a more neutral arms-length determination of the rule of law issues without inflaming the internal politics of the Union.


Why the EU Commission and the Polish Supreme Court Should not Withdraw their Cases from Luxembourg

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Amendment to the Supreme Court Act

On 21 November 2018 the Sejm passed an act amending the Supreme Court (SC) Act. The amendment reinstated the previous retirement age for judges who performed their duties prior to the entry into force of the SC Act of 8 December 2017 (i.e. 70 years of age). Consequently, SC judges who retired in accordance with the SC Act are reinstated to perform his or her function on the position previously held on the day of the adoption of the SC Act.

Some politicians of the Law and Justice claim that the amendment, once finally signed by the President of Poland, causes the Commission action before the Court of Justice (CJEU) to become groundless insofar as to the objections to the retirement of judges (see Case no. C-619/18).

In our opinion, there are at least several reasons against the withdrawal of Commission’s action alleging the violation of Treaties from the CJEU.

The CJEU may still pass judgments

There is no doubt that the CJEU may still pass a judgment in this case. The violation of EU law by a Member State will be assessed based on the legal status as at the lapse of the time limit specified for Poland by the Commission in a reasoned opinion. In view of the case law, it will not be possible for the CJEU to consider any further amendments (see e.g. Case no. C-389/09). In the case of the SC Act, the time limit specified in the reasoned opinion lapsed in mid-September 2018, when the provisions concerning the retirement of judges were applicable.

Why should the action not be withdrawn?

Firstly, the CJEU case law indicates correctly that even if the default has been remedied after the time-limit prescribed by that opinion, pursuit of the action still has an object. That object may consist in particular in establishing the basis of the liability that a Member State could incur towards those who acquire rights as a result of its default (see e.g. Case no. C-168/03). This may concern judges who intend to seek compensation for the conduct of authorities in respect of their retirement.

Secondly, while the act amending the SC Act is correct in terms of its effect (judges can once again pass judgments), it presumes the retirement of judges on the grounds of existing provisions of law (Art. 2 sec. 1 of the Act). This is not altered by a provision stipulating that the performance of the judges’ duties is deemed to have been uninterrupted (Art. 2 sec. 1, last sentence), since the subsequent provision provides for the possibility of "remaining retired" (Art. 2 sec. 2). The judgment of the CJEU could ultimately determine whether regulating the retirement of SC judges aged 65 or older violated the principle of irremovability of judges. Should this be the case, the SC judgment would be a declaratory document, meaning that the retirement provisions have been inapplicable since their entry into force and that SC judges have not effectively retired under these provisions (irrespective of the security and the amendment to the SC Act). In accordance with the principle of primacy, the provisions of domestic law that are in conflict with EU law are automatically ineffective upon their entry into force (see Case no. C-409/06).

Thirdly, an SC judgment stating that the provisions questioned by the Commission violated EU law would discredit the Polish Government’s argument that the amendment was introduced solely for the purpose of adjusting to inaudita altera parte provisional measures adopted by the CJEU. At this stage it is not clear whether the CJEU decides to uphold these measures in its final ruling. The completion of proceedings pending before the CJEU would guarantee, if successful, that the changes introduced by the last amendment are permanent. As we know all too well, an act can be passed in several of days and the same is true for passing an amendment. In such case, the Commission would have to conduct the entire proceedings anew. The CJEU judgment would give a clear answer as to whether the approach of the Polish legislator was appropriate. Should the proceedings end in favour of the Commission, this would be the first authoritative statement of the CJEU confirming the violation of an element of the rule of law in Poland. It should also be borne in mind that the judgment would apply erga omnes.

Fourthly, the passing of a judgment by the CJEU is in the best interest of the EU itself, for the ruling would undoubtedly confirm that the Commission (and the CJEU itself) are competent to assess the status of the rule of law in Member States, including the extent to which judicial independence is being observed in these states. So far, the CJEU has only passed a preliminary ruling in this respect, in the Associação Sindical dos Juízes Portugueses case (C-64/16). A judgment in this case would also prove that the Commission was right in accusing Poland of violation of Art. 19 of the Treaty on European Union in conjunction with Art. 47 of the Charter of Fundamental Rights of the European Union, and not the anti-discrimination directive, as it did in 2012 in the case of Hungary. As we all remember, the judgment of the CJEU proved to be ineffective in the said case.

What about SC’s questions referred for a preliminary ruling?

The act amending the SC Act provides for an obligation to discontinue pending proceedings before the SC: appeals against negative opinions issued by the National Chamber of the Judiciary in proceedings conducted under Art. 37 § 1 and Art. 111 § 1–1b of the SC (Art. 4 sec. 1) and in cases regarding the establishment of existence of a service relationship (Art. 4 sec. 2). In some cases of this nature, the SC referred questions to the CJEU for preliminary ruling regarding, among other things, the issue of the lawfulness of retirement of SC judges, the status of the National Council of the Judiciary and the status of the Supreme Court’s Disciplinary Chamber under EU law. The discontinuation of the proceedings would require the questions referred for preliminary ruling to be withdrawn.

In our opinion, such an obligation to discontinue proceedings violates the provisions of EU law and, therefore, the SC should refuse the application of a provision that gives rise to an obligation to discontinue proceedings.

Firstly, all these cases contain an EU element (namely the principle of effective judicial protection – Art. 19 of the TEU and Art. 47 of the Charter). There is, therefore, a suspicion that the obligatory discontinuation of pending proceedings makes it impossible to receive judicial protection for powers arising under EU law (e.g. by a judge who demands his or her status to be established in terms of retirement). As set out above, the act may be interpreted in such a way to establish grounds for effective retirement of SC judges. However, EU law may stand in the way of the legislator’s view. Hence, the obligatory discontinuation of proceedings makes it impossible to establish the status of the judge under EU law and to assess the act amending the SC Act. This constitutes a violation of the principle of effectiveness limiting the procedural autonomy of a Member State. Such provisions should not be applied by a domestic court due to the principle of primacy.

Secondly, potential discontinuation of proceedings would make it impossible for a domestic court to contact the CJEU through the preliminary ruling procedure, if the domestic court found that the CJEU’s interpretation is required to pass a final judgment in a case at hand. The CJEU finds such limitation to be one of the most serious violations of EU law. Any provisions of domestic law and administrative, court and legislative practice that allow for referring questions to the CJEU for preliminary ruling are repealed on the grounds of the principle of primacy of EU law. According to the CJEU, "the existence of a domestic procedural provision cannot lead to questioning the authority to request the CJEU to pass a preliminary ruling by domestic courts" (see e.g. Case no. C396/09).

Thirdly, the discontinuation of pending proceedings requires a procedural decision of a domestic court. Under EU law, in cases with an EU feature, a ruling in this respect must be passed by a court that meets the standards of the principle of effective judicial protection. In theory, retirement cases should be settled by the Supreme Court’s Disciplinary Chamber. However, for example, in declaratory judgment actions (examined by the Labour Law and Social Security Chamber of the SC) a question was posed of whether the Disciplinary Chamber is even able to settle this issue due to EU standards regarding the principle of effective judicial protection. Hence, the prejudicial question has yet to clarify who should make any procedural decisions in this case, including the decision to discontinue the proceedings. It arises at this point that even prior to the discontinuation, there is a need to establish the legal status under EU law. This, however, requires a response of the CJEU.

Finally, there is a question of a more general nature. Pursuant to Art. 4 sec. 2 of the SC Act, proceedings that are discontinued concern judges who retired under the amendment. If, however, under EU law, the retirement provisions violated EU law, hence they were inapplicable, the judges never retired in the first place. Therefore, the discontinuation provision of the amendment is not applicable in this respect. This is yet another proof that we need to wait for answers from Luxembourg.

Introduction: Constitutional Resilience and the German Grundgesetz

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Contemporary authoritarianism, while not having entirely abandoned the aims and methods of its ancestors, has been undergoing a reinvention in recent years. It no longer attacks democracy and the rule of law upfront but instead tries to adopt the language and even (at least nominally) the institutions of democratic constitutionalism to promote its autocratic aims from within. The two EU Member States where this new-school authoritarianism is most advanced are Hungary and Poland: Popular elections are being held; frantic law-making is taking place; constitutional and other courts keep handing down judgments – but each of these democratic and rule of law institutions have been successfully turned into tools of a self-proclaimed, rawly majoritarian “will of the people“. Populist authoritarian leaders claim exclusive moral representation of the people to undercut the role of the legislature, judiciary and other democratic institutions. Therefore, rejecting political pluralism and anti-constitutionalism differentiate populist authoritarians from democrats.

What lessons does the plight of the Polish and the Hungarian democracy hold for a seemingly stable constitutional state like Germany? How resilient would the German constitutional setup turn out to be in the case of an authoritarian majority taking and successfully holding on to power? What kind of legal or institutional changes may be helpful to make that event less likely and/or less hard to prevent? These were the questions we aimed to address in a debate jointly organized by Verfassungsblog and WZB Center for Global Constitutionalism, generously supported by Stiftung Mercator.

Our aim was to study the activities of the governments in emerging new-school authoritarian systems and the respective constitutional rules and conventions that were or were not in place to prevent or hinder its ascent. We also  compared them with the German legal and constitutional system in order to sharpen our distinctiveness and to identify possible deficiencies while the necessary societal and political consensus required to fix them is still there. To approach that aim, we have invited a wide range of experts from Poland and Hungary to a workshop in Berlin in order to discuss with their German counterparts under Chatham House rules the conditions of success of new-school authoritarianism in their respective legal and constitutional frameworks.

