Dimitry Kochenov, Petra Bárd, The Last Soldier Standing? Courts vs. Politicians and the Rule of Law Crisis in the New Member States of the EU (original) (raw)
Related papers
1 European Yearbook of Constitutional Law, pp. 243–288., 2020
The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.
1 European Yearbook of Constitutional Law, 2019 (in press)., 2019
The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.
The Rule of Law as a Pivotal Concept of the EU’s Politico-Legal Order
Justinianus Primus Law Review (2020) Volume XI Issue 1 (indexed in EBSCO and HeinOnline)
Abstract: In recent years, EU Member States like Poland, Hungary, Romania and Malta have experienced various kinds of rule of law backsliding processes that have threatened to gradually erode these countries’ democratic institutions established under the rule of law. The persistence of rule of law eroding trends has become a compelling post-accession reality for these Member States (which joined the EU in 2004 and 2007), arguably undermining and being in open breach of the EU’s fundamental values - most pressingly and most acutely, the rule of law. While this paper does not aim to pinpoint the causes and factors that have led to the foregoing regressive trends, its goal is rather to look in a more conceptual manner at the rule of law as an overarching principle underpinning the EU’s legal and political order. The paper will also examine the mechanisms the European Union has at its disposal in confronting the value erosion trends and inspect to what degree these mechanisms can be considered effective in tackling the rule of law backsliding processes. http://lawreview.pf.ukim.edu.mk/wp-content/uploads/2020/08/1.-Ilina-Cenevska.pdf
In courts we trust, or should we? Judicial independence as the precondition for the effectiveness of EU law, 2022
The present article argues that the EU possesses an arsenal of tools to address dissuasively rule of law problems in the Member States. This shows the double nature of the EU's separation of powers problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmental powers, there is a risk of the crumbling of separation of powers at the EU level, too, where institutions fail to adequately address rule of law violations. Against the EU institution's lack of forceful action towards rule of law backsliding, domestic courts try to protect judicial independence increasingly via preliminary references. Also, they attempt preventing the proliferation of the consequences of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This article explores to what extent preliminary rulings can make up for the failure to use adequate EU tools of rule of law enforcement. 1 | RULE OF LAW DECLINE IN THE EU 1.1 | Rule of law decline in the national setting is an EU matter On the question whether there was such a thing as a 'European tradition', Winfried Hassemer, then vice president of the German Federal Constitutional Court, contended that Europeanness had an autonomous meaning: it is envisaged as 'a community of values ("Wertegemeinschaft"), representative of a certain tradition, which has created
RECONNECT Working Paper No.1, 2018
The European Union and the Member States seem to be doing as little as they can against rule of law backsliding in some of the EU's constituent parts. Each of the EU institutions came up with their own plan on what to do, inventing more and more new soft law of questionable quality. All that is being done by the institutions seems to reveal one and only one point: there is a total disagreement among all the actors involved as to how to sort out the current impasse. This inaction helps the powers of the backsliding Member States to consolidate their assault on EU's values even further. The core question is how to ensure that the EU's own rule of law be upheld. Authors argue that the most mature answer to the problems should necessarily involve not only the reform of the enforcement mechanisms, but the reform of the Union as such, as supranational law should be made more aware of the values it is obliged by the Treaties to respect and aspire to protect both at the national and also at the supranational levels. EU law should embrace the rule of law as an institutional ideal, which implies, inter alia, eventual substantive limitations on the acquis of the Union, as well as taking EU values to heart in the context of the day-to-day functioning of the Union, elevating them above the instrumentalism marking them today.
The EU's rule of law: work is needed,
The EU's rule of law: work is needed, 2021
One of the European Union's main values, the rule of law, is under severe pressure. The cases of Hungary and Poland, albeit not isolated, are certainly the most paradigmatic ones. The two eastern European countries, in fact, do not wish to leave the EU, but repeatedly challenge the EU's rule of law ideal by claiming that different interpretations of it are possible and that illiberal democracies can co-exist with liberal ones within the EU constitutional framework. The recent EU budget negotiations again brought the question into the spotlight with the so-called conditionality regulation, whereby Hungary and Poland are legally bound to accept an EU role in the rule of law and yet simultaneously attempt to restrict an EU role in the rule of law, via the European Council. These recent developments call for an analysis of the (evolution of the) principle of the rule of law in the EU, as well as an overview of how Hungary and Poland (in the meantime) have changed the actual situation of the rule of law domestically and of the strategies that the two countries have devised to further counter (legal) intervention by the EU.
Journal of Constitutional History, 2022
Historically and constitutionally, the rule of law has always been a contested concept. But can we really posit that it is contested in the context of EU law? And if it is a contested concept there as well, then what is the exact nature of the contestation? The aim of this article is to answer these two questions. It will first look at the evolution of the concept of the rule of law in EU law from the early years of European integration to its most recent manifestations. To better understand its constitutional development, a comparison will be made between the doctrine of the rule of law and the doctrine of general principles. Secondly, we will analyse the nature of the present contestations, which take the form of the rule by law in "illiberal democracies" such as Hungary and Poland. Notably, we argue that the rule by law imposed by these illiberal States on their citizens constitutes not only the main source of contestation of the doctrine of the rule of law in the EU but also the main source of the evolution of that doctrine. In other words, the application by illiberal States of rule by law actually fosters the concretisation of the rule of law in the EU legal order.
EU Fundamental Values and Rule of Law Crisis : the Polish Case
This work aims to explore the significance of EU fundamental values and the legal mechanisms envisaged by Treaties for their defence. Alleged systemic breaches of latest years have seriously endangered the legal edifice of the European Union. Presumption of adherence to EU values, to which the Member States are committed, is nowadays at risk. Therefore measures are required to restore legality and safeguard Rule of Law at European Level. Against this background, it is our purpose to study the case of Poland. First, we will reconstruct the jurisprudential root of values entrenched in Article 2 of TEU while underscoring the "juridification task " of ECJ. In a later stage, we will present the set of instruments at the disposal of European institutions when confronted with the rule of law crisis. Ultimately we will describe the challenges set by Polish Authorities to the rule of law.
Verfassungsblog, 2019
The European Commission’s strategy for the Rule of Law was published just a few weeks after the CJEU’s seminal judgment in Commission v. Poland. Consequently, the time of its publication coincided with the judicial confirmation of the sad reality that the departure from the liberal democracy standards in both Hungary and Poland cannot be define as moderate anymore and that the judicial independence in both countries is at stake. Is a soft law instrument the right object of assessment in a situation where most commentators on the ongoing rule of law crisis summarise previous EU actions with the statement: too late, too long, too mild? This piece offers a look at the July blueprint for action as a political declaration which provides important general statements regarding the concept of the rule of law within the EU legal system in times of democratic backsliding in Member States. Starting with a discussion about the scope of the rule of law principle in the EU and an argument against its enforcement, this blog post will analyse the potential of the current rule of law crisis to mark a unique historical change in the European constitutionalism, both on the EU and national level.