Editorial Comment: “The Rule of Law and its Crisis – Is it Time for Europe’s Leaders to Make Up Their Minds?”
Something is rotten in the heart of Europe. A supranational organisation based on the maxim of ´integration through law’ is currently witnessing the erosion of judicial institutions in some of its Member States. What began as a Hungarian oddity in 2010 has turned into a full-blown crisis of the rule of law touching the very soul of European integration and eventually undermining the institutions through which it operates. There appears to be no end in sight. So far, the most significant reaction in support of the rule of law is coming from other judicial institutions, mostly the Court of Justice of the EU, but the political leadership seems to willingly ignore that the roof of the house is on fire.
In 2018 the Court of Justice ruled that a systemic breach of judicial independence can lead to the suspension of criminal judicial cooperation among national courts (LM (C-216/18 PPU)). The judgment resulted from a reference of an Irish court questioning whether it was under a duty to enforce a European Arrest Warrant issued by a Polish court. A year later the Court of Justice ruled that lowering the retirement age of Polish judges breached EU discrimination law and the principle of judicial independence in Article 19 TEU (Commission v Poland (C-619/18)). The ruling was preceded by an order of the Vice-President of the Court of Justice ordering the Republic of Poland, inaudita parte, to halt its judicial reforms prior to the Court of Justice’s ruling. In November 2019 the Court of Justice rendered its latest judgment on the Polish saga, overruling the creation of a disciplinary chamber in the Polish Supreme Court (AK (C-585/18)). The case law is now coming full-circle and it is conditioning the interpretation of other key provisions of the Treaties, like Article 267 TFEU, governing the conditions that national jurisdictions must comply with to make preliminary references (Banco Santander(C-274/14)).
This case law results from a combined effort of Polish courts requesting preliminary rulings and the European Commission launching infringement procedures against the Republic of Poland. The result is an unprecedented body of case law with the aim of preserving the rule of law, irrespective of any transfrontier link or connections with areas of EU policy. Needless to say, this case law has taken procedure and substance into new grounds, pushing the paradigm of integration through law into unchartered waters. Article 2 TEU has now indirectly become a judicially reviewable provision, thus providing a novel remedy that walks together with the political enforcement tools of Article 7 TEU, which was originally conceived to keep courts away from situations of serious breach of the values of the EU. Not anymore.
However, it would be naïve to confine the rule of law crisis to a judicial conundrum in a Member State. Not only because a similar evolution has taken place in Hungary, but mostly because the attacks on the Polish and Hungarian judiciaries suggest there is a trend that goes beyond judicial policy. The rise of populism and authoritarian leadership is undermining the quality of democracy and the rule of law throughout western society. A combination of ill-bred messages with a poor link to veracity, together with a victimising rhetoric and the manufacture of a convenient enemy, has turned autocratic populism into a global movement destabilising the very heart of liberal democracies. It is in this context that the attacks on independent judiciaries have propagated throughout the world, including Europe.
After two years of case law and rulings from Luxembourg, is there any sign that the rule of law crisis is receding? Not really. The European Popular Party’s mild reaction to Fidesz’s membership (combined with Viktor Orbán’s support of Ursula von der Leyen’s nomination and new college of Commissioners), seems to have emboldened the Polish government into launching a new round of attacks against judges, irrespective of the Court of Justice’s rulings. Early this year the Polish President hit back in a televised interview, criticising ´foreign lawyers´ and accusing the Court of Justice of lacking legitimacy to rule on these cases. In early February new legislation came into force in Poland targeting judges that simply comply with their duty to ensure judicial independence as interpreted by the Court of Justice. In light of these recent developments, it is obvious that the Commission and the Court’s recent decisions have not humbled the Polish and the Hungarian governments nor their ruling parties.
The rule of law crisis is an existential threat for the EU in which lawyers play an important role. Law is a means through which pluralistic societies channel their competing interests through democratic procedures. The role of law in pluralistic societies is not only confined to the settlement of disputes, but it must also govern the terms under which complex polities reach agreements for the benefit of the community at large. Law sets limits to the government’s powers, but it also sets the trail that leaders must follow in reaching consensus and building majorities. The rule of law is not a goal in itself, but rather an instrument of fundamental relevance, like a computer’s operating system, that allows our liberal democracies to function properly. Policy-makers, judges and lawyers must ensure that the rule of law functions correctly, or look the other way at their own peril.
However, countering the attacks against the rule of law through court action will not stop the crisis from spreading. The attack on judicial independence (or academic freedom, as is also the case in Hungary) is only one step in an ambitious populist strategy that looms large over our future. It must be contained through courts, indeed, but also through a brave political stance in support of our cherished but fragile democracies. The fall of the Berlin wall gave the West a sense of superiority that proved to be naïve and misleading. It is time to wake up and realise that our democracies are under attack. This challenge requires a response from all institutions in a combined effort to counter exclusionary nationalist discourses, racism and xenophobia, criminalisation of minorities and the rise of false information about crucial developments for humanity, like climate change or the demographic challenge.
The actions of the Court of Justice, together with that of national courts and the support of the Commission’s legal service, have provided a robust first reaction against the serious attempts to undermine the rule of law in two Member States. It is now high time for the political institutions of the European Union and in the other Member States to rise to the challenge and follow the lead. The path has been set and the legal tools are ready, but the journey leading us into this daunting task must be led by our political leaders, not by courts. History provides too many examples, in both the distant and recent past, of the price we all pay when leaders refuse to stand up and leave the task to others. In fact, the EU is the direct result of the suffering and catastrophe that resulted from that kind of short-sighted strategy. It is time for Europe’s leadership to make up its mind and fearlessly confront what could become the EU’s vilest, and eventually lethal, political crisis.
By the Editorial Board of EU Law Live.