The workshop started with an opening plenary session to discuss the concept and the attributes of constitutional resilience, and the relation of positive constitutional rules and cultural habits and traditions in the prevention of democratic backsliding. Subsequently, the workshop broke into three separate, parallel workshop panels where experts from Hungary/Poland and Germany discussed the experiences made and the lessons to be learned in their respective fields of expertise: I) Constitutional Courts / Judiciary / Prosecution, II) Free Speech / Media / Civil Society, and III) Electoral System / Party Regulation / Opposition Rights.

The results will be published in an online symposium on Verfassungsblog over the next days: MATTIAS KUMM and CHRISTOPH GRABENWARTER sharpen the contours of the concept of constitutional resilience. GÁBOR ATTILA TÓTH and SUSAN ROSE ACKERMAN illuminate the relation of rules and traditions/conventions in terms of constitutional resilience. MICHAELA HAILBRONNER outlines the results of the debate in the first panel on courts and the prosecution, MATHIAS HONG does the same regarding the second panel about media and civil society, and ANNA VON NOTZ summarizes the debate in the third panel on political competition. JELENA VON ACHENBACH, DIETER GRIMM and SUJIT CHOUDHRY comment.

How populist authoritarian nationalism threatens constitutionalism or: Why constitutional resilience is a key issue of our time

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The problem with movements and parties spearheaded by “populist” leaders such as Putin, Erdoğan, Orbán, Kaczyński or Trump is not that they happen to embrace more nationally focused policies that metropolitan elites widely condemn as unjust, ineffective or otherwise misguided. Nor is the problem that they embrace a confrontational political style and uncouth rhetoric at odds with the mores of reflexively enlightened society in political capitals across liberal constitutional democracies. Neither of those features would constitute a constitutional threat justifying sustained reflections on constitutional resilience. The problem with electoral successes of populist authoritarian nationalists is that they pose a fundamental threat to liberal constitutional democracy.

 

The nature of that threat may on occasion be obscured by the rhetorical embrace of democracy by populist authoritarian nationalists. When the human rights of critical journalists are violated, when the independence and impartiality of the judiciary and the separation of powers are threatened, when representatives of international civil society and NGO´s are described as foreign meddlers and the European Union and international institutions are fundamentally discredited as illegitimate, such positions are defended in the name of democracy. All populist authoritarian nationalists claim to be good democrats and discredit their opponents as undemocratic. In current debates democracy has become a term that is being used as a bludgeon against liberal constitutional democracy to help bring about the transition towards a new order. That new order, which is described as “illiberal”, “guided” or “sovereign” democracy is conceived as opposed to and an alternative to liberal constitutional democracy.

 

It would be too quick to simply dismiss this appropriation of democracy as an intellectually bankrupt exercise of politically motivated rhetorical obfuscation. Claims, that democracy and the institutions of the modern constitutional state are not necessary complements but stand in tension to one another and are based on different presuppositions, have a pedigree among modern constitutional theorists that goes back at least to Carl Schmitt’s Rousseau inspired theory of democracy and remains alive and well even among some mainstream constitutional theorists today.[1] At the heart of such a conception of democracy is the idea of a unified will of the people as the foundation of all political legitimacy. The idea of a unified political will as the foundation of all political legitimacy explains four problematic anti-constitutionalist features of national-authoritarian ideologies.

 

First, populists have problems with the idea of legitimate opposition. They are, as Jan-Werner Müller has described elaborately[2], anti-pluralist. Populists claim to represent the whole of the people. Those against them must either be corrupt, incompetent or treasonous – in the service of cosmopolitan capital interests or foreign powers – or do not belong to the authentic people.  The idea of legitimate opposition, on the other hand, is central to liberal constitutional democracy. No genuine democracy without legitimate opposition. Free and equals practicing collective self-determination should be able to agree on basic constitutional principles. Beyond that the minority defeated in the democratic process is not expected to give up its own convictions about what justice and good policy require. They are not required to accept the majority decision to have been the correct one. The continued existence of a plurality of competing opinions and parties is not seen as a symptom of crisis or decay, or a modus vivendi to tolerate for so long as more oppressive uniformity enforcing measures remain counterproductive or otherwise unfeasible. Minority dissent is an ordinary state of affairs in an open society in which the freedom of speech among free and equals is secured. The minority is under a duty to accept the majority decision as legally binding, but retains the right to politically fight for a different policy, including the replacement of the current government with a different one, without having to fear repressions, sanctions or otherwise being discriminated against.

 

Second, populists have problems with the idea of procedural legitimacy. Separation of powers, formalities and legal procedures central to constitutional due process are seen not as the means of deliberative will-formation and democratic will construction, but as a Trojan horse for well-organized political elites to sabotage and subvert the authentic democratic will. In the political imagination of populists there is nothing between the people and their representatives, and it´s not unusual to claim that the people and its leadership are identical. Donald Trump, for example, claimed on occasion of his inauguration that with his election not another party would rule in Washington, but the people themselves. The formalities of democratic procedures, separation of powers, the independence of the press, the impartiality and independence of the courts, all these are potential obstacles to effectively implement the authentic will of the people, if these institutions can’t be made into effective tools for implementing and creating further resonance for the authentic will of the people as determined by the leadership. In this way the relationship between populists and institutions is purely opportunistic: Whatever helps to secure the effective implementation of the people´s will is legitimate, whatever is an obstacle to it is illegitimate. In practice, however, referenda, under conditions where the public media and the security apparatus is firmly in the hand of the dominant party, may be a reliable procedure of choice. Elections, too, can generally be relied on to produce the right results under the right kind of conditions and need not be formally abolished. But informal acclamation, too, is proof of legitimacy. It is not surprising that Trump (erroneously) insists that there were more people present at his inauguration than at any other previous inauguration. But generally, legitimation does not occur by way of procedure, instead the legitimacy of the procedure is assessed by the extent to which it can recognize and implement the authentic will of the people as determined by the respective leader. An election proves itself to have been legitimate, rather than corrupted and subjected to undue influence, if it results in victory for the populists.

 

Third, for populists any participation and influence of non-citizens or international institutions is a problem. If the foundation of legitimacy is the will of the people, then it is not a big step to discredit the influence of international institutions, international law, or the voices of an international civil society as an unjustified interference by external actors in the national democratic process. Yet the opposite is the case: Taking into account interests and rights of outsiders in a procedurally and substantively adequately structured way is a precondition for the legitimacy of national democratic processes. The open constitutional state, embedded in an international legal community and establishing a public sphere that integrates and reflects external voices and concerns, is not in tension with genuine democracy, but establishes the structures that assure its legitimacy.[3]

 

There remains a final point: If the will of the people is imagined as uniform, and persistent dissent is problematic, then the focus shifts to the extra-political features that assure the sufficient homogeneity of the people as a necessary precondition for the possibility to achieve such a will. “The people” in such a conception are not simply, as Kant put it, a multitude of persons under the jurisdiction of the state (einer Menge von Menschen unter Rechtsgesetzen). The regulative ideal underlying citizenship is not that everyone who happens to legally reside within the jurisdiction in the long term should have it as a free and equal human being. Instead the focus shifts to the existence of homogeneity-assuring criteria, however they may be specified. Many minorities, defined by deviant religious, ethnic, racial or cultural norms will then be excluded and deemed not to belong to the genuine people, the People with a capital P, or “the Demos”. Yet the only precondition for the stability of liberal constitutional democracy is a citizenry that is able to recognize and respect other citizens as free and equal partners and the constitution as the legal framework structuring democratic practices of collective self-determination.  More than the integration of immigrant minorities that may in part not share such an understanding, the integration of national authoritarian populists who also lack such an understanding has become a significant problem for constitutionalism.

 

Once populist authoritarian nationalists have taken over the government, as they have in Russia, Turkey, Hungary and Poland, the question arises how, if at all, liberal constitutional democracy can survive. The question of constitutional resilience is best posed before that happens: How should a constitution be designed, what kind of institutional and legal choices are the most promising to help keep the channels of political change genuinely open and a system of fair political competition functioning even under an authoritarian government? One of the advantages of our darkening times is that this is a question we can ask drawing profitably on the experiences made elsewhere, in Europe and beyond.

 

 

 

 

 

Constitutional Resilience

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I. Introduction

Resilience of a body in general describes the ability to cope with an attack on its immune system. What is undisputed in psychology or biology is also valid for legal bodies, in particular for states. The term “constitutional resilience” obviously refers to the abilities of constitutions to cope with attacks and in the end to cope with a real crisis.

The workshop is going to analyze in particular the situation in two States where considerable changes in democracy and the rule of law have occurred during the last three to ten years, Hungary and Poland. It is focusing on six fields of constitutional law, represented by three panels with two sessions each. My contribution aims at contributing to some of these fields, in particular Constitutional justice. It is based on the experience of the Venice Commission for which I have been working for more than a decade. During the past seven years the Venice Commission adopted no less than nine opinions on constitutional and related reforms of the judiciary, six on Hungary, three on Poland. There are some more if one takes other opinions on particular fundamental rights into account, I mention the one on religious communities or most recently on the “Stop Soros”-legislation, the consequences of which can be felt in Berlin. In the course of these proceedings the Venice Commission visited both countries several times. The Rapporteurs spoke to Heads of States, Ministers, Parliamentarians, judges, journalists and other organs such as the Judicial Council or the ombudsman and NGOs. In doing so, external experts get a good impression on the “state of a state” – vom Zustand eines Staates.

In my view, resilience is subject to at least two factors: First, how stable is the system? And second, how aggressive is its surrounding?

In searching for resilience I would like to formulate three questions which guide my thoughts on the issue und which may also be somehow relevant for the whole conference:

  1. Where are the vulnerable parts of a democratic state governed by the rule of law?
  2. How can one protect the vulnerability of the state or some of its features?
  3. If vulnerable parts of a Constitution are properly protected – are the democratic state and its constitution safe?

In order to give at least partial answers, I would like to proceed in three steps. I am going to start with remarks on methodology and practice. Second, I am going to deal with vulnerability of constitutional courts. This is followed by some observations on consequences for dealing with the issue of resilience, in particular with a view to constitutional justice.

II. Remarks on methods and practice

Methods: The establishment of European standards

    a. Discussion from outside: the problem of language and other problems

The first issue we have to bear in mind in the discussion of certain constitutional developments is the potential lack of legal know-how and language. In particular where a language is less accessible for foreigners (like Hungarian) one has to work with translations as far as they are accessible. Therefore, outsiders have to be careful in listening to various sides of the conflict. Sometimes even a majority violating many standards may have a point – for instance, this applied to the former majority in the Polish Sejm when it tried to influence future nominations of judges.

This is of course not new, in particular not for the Venice Commission. The Commission helps itself by having interviews with all sides in a conflict, Government and opposition, the judiciary, media, and NGOs, including GONGOs. In doing this, one gets a fuller picture. For academics and judges this picture is completed by conferences and bilateral and multilateral meetings among judges. International contacts dating back to former times when the crisis has not yet started help to gain common ground in the evaluation of the current situation.

    b. Cherry picking in systematic comparison

In discussions with Hungarian and Polish Government representatives one can frequently hear counter examples from older democracies of the continent. Single procedural features are mentioned and isolated from their context in order to legitimize the interference with the independence of justice. I would like to mention just one significant example: When the two-third majority requirement for the annulment of laws was introduced, the Polish Government referred to a similar requirement in party prohibition proceedings in Germany (and it was even argued that – due to the number of eight judges in a Senate of the BVerfG – it was in fact a three-quarter majority requirement). Another argument is what one could call the “zero solution”-argument; i.e. reference to European states without constitutional courts following the German-Austrian model. In an opposite sense, one can also hear the argument with regard to the invocatio dei and the length of the preamble of a constitution, with religious communities, etc. The answer to this is in all cases the same: Comparison always has to take into account the overall context. The role of constitutional justice has been different in the formerly so-called democracies to the role of the ordinary judiciary or parliament exercising similar functions in the UK, Sweden or Finland. In Germany and Austria, constitutional justice has been a means of stabilizing the democratic state after non-democratic regimes have come to an end. Here the situation was more similar to the countries which overcame communist dictatorship at the beginning of the 1990ies.

Another example of selective comparison with a view to Hungary concerns cardinal laws (also known in similar forms in France under “loi organique”), an instrument that has existed for a long time in Hungary but which was excessively used only after 2010.

    c. What are European standards in the field of rule of law?

It is against this background that my third methodological remark is formulated. I would like to comment on the proper approach, in a way it is the question of the proper and adequate methodology to analyze systems in transition from a European perspective.

In reflecting the methodology of establishing European standards I take as a starting point the experience of the Venice Commission. The quality of opinions as non-binding recommendations encourages the continued development of existing standards. The purpose is not only the creation of minimum requirements, but rather the achievement of "best practice". In this context one has to refer to a certain variety of members, on one side the "judicial" members, thinking rather "legally", and on the other side politically thinking members, who look at legislation with a political background with the perspective of shaping the law.

Altogether the process of preparing an opinion is a cooperative work of protagonists with different qualities, in particular specialists in the field of European constitutional law, who are not primarily guided by formal rules of procedure, but rather by tacit consensus and – meanwhile – decade-long practice. Due to time pressure and awareness of the non-commitment of the documents the wordings are not always as accurately chosen and discussed as it is frequently the case in constitutional or highest courts. The special value lies within the common European perspective, in the influence of different standards and in the fact that other organs can build upon them, whether courts or political organs. The principle of a dialogical trial should be emphasized as a general characteristic.

Like the judges of the European Court of Human Right (ECtHR) the members of the Venice Commission are guided by the idea of a common European constitutional heritage, as it was the vision of the governments of the member states (at least at the time of the foundation of the Council of Europe), taking seriously the last part of the preamble of the Convention for the Protection of Human Rights referring to governments of states "which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law." Mutual references in opinions, studies and decisions increase cohesion, awareness of multilateral support in the maintenance and development of democratic, rule of law and – last but not least – standards of human rights.

As some of you know the Venice Commission has not only adopted a number of opinions on Hungary and Poland but also a “Rule of Law Checklist”. This checklist covers all important issues to be respected in order to establish what we are used to calling “a democratic state governed by the rule of law.” In its main part it puts into question so-called benchmarks, such as supremacy of law, legal certainty, equality or access to justice.

A checklist has advantages and disadvantages. On the one hand, it seems to be easy in application, as you have to tick boxes. On the other hand, checklists do not show the problems between the lines. There may be serious problems even if all or nearly all criteria are fulfilled. On the other hand, a state does not necessarily fall short of European standards if it does not show a certain feature.

Therefore, the Venice Commission is not limited to putting questions. It also explains how the criteria should be applied and refers to the “specific national context” when it comes to the application of a certain criterion. In short: Checklists may help, however, they must not replace a synthetic approach.

    d. Practice: The factor “time

Time is an important issue when it comes to resilience. Experience with governments aiming at radical changes in a democratic system shows that these bodies proceed with remarkable speed when it comes to legislative acts or even to the election of judges. Chronologies in Venice Commission opinions show this very clearly. Governments push laws through Parliament within days, opposition parties do not have enough time for studying the law, the role of Parliament to discuss laws is to a large extent neglected, public debate is cut off by speed. As to election of judges, the most remarkable example is the taking of the oath of some new judges of the Constitutional Court in the middle of a December night.

What we can see here is that state organs enjoy different possibilities to speed up in certain situations. While opposition in Parliament is already in a position of disadvantage vis-à-vis the executive, the situation of the judiciary and constitutional courts is even worse as far as time is concerned. Judicial proceedings call for strict procedural guarantees, exchange of views among the collegiate body and a well-written reasoning, in particular in situations of crisis. The power of the argument and convincing with its reasoning, not speed, is the currency with which the judicial power deals.

As to European bodies, their time of reaction is even longer, although they are – with two exceptions – non-judicial organs. The judicial organs are the Strasbourg and Luxemburg Courts, which need applications under Article 34 ECHR or references under Article 267 TFEU, which they only get after some time has lapsed. In the European Union, the Commission, the Council and the European Parliament need months and years in order to come to a decision even to introduce proceedings, the Commission still being the most flexible organ among these three.

An exception is the Venice Commission which has established working methods that enable it to adopt opinions sometimes within weeks, regularly within two months. This aspect forms – together with the know-how and the reputation of its members – a reason for its success and its relevance for decisions of other European bodies.

Another time issue I can only address in questions is the following: In situations where legal scholars discussing resilience are confronted with radical changes and the aim to remove such changes the questions arise: How far can we turn back the wheel of time? Do we have to accept certain decisions after a while as part of constitutional law although they were initially found illegal? These questions should be put on the agenda of a workshop on resilience.

 

III. Vulnerability of constitutional justice: three Achilles´ heels of constitutional Courts

Let me turn to the vulnerability of constitutional justice. I would like to discuss the vulnerability of courts by describing three Achilles´ heels: the nomination of judges, targeted changes in procedural law, and the disrespect of decisions.

Composition of a court and election of judges

The first and most important means of interfering with the independence of a constitutional court is the selection of its bench. If the election of judges has the consequence that the majority in the Court is not willing or unable to exercise effective control, the Court loses its functions in a state governed by the rule of law. The examples of the Austrian Constitutional Court in the 1930s as well as the American Supreme Court in the 19th century confirm this experience, long time before Franklin D. Roosevelt intended to increase the number of justices in the SCOTUS to 15 in order to avoid interference by judges with his “New Deal”.

There will be a special workshop on the issue, so it is not the task of the opening session to give simple answers beforehand. Factors of resilience, which can be seen at first sight, are whether there is a requirement for a qualified majority for the election of judges, whether there are cooling-off-periods for politicians, whether there are strict requirements concerning the qualifications and professional backgrounds and whether there are provisions of incompatibility of offices.

What should be added at this early stage of the conference are two elements which one immediately realizes when going deeper inside a system as an outsider.

The first element is the term of office of constitutional judges. As a general rule, terms of office of judges in constitutional courts vary between five and twelve years. There a few examples where the term goes beyond, Austria being one example. Arguments on the length have been exchanged – it is basically on striking a balance between democratic legitimacy and independence. In Poland and Hungary, it is nine years like in other courts (including the European Court of Human Rights), in Hungary there is the possibility of one re-election, which in fact does not contribute to more independence, on the contrary.

An isolated analysis would come to the result that there is no problem with a 9 years-term. However, in the concrete Polish situation, it was. The reason was the coincidence of a larger number of vacancies at the Court. Simple mathematics explain the situation. The Court has existed for less than 30 years, it consists of 15 judges with a term of only nine years. One does not have to be an expert in statistics in order to realize that it is likely that a majority of judges may be replaced in less than a legislative period.

In autumn 2015, the Polish Constitutional Court was particularly vulnerable because the old majority had overstepped the legal lines of the constitutional election of judges, which gave the new majority a pretext to take a similar step – crossing the line of constitutionality.

The second aspect is whether opposition in Parliament or other intermediate powers participate in the election process or whether it is the Government alone who elects the judges. In its rule of law checklist the Venice Commission recommends a two-third majority for the election of judges in Parliament, a model which exists in Germany. In absence of such a rule constitutional practice may lead to a similar result. Austria has been an example for this; in Germany, the consensus rule is completed by custom even reaching beyond the two-third requirement in the two chambers of Parliament. Another way is to distribute nomination between various organs, including organs of the judiciary, Italy is an example for that.

Modification of procedural law

The second Achilles´ heel is procedural law. Again, we find examples in the Polish and Hungarian experiences. The Polish Law amending the Act on the Constitutional Tribunal of 22 December 2015 contained inter alia a sequence role, providing for a quorum of presence and a qualified majority in certain proceedings. In combination with the election of certain judges the measures were obviously directed to influence the outcome of certain proceedings, in particular the examination of the amendments to the Constitutional Act themselves.

In Hungary we face also a number of direct interventions in the procedural law introduced by a series of legislative acts only short time after the Government has reached the two-thirds majority in Parliament. Apart from procedural aspects two different types of direct interference with the judicial activity of the Constitutional Court exist:

(a) The first one concerns the direct curtailing of competencies of the Court. In this context there was a lot of discussion on the abolition of actio popularis in Hungary. For the purpose of this paper I would like to leave this issue aside; here the legislature has reduced a legal situation that went far beyond normal European standards to a level that corresponds in this respect roughly with the situation in Germany and is well above the access to the Constitutional Court in Austria. A much more critical issue is the limitation to review tax and budgetary legislation according to Article 37 para. 4 of the Basic Law only with a view to some basic human rights[1], introduced in 2010 and extended one year later.

(b) The second interference concerns the direct influence by introducing a rule of interpretation. This happened in the case of Hungary. As a reaction to references of the Constitutional Court to previous case law the Constitutional legislator tried to cut continuity to previous case law established under the former Constitution.[2] If such a step is successful it is a severe interference with the independence of constitutional justice as it is aimed at directly influencing the process of interpretation of the Constitution.Acceptance of decisions of constitutional courts by government

The third Achilles´ heel concerns the acceptance of the Constitutional Court and its case-law by Government.

Disrespect vis-à-vis constitutional justice can be seen at an early stage of proceedings. It is a common feature that in norm control proceedings before a constitutional court representatives of Government and/or Parliament take part in order to defend legislative acts before the Court. As to the outcome of these proceedings, constitutions usually provide for the publication of judgments concerning the annulment of laws (or at least of its operative part) in the official journal where laws are published. This is usually an obligation of the government concerned or of the prime minister.

In these reactions we can see clear disrespect of the constitutional court. If the validity of the highest judicial instance of a State is not respected by Government and/or Parliament, a constitutional crisis has reached its peak, or rather its deepest ground. In Poland of 2016 we have seen how Government overtly disrespected the Constitutional Tribunal and its decisions, Government did not participate in the proceedings on the 2015 Amendment to the Constitutional Tribunal Act and the decision of the Constitutional Tribunal annulling the Amendment was declared null and void.

IV. Resilience of Constitutional Courts

Two different approaches to resilience

The design of this conference could lead us to the question: Which lesson do we learn from Poland and Hungary? Among other lessons to be learned, the most important one is the vulnerability of Constitutional Justice. We have seen in the case of Hungary that a two-thirds majority can heavily deprive constitutional courts of vital elements. In Poland we get an example where a simple majority in Parliament can do the same or go even further.

A resilience discussion could lead us to vigilance towards the first signs of an authoritarian, non-democratic regime and to preventive counter-measures – a so called “Wehret-den-Anfängen”-approach, both on the level of constitutionalism and on the level of the political debate.

Another, different approach – and in fact a probably more needed approach regarding the countries affected by severe attacks on the independence of the judiciary – is directed towards assisting those who engage in the debate and fight for certain standards of the rule of law, democracy and human rights in their respective constitutional orders.

If we accept this difference we might agree in the following comparison drawn from medical science: For a healthy person a medical doctor would not prescribe treatment with antibiotics, rather the doctor would recommend vitamins and nourishment that strengthens the immune system while winter approaches. If the person faces an imminent danger of serious diseases the doctor would recommend vaccinations. The situation is different with a patient having fallen ill already. In this case medical treatment in the narrower sense is required.

Three steps to increase or support resilience

As many German colleagues might focus on the first approach during the next two days I would try two introduce some ideas to the second approach – “the ill patient”-approach. Such an approach includes – at least – three steps.

The first step is to decide whether it is an illness or a simple mutation of the rule of law. In other words: the question is whether there is a threat to democracy and the rule of law which is beyond a red line drawn by European Law and/or the national Constitution. This has to be separated from other questions which might be called “political questions” within the margin of appreciation of a state, hereby using a term constantly used by the European Court of Human Rights.

The second step is to analyze the reaction by national organs and stake holders, including universities and the civil society, in particular the media and their reactions in the respective state. At this point I would like to be very concrete as someone who is an outsider to the Hungarian and Polish constitutional debates understanding none of the two languages.

To start with Poland: The Constitutional Tribunal, the Supreme Court and in particular their (former) (Vice)Presidents have shown remarkable independence and courage. There was strong resistance by the civil society and other stakeholders in the debate. The judges of the Constitutional Tribunal went on adjudicating with an open dissent on the composition of the bench, they declared the amendments on their procedural law to a large extent unconstitutional, and they tried to prevent the new Court President preferred by the Government from being elected. Apparently votes are not so clear so the new President avoids sitting in the Plenary. Against the non-acceptance of judgments the ordinary courts took the annulment of laws by the Constitutional Tribunal into account although the decisions were not published. However, in the end this did not lead to a situation where the Constitutional Tribunal could continue to fulfill its task under the Constitution. Rather we have a nonfunctioning Court at the moment, more or less isolated on an international level.

The situation is somehow different with the Hungarian Constitutional Court. The two-third majority gave the Government much more room to maneuver, and they made strong use of it. Illegalities, breaches of the constitution by the legislator or the Court are not obvious (at least not in the same way as in Poland), the Court produces decisions and, in some cases, also declares laws unconstitutional. However, the effectiveness of the judicial control by the Court is put in question in Hungary, also by some of the conveners of this conference. My suggestion would be to look closely at decisions in a joint Hungarian-European analysis, where Hungarians and outsiders should have the same aim, but different roles. The aim would be to find out whether there are positive features that we may agree on at all. Can we find tendencies of substantial case law or is there only lip service towards European standards while the judges just approve what the Fidesz Government majority legislates? In that context I would draw the attention to Zoltan Szentes´ analysis of the case law between 2010 and 2014 in Jahrbuch für Ostrecht 2014 without discussing his observations. More recent examples of the case law and of dissenting opinions show that the Hungarian Constitutional Court has to a large extent withdrawn from an active role of a “negative legislator” towards a Court that deals with a number of questions on a more formal basis, frequently focusing on procedural requirements. However, the Court still is not a uniform body although practically all current judges have been appointed under the majority of the Fidesz Government. A few examples in the recent case law should show this:

  • In a judgment on disciplinary proceedings against a judge sitting in insolvency cases and allegedly having dealt with his cases too slowly, the Constitutional Court annulled the sanctions on procedural grounds. It did not deal with the allegation of the judge that the measure against him was a retaliatory measure for his criticism against the judicial system in Hungary. In this context, one should take note of a separate opinion of judge Czine (a career judge) who called for a stronger consideration of independence of judges in disciplinary proceedings against judges.
  • The increase in cardinal laws with a two-third majority-requirement in the years after 2010 had the effect that future simple majorities in Parliament could not depart so easily from legislative decisions taken by the first Fidesz Government. However, this already hits the current Fidesz Government. According to Article P of the Basic Law, legislation on the protection of national resources was subject to cardinal laws. In two decisions of October 2017 the Constitutional Court found that the legislator has not taken the proper form of cardinal law, setting a time limit in which the legislation in the form of cardinal act has to be taken.
  • In the same decision it held that the provision of Article 37 para. 4 Basic Law restricting the competences of the Court was to be interpreted narrowly, not excluding the review on separation of agricultural land from the national land fund.
  • A negative example in terms of quality of the reasoning is the decision on political advertisement by Government in the campaign for the 2016 referendum on “compulsory immigration of foreigners through the EU”. The question in the proceedings was whether one-sided Government spots, calling for participation in the referendum (“I love Hungary and therefore I go voting”), were to be counted for the 50-minutes-limit for Government advertising, which did not happen. The Curia (Supreme Court) gave a detailed reasoning why it found that this “Government propaganda” was to be counted for the 50 minutes and did not fall under “advertising in the public interest”. The Constitutional Court in turn annulled this decision and found (in favor of the Government) that imposing the 50-minutes-limit violated the freedom of expression of the TV station concerned. There is no substantial reasoning in the judgment and in particular no argument against the reasoning of the curia. For the background it is remarkable that the rapporteur was Maria Szivos who was one of the four judges elected when the size of the Court was increased from 11 to 15. And even more remarkable is the fact that a separate opinion of four judges criticizes that the Constitutional Court did not review whether the judgment of the Curia had exceeded the limits of constitutionality. Rather it would replace the legal opinion of the Curia on the interpretation of ordinary legislation by its own views, thus becoming a “super revision instance” which was not its role under the Constitution. Another judge expressly confirms the decision of the Curia.
  • According to Point 5. of the Closing and Miscellaneous Provisions of the Fourth Amendment of the Fundamental Law of 2013 “Constitutional Court rulings given prior to the entry into force of the Fundamental Law are hereby repealed.” This provision should be “without prejudice to the legal effect produced by those rulings.” So far, this provision has been widely ignored by the Constitutional Court, it continues to refer to older case law especially where there is identical wording. However, in its decision 13/2018 there is a separate opinion that strongly argues against reference to the old Constitution.

These examples should be sufficient to show that the court shows some tendencies towards formalism and limited reasoning. However, even a Court nominated by one Government and de facto by one party may show different shadings (“Schattierungen”) as to judicial independence vis-à-vis the Government. Perhaps this can give an input in particular for the colleagues from Hungary to discuss possible perspectives with us.

The third step would be to ask whether a dialogue on this issue – be it in legal scholarship, be it among judges within Hungary, be it on a European level – may contribute to improvements, whether legal diffusion among EU member states may contribute to any change.

 

 V. Resilience and constitutional culture in European constitutionalism

Resilience can be supported by provisions in constitutions protecting the constitution from interferences of the constitutional legislator itself. “Ewigkeitsgarantien” or “fundamental principles” not subject to change are an instrument in this respect. However, the best rules may not be sufficient if mutual respect between state organs is lost and with this the respect for the constitution and its core guarantees.

A first concluding remark is therefore dedicated to constitutional culture. In a situation of constitutional crisis we often find a climate of conflict, sometimes even a climate of hatred, between competing political forces. During a visit to Warsaw in February 2016 the rapporteurs of the Venice Commission became witnesses of a heated debate among parliamentarians. A similar déjà-vu occurred to them in the Spanish house of deputies when discussions were led on the Role of the Constitutional Court in the Catalan Crisis. Heated debates are nothing unusual in Parliaments. However, they are a symptom for absence constitutional culture.

The shortest and best way to explain the significance of the role of constitutional culture is to quote the 2012 opinion of the Venice Commission on judicial reform in Romania. The Commission held: It “seems that some stakeholders were of the opinion that anything that can be done according to the letter of the Constitution is also admissible. The underlying idea may have been that the majority can do whatever it wants to do because it is the majority. This is obviously a misconception of democracy. Democracy cannot be reduced to the rule of the majority; majority rule is limited by the Constitution and by law, primarily in order to safeguard the interests of minorities. Of course, the majority steers the country during a legislative period but it must not subdue the minority; it has an obligation to respect those who lost the last elections."

This statement has expressly been repeated and endorsed in the 2016 opinion on changes of the Constitutional Tribunal Act in Poland. The Commission then introduces a “principle of loyal cooperation between the institutions”, already mentioned in the opinion on Romania. In particular with a view to the disregard of the decisions of the Polish Constitutional tribunal the Commission held: “A mature understanding of constitutional institutions is required, which accepts that even after a strong impetus for political reform, such reform has to remain with the limits of the Constitution and it is for the competent organ, the Constitutional Tribunal, to decide when these limits have been overstepped.”

Another feature of lack of constitutional culture is the attack of judges. We have seen this in the UK in the context of Brexit and a court decision establishing the participation of Parliament. However, there is a big difference. While the three judges in London were called “enemies of the people” by a tabloid, harsh criticism of the same kind and similar wording stem from state organs of the Government side. Judges, and in particular those sitting in constitutional courts, are not exempt from criticism. However, personal attacks on all judges or individual judges are clearly inadmissible and jeopardize the position of the judiciary and the public trust and respect it requires. Such attacks are in contradiction with the Court’s position as the guarantor of the supremacy of the Constitution and they are also problematic from the point of view of the constitutionally guaranteed independence and irremovability of the judges of the Court.

These observations taken out of the recent practice lead to a theoretical question on democracy. Modern western constitutionalism is based on the theoretical view that the requirement of a qualified majority for changing the constitution protects a minority against changes of law by a simple majority. This has been made clear by Hans Kelsen in his famous book on democracy: “Wesen und Wert der Demokratie” – Nature and Value of Democracy. The constitution is a part of the legal order which is not subject to numerous and quick changes by a simple majority in Parliament, but rather a rigid body protected by an independent Constitutional Court. Hans Kelsen argues in favor of a parliament, in which political opponents have the forum to take decisions after discussions, directed to find a compromise. The aim of the hierarchy of constitution and ordinary laws is the following: those who are not part of the majority are protected by the Constitution and by the rights the Constitution confers upon them. Protection of individuals belonging to minorities, larger minorities as well as smaller ones, in the framework of a democracy, is the aim of a constitution.

If, as has been the case in Hungary for some years, Government enjoy support by a two-third majority in Parliament, the mechanism of protection of minorities does not work. That is why the Venice Commission stated in 2011 in its opinion on the Constitution of Hungary on the issue of cardinal laws: The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-thirds majority have of cementing its political preferences and the country’s legal order.” And it concluded: “When not only the fundamental principles but also very specific and “detailed rules” on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.”

Beyond Electoral Mandates—Oversight and Public Participation

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The best lack all conviction, while the worst

Are full of passionate intensity.1)W. B. Yeats, “The Second Coming” 1928.

These despairing lines from W.B. Yeats, written in 1928, resonate with current worries that electoral democracies in Hungary, Poland, Germany, and elsewhere are producing politicians who seek to undermine the very institutions that put them into office.2)Sławomir Sierakowski, “Interview with Adam Michnik: Europe’s  New Eastern Question,” Political Critique, December 1, 2017,  http://politicalcritique.org/cee/poland/2017/ps-insider-interview-europes-new-eastern-question-slawomir-sierakowski-adam-michnik/. On the Alternative for Deutschland, Germany’s far right party, see: Jefferson Chase, “AfD: What you need to know about Germany’s far-right party,” Deutsche Welle, September 24, 2017, https://www.dw.com/en/afd-what-you-need-to-know-about-germanys-far-right-party/a-37208199. Countries from the United States under Donald Trump to Brazil under the forthcoming presidency of Jair Bolsonaro raise similar worries. See, for example:  Ernesto Londoño and Shasta Darlington, “Jair Bolsonaro Wins Brazil’s Presidency in a Shift to the Far Right,” New York Times, October 28, 2018, https://www.nytimes.com/2018/10/28/world/americas/jair-bolsonaro-brazil-election.html . This paradox can afflict even established democracies. Those who win elections want to remain in power after the next election. They have an incentive to undermine the credibility of the opposition and to use the tools of political power to do so. Incumbents who aggrandize power and demonize opponents can produce situations where office holders are less and less threatened by credible organized opponents. The opposition, in turn, seeks to gain power not only by espousing alternative policies but also by questioning the integrity and competence of incumbents.

In a stable representative democracy institutional and legal constraints curb and domesticate tendencies toward autocratic power. These constraints have popular support and are a fundamental aspect of the nation state and a source of patriotic pride over and above the identities of the particular people and parties holding power. The citizenry has what Jürgen Habermas calls Verfassungspatriotismus or “Constitutional Patriotism”.4)Jürgen Habermas, “Eine Art Schadensabwicklung. Die apologetischen Tendenzen in der deutschen Zeitgeschichtsschreibung, in: Historikerstreit. Die Dokumentation der Kontroverse um die Einzigartigkeit der nationalsozialistischen Judenvernichtung, (München, 8th edn., Piper 1991). The term was first used by Dolf Sternberger in 1979, and was developed  by Jürgen Habermas in a somewhat different sense. For an overview of the concept, its link to the German past, and its broader normative value  see: Jan-Werner Müller, „On the Origins of Constitutional Patriotism“ Contemporary Political Theory  5:278-296 (2006). For its role in constitutional debates in Poland see Dorota Szeligowska, The Dynamics of Polish Patriotism after 1989: Concepts, Debates, Identities, Ph. D. Dissertation, Central European University, Budapest, Hungary, 2104. In such polities, support for incumbents would ebb away if the government tried to undermine fundamental constitutional principles—either basic institutions or the protection of rights.

If citizens do not have that attitude, however, incumbents may be able to interpret, amend or ignore the text in ways that undermine liberal democratic values. Furthermore, not all constitutional texts provide a strong institutional bulwark against autocracy. Nominal institutional checks and balances in the text are not sufficient; they have to function adequately and have to be seen by citizens as a key to political legitimacy. Comparing Hungary and Poland, Laurent Pech and Kim Scheppele write that the Polish government had to violate the constitution to achieve its aims while in Hungary it could “create an illiberal state by amending the constitution every time it was tempted to violate it.”3)Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) at p. 26.

Verfassungspatriotismus played an important role in the development of the Federal Republic of Germany after the Second World War and continues to be invoked in the face of rising right-wing parties. For example, former President Joachim Gauck, both in his inaugural speech in 2013 and in a 2017 speech at the end of his term, evoked Verfassungspatriotismus as an everyday reality designed to uphold the values embedded in the German constitution.5) During his end of term speech on 18 January 2017, Gauck referred to Habermas’ concept of Verfassungspatriotismus: http://www.bundespraesident.de/SharedDocs/Reden/DE/Joachim-Gauck/Reden/2017/01/170118-Amtszeitende-Rede). He addressed the rising fear of right-wing tendencies and appealed to the society to stand up jointly to fight for the values enshrined in the constitution. He described Verfassungspatriotismus not only as a theoretic concept developed by scholars, but also as a concept of everyday reality (Lebenswirklichkeit). He also referred to the concept in his inaugural speech on 23 March 2013 (available here, in English:  http://www.bundespraesident.de/SharedDocs/Reden/EN/JoachimGauck/Reden/2012/03/120323-Swearing-In-Ceremony.html).

But we need to be more specific. What institutions are important checks on the autocratic tendencies of incumbents, how do they work, and how might determined politicians undermine these institutions in their own interest? Are there notable weaknesses in the constitutional structures of Hungary and Poland and even in the German Grundgesetz that make them vulnerable when popular support for particular individuals and parties clashes with liberal democratic values. I focus here on several that are important but that have not often been the focus of commentary. These are of two kinds: first, institutions of “horizontal accountability”,6) Guillermo O’Donnell, “Horizontal Accountability in New Democracies,” in Andreas Schedler, Larry Diamond, and Marc F. Plattner, eds., The Self- Restraining State: Power and Accountability in New Democracies (Boulder CO: Lynne Rienner, 1999). and second, those that enhance the democratic legitimacy of policymaking procedures inside the executive branch.

The first, horizontal, category, includes, not only the courts—including the prosecutorial service and specialized administrative or subject matter courts—but also oversight institutions such as ombudsmen, supreme audit offices, electoral commissions, anti-corruption commissions, and media oversight bodies.  The second category obligates the executive to give public reasons for its policies. It links the democratic legitimacy of delegated executive and agency policymaking to procedures for gathering the views of the public and of organized stakeholders such as business, labor, and civil society, outside of the political party framework. If, in contrast, ordinary citizens and civil society organizations are not part of the policymaking process, they may lose confidence in these processes and become disillusioned with democracy. Of course, other factors such as job market prospects, income and wealth levels,7) See Maurizio Bussolo, Maria E. Dávalos, Vito Peragine, and Ramya Sundaraam, Toward a New Social Contract: Taking on Distributional Tensions in Europe and Central (Washington DC: World Bank Group, 20180) available at: http://documents.worldbank.org/curated/en/202171468299130698/Towards-a-new-social-contract, pp. 189-196 . Maps 4.1 and 4.2 on pages 192-193 document the way at-risk poverty measures correlate with votes for extremist parties in Hungary and Poland. the quality of daily life, and the level of security and trust in others may overshadow individuals’ views of government policymaking legitimacy, but perceptions of government inclusiveness, honesty and competence will likely affect citizens’ views of the legitimacy of those who exercise power.

My basic claim, which builds on my research in Hungary and Poland, is that the transition to democracy and the market in these countries underemphasized reforms that would involve citizens and civil society groups in reforming the delivery of government services and the regulation of the market economy.8) Susan Rose-Ackerman, From Elections to Democracy: Building Accountable Government in Hungary and Poland (Cambridge UK: Cambridge University Press, 2005).

Reforms tended to respond to European Union mandates, not reflect domestic concerns. Levels of distrust in both national governments and in EU institutions remain high.9)But see, Demos, Nothing to Fear but Fear Itself (London: Demos, 2017) https://www.demos.co.uk/wp-content/uploads/2017/02/Nothing-to-Fear-but-Fear-Itelf-final-short.pdf . This British think-tank report on public attitudes, showed that Polish citizens have far more trust in the European Commission than citizens in France, Britain or Germany—almost 60% compared with 35-40%  (p.37). However, 60% of Poles distrusted their national governments, more than citizens of Germany and Britain (p.38). (The French were particularly distrustful of their government). Even when there were strong policy arguments for certain reforms, citizens often viewed them as imposed from outside in an almost colonial relationship. Sociological studies document perceptions of the unfairness of the allocation of wealth during the transition.10) György Csepeli, Antal Orkény, Mária Székelyi, and Ildikó Barna, “Blindness to Success: Social Psychological Objectives Along the Way to a Market Economy in Eastern Europe,” in János Kornai, Bo Rothstein, and Susan Rose-Ackerman, eds., Creating Social Trust in Post-Socialist Transition (NY; Palgrave Macmillan, 2004) pp. 213-240. These perceptions may have opened the door for the victory of authoritarian parties in recent years.

At first, the constitutions of Hungary and Poland were the old socialist constitutions amended and given legal bite.11)Poland first made temporary amendments to the socialist constitution, called the Small Constitution of  1992 and then promulgated a new constitution in 1997, https://www.constituteproject.org/constitution/Poland_1997.pdf. On the socialist roots of the first post-transition Hungarian Constitution see Peteri Zoltan “Constitution Making in Hungary” Acta Jur. Hng. 36: 149 (1994), p.153. Eventually, Poland and Hungary issued new constitutions in 1997 and 2011, respectively. In Poland the new document retained some features of the socialist past.12)On the socialist roots of the post-transition Polish Constitution see Daniel Cole, “Poland’s 1997 Constitution in Its Historical Context” (Indiana University Maurer School of Law, Paper 589, 1998) pp. 28-30. In Hungary the 2011 constitution reflected Viktor Orbán’s efforts to entrench his legacy in institutions and aspirational statements.13) Hungarian Constitution of 2011, https://www.constituteproject.org/constitution/Hungary_2011.pdf . See also András Bozóki and Dániel Hegedűs “An externally constrained hybrid regime: Hungary in the European Union”, Democratization 25 (7): 1173-1189 (2018).

The Constitutional Courts in Hungary and Poland have not been much concerned with enhancing the public accountability of executive policymaking. At first, most of the justices appointed to the new constitutional courts had private law backgrounds to avoid those tainted by association with the prior regime. This meant that few had experience in public law issues related to state functioning. These justices might aggressively protect the rights of the individual, but they had little interest in the institutional framework or democratic legitimacy of policymaking in the executive.14)Rose-Ackerman, 2005, pp. 64-70. Going forward, to the extent that current governments have compromised these courts’ independence, the justices are unlikely to pursue those institutional concerns in the present. Both countries are left with weak checks on executive power.

Of course, much of the public law of the socialist period was not appropriate for the new market-dominated states that emerged.  But the process of reform did not produce a legal/political system strongly committed to public involvement in government policymaking. In part, that was a legacy of the socialist past where public “participation” often meant “volunteer” projects that ate into individuals’ scarce free time on weekends and holidays. The “civil society” groups that existed were umbrella bodies sanctioned by the state, such as the Young Pioneers, Birdlife in Hungary and Gesellschaft für Natur und Umwelt (GNU) in East Germany, and societies for women and the elderly.15)On the role of the Young Pioneers in GDR society see: Emmanuel Droit “From Identity to Appearances: Clothing and Political Identity in the GDR. The Case of the Young Pioneers' Neckerchief (1949–1989)” (Berlin, Revue d’histoire moderne & contemporaine. No. 59, Vol. 2(2, pp. 108-143; On the “voluntary” associations in Hungary before 1990: Rudolf Andorka “Changes in Hungarian Society Since the Second World War” (Macalester International, Vol. 2, Article 12, 1995), pp.127-128; also: European Commission “Study on Volunteering in the European Union, Country Report Hungary”, 2010, p. 1 http://ec.europa.eu/citizenship/pdf/doc1024_en.pdf; European Commission “Study on Volunteering in the European Union, Country Report Poland”, 2010, p. 1  http://ec.europa.eu/citizenship/pdf/national_report_pl_en.pdf.  The GNU mater merged with its West German counterpart to become Naturschutzbund Deutschland e. V. (NABU) which today the biggest and most influential society promoting environmental protection.)) After the transition, a number of new groups arose, some supported by outside funding, for example, the Environmental Management and Law Association and World Wildlife Fund. However, with low personal incomes and little tradition of private philanthropy, the local organizations presently struggle to survive and to push their reform agendas.16) Rose-Ackerman, 2005, pp. 163-191; European Commission Country Report Hungary, 2010, p. 1,11,12 and Country Report Poland, 2010, p. 1.

Furthermore, the type of civil-society involvement that most easily came to mind during the transition was a corporatist model derived from labor/management committees, as exist in Germany. This model can be useful in some contexts, especially if the organizers are willing to extend the definition of “union” broadly—for example, to include a group representing pensioners in a debate over pension reform, as happened in Poland. But such a search for stakeholders could freeze membership in policy advisory groups at the point of transition. Early efforts in Hungary and Poland to reform labor laws included associations of workers and firms that became increasingly unrepresentative as the economic basis of society changed. For example, in Hungary a union of university professors and an association of small cooperative businesses served on the committee advising the government for many years although they represented increasingly small shares of the economy.17) The discussion here derives from Rose-Ackerman, 2005, pp. 131-137. Furthermore, labor union membership is currently about 10% in both countries, down from the already low totals in the recent past. Thus, dialogues on labor/management issues with unions and employers have often been unrepresentative of both labor and management.18) The latest official statistics of 2015 show only 9% of workers in unions. See Edit Németh; Rainder Girndt Zwischen Resignation und Aufbruch – Aktuelle Entwicklungen bei den ungarischen Gewerkschaften (Budapest:Friedrich Ebert Stiftung Studie 2018), pp. 1,7. In Poland membership is 10%  according to CBOS Polish Public Opinion Research Center, Trade Union Membership and Opinions about their activities  (2013), summary in English: https://www.cbos.pl/EN/publications/reports/2013/062_13.pdf , p.1; full report:  http://library.fes.de/pdf-files/bueros/budapest/14574-20180919.pdf , p.7.  These percentages represent a steep drop from 2002 when the percentages were estimated at 20-25% in each country (Rose-Ackerman, 2005, pp.131-137). Even if the government seeks advice from outside, the composition of the groups is often hard to defend. This situation means that when autocratic trends emerged out of political parties nominally committed to democracy, there were only a few counterweights with sufficient credibility, organizational stability, expertise, and funding to push back effectively.

Bodies with explicit oversight functions exist in Hungary and Poland. However, they have had difficulty maintaining independence and competence. The controversy over court-packing in the Polish Constitutional Court is well known,19)The developments are outlined in the blog posts of Maciej Kisiliowski in Politico. https://www.politico.eu/author/maciej-kisilowski/. See, for example, “Poland: Authoritarian, Not Patriotic,” November 28, 2017. See also Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) at but efforts to undermine other oversight bodies are ongoing and some date from well before the current crisis. Any parliamentary system would have structural difficulties with independent oversight bodies because of parliamentary sovereignty.20)An overview of Hungarian and Polish oversight institutions as of 2005 is in Rose-Ackerman, 2005, pp. 55-99. Even in Poland, with its separately elected president, independent bodies are not always independent enough to provide effective oversight. Ombudsmen and Comptrollers General are single individuals reporting to the parliament. Even if they can only be removed “for cause”, they have fixed terms and budgets that depend upon the parliament. A supra-majority may be required to appoint a replacement, but that may leave the office vacant for an extended time.  Thus, in Hungary one ombudsman’s office remained vacant for months as parties vied to appoint a friendly candidate.21)Rose-Ackerman, 2005, p. 80-81.  Conversely, under one-party control, the government can appoint a pliable flunky, as has recently happened in Hungary, where previous incumbents had good reputations for independence.22)The ombudsman’s official name is the Commissioner for Fundamental Rights (Alapvető jogok biztosa). Eva Balogh “László Székely, the new ombudsman”, May 05, 2014, Hungarian Spectrum, http://hungarianspectrum.org/2014/05/12/laszlo-szekely-the-new-ombudsman/.  The comptroller is a Fidesz operative. See:  “Hungarian State Audit Office’s Assault on Democracy,” Free Press, January 9, 2018, http://hungarianfreepress.com/2018/01/09/the-hungarian-state-audit-offices-assault-on-democracy/ , and “Strangely the Hungarian State Audi Office is Satisfied with Air Quality,” Levegö Munkacsoport, January 30, 2018, https://www.levego.hu/en/news/magyarorszag-az-egyik-legrosszabb-levegoju-europai-orszag-de-az-asz-elegedett/

Multi-member bodies provide a stronger constraint on autocrats if terms are long and staggered, but the longer the autocrat stays in power the less of a constraint exists. Of course, the appointment process could be depoliticized with a committee of professionals selecting the members. This approach has been used to select judges in a number of countries, although here too the political and business connections of those on the committee can undermine its independence, and their influence may be opaque and hard for the public to counteract.

In short, the institutions for public participation and for independent oversight have serious weaknesses in both Hungary and Poland. Some of the weaknesses are structural and embedded in each country’s constitutional frameworks. Others are linked to the transition from the socialist past. In the transition from socialism, administrative law lacked a democratic imprimatur and could provide only a weak check on government policymaking. Natural law and the protection of rights provided important protections for individuals but did little to help create the institutions of a functioning regulatory/welfare state. Remnants of the past have created tensions. For example, public providers of health care and education have been under pressure as limited resources clashed with rising expectations, creating corrupt workarounds. The socialist governments’ undermining of civil society left Hungary and Poland with political parties but weak not-for-profit and advocacy sectors. Like most of Western Europe, labor unions only represent a minority of the workforce. Formal institutions of oversight such as ombudsmen and audit offices have, at times, provided checks, but they are vulnerable to capture by determined autocrats seeking to avoid oversight.

Germany with its strong national government and civil society organizations should have more space to push back against authoritarian tendencies, although its federal structure may lead to pockets of democratic authoritarianism that will be difficult to control. However, dissatisfaction with the transition has also been prevalent in eastern Germany where the laws of the Federal Republic were simply extended to cover the region. After reunification, bookshops in East Berlin stopped stocking Marx and added shelves of Federal Republic statutory texts so the new citizens would know the rules that now governed their lives. Even though the imposition of Bundesrepublik law went along with massive financial subsidies, resentment remained.23)Philip Oltermann “’Revenge of the East'? How anger in the former GDR helped the AfD”, The Guardian, Sepember 28, 2017, https://www.theguardian.com/world/2017/sep/28/is-germanys-election-result-the-revenge-of-the-east also: Steffen Kröhnert, Reiner Klingholz “Not am Mann: Von Helden der Arbeit zur neuen Unterschicht? Lebenslagen junger Erwachsener in wirtschaftlichen Abstiegsregionen der neuen Bundesländer“, (Berlin, Berlin-Institut für Bevölkerung und Entwicklung 2007). The Constitutional Court and the other specialized courts extended their jurisdiction to the East. The Basic Law was applied without formally promulgating a new constitution. Some analogize reunification to a takeover under which one legal system replaced another. However, that belief may be exaggerated. Stephen Jaggi argues that the revolutionary ideas of citizens’ movements in the East, as institutionalized in the Roundtable Draft Constitution, had an impact. He claims that the timing of the passage of Article 20a of the Grundgesetz, establishing environmental protection as an objective state goal, reflects that influence.24)Stephan Jaggi, The 1989 Revolution and Its Impact on Unified Germany’s Constitutional Law: The Forgotten Revolution? (Oxford: Nomos/Hart, 2016), pp. 162-170)) Although Article 20a was the only formal amendment with such a connection, his assessment of Constitutional Court decisions in the areas of land reform, gender equality, abortion, and housing finds that they incorporate ideas prominent in the East among opponents of the DDR regime into an “intergenerational synthesis” that helped to produce a unified German state.25) Id. at pp. 171-236. The concept of Intergenerational Synthesis derives from Bruce Ackerman, We the People, Foundations (Cambridge MA; Harvard University Press, 1991).

So far the European Union has been of little help in counteracting democratically chosen leaders with authoritarian platforms. Although a vote in the EU Parliament in September did condemn Hungary’s anti-democratic behavior by a two-thirds vote, the ultimate effect of that move remains in doubt.((Patrick Knight and Steven Erlanger, “Hungary’s Democracy in Danger, E.U. Parliament Decides,” New York Times, September 14, 2018. For more background see Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) (criticizing EU responses and suggest some legal responses). András Bozóki and Dániel Hegedűs “An externally constrained hybrid regime: Hungary in the European Union”, Democratization 25 (7): 1173-1189 (2018). They call Hungary a “hybrid regime” and argue that “the EU functions as both “regime sustaining” and “regime constraining”, is ways that are “regime legitimizing” for Hungary” p.1174. The actions that the EU might take—economic sanctions and limits on EU voting rights—are unlikely to have a major effect and might even backfire if they stoke local resentments. Those who voted for authoritarian leaders could vote them out under the right conditions, but those with power are working to make that difficult. The task for reformers is to make a space for candidates effectively to challenge incumbents, to enhance the role of oversight institutions, and to encourage public participation in policymaking. The goal is to move states toward institutions that evoke “constitutional patriotism” and that undermine demagogic appeals. This is not an easy task given the self-reinforcing nature of shifts toward authoritarianism. My hope is that those living through the troubling developments in Hungary, Poland, and Germany can provide some fresh ideas for a constructive way forward. Perhaps those regional experiences can also help worried liberal democrats in the Philippines, Brazil, and even the United States.

References   [ + ]

1. W. B. Yeats, “The Second Coming” 1928.
2. Sławomir Sierakowski, “Interview with Adam Michnik: Europe’s  New Eastern Question,” Political Critique, December 1, 2017,  http://politicalcritique.org/cee/poland/2017/ps-insider-interview-europes-new-eastern-question-slawomir-sierakowski-adam-michnik/. On the Alternative for Deutschland, Germany’s far right party, see: Jefferson Chase, “AfD: What you need to know about Germany’s far-right party,” Deutsche Welle, September 24, 2017, https://www.dw.com/en/afd-what-you-need-to-know-about-germanys-far-right-party/a-37208199. Countries from the United States under Donald Trump to Brazil under the forthcoming presidency of Jair Bolsonaro raise similar worries. See, for example:  Ernesto Londoño and Shasta Darlington, “Jair Bolsonaro Wins Brazil’s Presidency in a Shift to the Far Right,” New York Times, October 28, 2018, https://www.nytimes.com/2018/10/28/world/americas/jair-bolsonaro-brazil-election.html .
3. Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) at p. 26.
4. Jürgen Habermas, “Eine Art Schadensabwicklung. Die apologetischen Tendenzen in der deutschen Zeitgeschichtsschreibung, in: Historikerstreit. Die Dokumentation der Kontroverse um die Einzigartigkeit der nationalsozialistischen Judenvernichtung, (München, 8th edn., Piper 1991). The term was first used by Dolf Sternberger in 1979, and was developed  by Jürgen Habermas in a somewhat different sense. For an overview of the concept, its link to the German past, and its broader normative value  see: Jan-Werner Müller, „On the Origins of Constitutional Patriotism“ Contemporary Political Theory  5:278-296 (2006). For its role in constitutional debates in Poland see Dorota Szeligowska, The Dynamics of Polish Patriotism after 1989: Concepts, Debates, Identities, Ph. D. Dissertation, Central European University, Budapest, Hungary, 2104.
5. During his end of term speech on 18 January 2017, Gauck referred to Habermas’ concept of Verfassungspatriotismus: http://www.bundespraesident.de/SharedDocs/Reden/DE/Joachim-Gauck/Reden/2017/01/170118-Amtszeitende-Rede). He addressed the rising fear of right-wing tendencies and appealed to the society to stand up jointly to fight for the values enshrined in the constitution. He described Verfassungspatriotismus not only as a theoretic concept developed by scholars, but also as a concept of everyday reality (Lebenswirklichkeit). He also referred to the concept in his inaugural speech on 23 March 2013 (available here, in English:  http://www.bundespraesident.de/SharedDocs/Reden/EN/JoachimGauck/Reden/2012/03/120323-Swearing-In-Ceremony.html).
6. Guillermo O’Donnell, “Horizontal Accountability in New Democracies,” in Andreas Schedler, Larry Diamond, and Marc F. Plattner, eds., The Self- Restraining State: Power and Accountability in New Democracies (Boulder CO: Lynne Rienner, 1999).
7. See Maurizio Bussolo, Maria E. Dávalos, Vito Peragine, and Ramya Sundaraam, Toward a New Social Contract: Taking on Distributional Tensions in Europe and Central (Washington DC: World Bank Group, 20180) available at: http://documents.worldbank.org/curated/en/202171468299130698/Towards-a-new-social-contract, pp. 189-196 . Maps 4.1 and 4.2 on pages 192-193 document the way at-risk poverty measures correlate with votes for extremist parties in Hungary and Poland.
8. Susan Rose-Ackerman, From Elections to Democracy: Building Accountable Government in Hungary and Poland (Cambridge UK: Cambridge University Press, 2005).
9. But see, Demos, Nothing to Fear but Fear Itself (London: Demos, 2017) https://www.demos.co.uk/wp-content/uploads/2017/02/Nothing-to-Fear-but-Fear-Itelf-final-short.pdf . This British think-tank report on public attitudes, showed that Polish citizens have far more trust in the European Commission than citizens in France, Britain or Germany—almost 60% compared with 35-40%  (p.37). However, 60% of Poles distrusted their national governments, more than citizens of Germany and Britain (p.38). (The French were particularly distrustful of their government).
10. György Csepeli, Antal Orkény, Mária Székelyi, and Ildikó Barna, “Blindness to Success: Social Psychological Objectives Along the Way to a Market Economy in Eastern Europe,” in János Kornai, Bo Rothstein, and Susan Rose-Ackerman, eds., Creating Social Trust in Post-Socialist Transition (NY; Palgrave Macmillan, 2004) pp. 213-240.
11. Poland first made temporary amendments to the socialist constitution, called the Small Constitution of  1992 and then promulgated a new constitution in 1997, https://www.constituteproject.org/constitution/Poland_1997.pdf. On the socialist roots of the first post-transition Hungarian Constitution see Peteri Zoltan “Constitution Making in Hungary” Acta Jur. Hng. 36: 149 (1994), p.153.
12. On the socialist roots of the post-transition Polish Constitution see Daniel Cole, “Poland’s 1997 Constitution in Its Historical Context” (Indiana University Maurer School of Law, Paper 589, 1998) pp. 28-30.
13. Hungarian Constitution of 2011, https://www.constituteproject.org/constitution/Hungary_2011.pdf . See also András Bozóki and Dániel Hegedűs “An externally constrained hybrid regime: Hungary in the European Union”, Democratization 25 (7): 1173-1189 (2018).
14. Rose-Ackerman, 2005, pp. 64-70.
15. On the role of the Young Pioneers in GDR society see: Emmanuel Droit “From Identity to Appearances: Clothing and Political Identity in the GDR. The Case of the Young Pioneers' Neckerchief (1949–1989)” (Berlin, Revue d’histoire moderne & contemporaine. No. 59, Vol. 2(2
16. Rose-Ackerman, 2005, pp. 163-191; European Commission Country Report Hungary, 2010, p. 1,11,12 and Country Report Poland, 2010, p. 1.
17. The discussion here derives from Rose-Ackerman, 2005, pp. 131-137.
18. The latest official statistics of 2015 show only 9% of workers in unions. See Edit Németh; Rainder Girndt Zwischen Resignation und Aufbruch – Aktuelle Entwicklungen bei den ungarischen Gewerkschaften (Budapest:Friedrich Ebert Stiftung Studie 2018), pp. 1,7. In Poland membership is 10%  according to CBOS Polish Public Opinion Research Center, Trade Union Membership and Opinions about their activities  (2013), summary in English: https://www.cbos.pl/EN/publications/reports/2013/062_13.pdf , p.1; full report:  http://library.fes.de/pdf-files/bueros/budapest/14574-20180919.pdf , p.7.  These percentages represent a steep drop from 2002 when the percentages were estimated at 20-25% in each country (Rose-Ackerman, 2005, pp.131-137).
19. The developments are outlined in the blog posts of Maciej Kisiliowski in Politico. https://www.politico.eu/author/maciej-kisilowski/. See, for example, “Poland: Authoritarian, Not Patriotic,” November 28, 2017. See also Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) at
20. An overview of Hungarian and Polish oversight institutions as of 2005 is in Rose-Ackerman, 2005, pp. 55-99.
21. Rose-Ackerman, 2005, p. 80-81.
22. The ombudsman’s official name is the Commissioner for Fundamental Rights (Alapvető jogok biztosa). Eva Balogh “László Székely, the new ombudsman”, May 05, 2014, Hungarian Spectrum, http://hungarianspectrum.org/2014/05/12/laszlo-szekely-the-new-ombudsman/.  The comptroller is a Fidesz operative. See:  “Hungarian State Audit Office’s Assault on Democracy,” Free Press, January 9, 2018, http://hungarianfreepress.com/2018/01/09/the-hungarian-state-audit-offices-assault-on-democracy/ , and “Strangely the Hungarian State Audi Office is Satisfied with Air Quality,” Levegö Munkacsoport, January 30, 2018, https://www.levego.hu/en/news/magyarorszag-az-egyik-legrosszabb-levegoju-europai-orszag-de-az-asz-elegedett/
23. Philip Oltermann “’Revenge of the East'? How anger in the former GDR helped the AfD”, The Guardian, Sepember 28, 2017, https://www.theguardian.com/world/2017/sep/28/is-germanys-election-result-the-revenge-of-the-east also: Steffen Kröhnert, Reiner Klingholz “Not am Mann: Von Helden der Arbeit zur neuen Unterschicht? Lebenslagen junger Erwachsener in wirtschaftlichen Abstiegsregionen der neuen Bundesländer“, (Berlin, Berlin-Institut für Bevölkerung und Entwicklung 2007).
24. Stephan Jaggi, The 1989 Revolution and Its Impact on Unified Germany’s Constitutional Law: The Forgotten Revolution? (Oxford: Nomos/Hart, 2016), pp. 162-170)) Although Article 20a was the only formal amendment with such a connection, his assessment of Constitutional Court decisions in the areas of land reform, gender equality, abortion, and housing finds that they incorporate ideas prominent in the East among opponents of the DDR regime into an “intergenerational synthesis” that helped to produce a unified German state.(( Id. at pp. 171-236. The concept of Intergenerational Synthesis derives from Bruce Ackerman, We the People, Foundations (Cambridge MA; Harvard University Press, 1991).
25. Id. at pp. 171-236. The concept of Intergenerational Synthesis derives from Bruce Ackerman, We the People, Foundations (Cambridge MA; Harvard University Press, 1991).

So far the European Union has been of little help in counteracting democratically chosen leaders with authoritarian platforms. Although a vote in the EU Parliament in September did condemn Hungary’s anti-democratic behavior by a two-thirds vote, the ultimate effect of that move remains in doubt.((Patrick Knight and Steven Erlanger, “Hungary’s Democracy in Danger, E.U. Parliament Decides,” New York Times, September 14, 2018. For more background see Laurent Pech and Kim Lane Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU” Cambridge Yearbook of European Legal Studies 19: 3-47 (2017) (criticizing EU responses and suggest some legal responses). András Bozóki and Dániel Hegedűs “An externally constrained hybrid regime: Hungary in the European Union”, Democratization 25 (7): 1173-1189 (2018). They call Hungary a “hybrid regime” and argue that “the EU functions as both “regime sustaining” and “regime constraining”, is ways that are “regime legitimizing” for Hungary” p.1174.

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