The struggle for common legislation

The European Union is not only an internal market, it is also a shared legal space. However, ideas about what constitutes a state under the rule of law are drifting further apart. For some time now, Poland and Hungary in particular have been defining their own rules. Armin von Bogdandy, Director at the Max Planck Institute for Comparative Public Law and International Law in , is conducting research into this “constitutional crisis” and the possible responses that can be made by the EU. FOCUS_Europe

Under the banner of the law: judgments passed by the European Court of Justice play an important role for the rule of law in Europe. With the Latin term curia, which stood for the judgment of the king in the Middle Ages, the Court of Justice places itself firmly in the European tradition.

TEXT CHRISTIAN RATH

he EU is a community based implemented was one reason for the Recently, the government attempted to on the rule of law. The inter- dramatic financial situation in Greece,” bring the Supreme Court of Poland nal market would barely be von Bogdandy explains. The country’s into line and to dismiss Małgorzata able to function if there were administration is regarded as non-trans- Gersdorf, the President of the Supreme no common rules. National parent, bloated and corrupt. Court, who had refused to bow to the authoritiesT apply European rules, while and Bulgaria, which joined government’s will. national courts monitor their applica- the EU in 2007, also have significant Armin von Bogdandy is a key figure tion. The European Court of Justice problems. At that time, the judicial in the discussion surrounding the safe- (CJEU) is only involved in cases of system was not capable of acting effec- guarding of EU rule of law. In particu- doubt or conflict. tively against organized crime and cor- lar, he develops arguments and legal Over the last 20 years, close collab- ruption. For this reason, both states concepts as a reminder of the basic val- oration has developed between the had to commit themselves to a man- ues of the EU, especially for the states courts and the investigative authorities. datory monitoring process. Every year, that are drifting away from them. Judgments are being mutually recog- the EU Commission writes a report on According to von Bogdandy’s central nized. Police forces are assisting each judicial reform and the fight against theory, “The EU must take action wher- other. Extraditions within the EU have corruption. In most cases, these re- ever there are systemic deficiencies.” By been made much simpler thanks to the ports are not encouraging. this, he does not mean problems that oc- European Arrest Warrant. For all this to cur occasionally. “A systemic deficicien- work, there has to be mutual trust be- TRUST IN THE JUDICIARIES OF cy is said to exist when trust in the law tween the EU states, since equivalent THE OTHER STATES IS KEY and its enforceability is lost in import- rule of law standards apply and are up- ant areas.” Here, von Bogdandy means held everywhere. However, these problems have long not just the application of EU law, but Article 2 of the Treaty on the Euro- been dwarfed by the disputes with Hun- also of purely national law. Trust in the pean Union lists the basic European gary and Poland. Since 2010, Viktor law and its institutions is important for values: “the respect for human dignity, Orbán has been transforming Hungary citizens and companies doing business freedom, democracy, equality, the rule into what he himself calls an “illiberal and planning their lives. Trust is funda- of law and respect for human rights.” It democracy.” The government is pursu- mental to the EU, which specifies rules is claimed that these characterize the ing the goal of expanding its influence for the Member States and in some cas- EU and are shared by “all Member over the media, educational institu- es also transfers considerable sums of States”. But is that really the case? tions and also the courts. money. Trust is also necessary when Armin von Bogdandy, Director at the In Poland, the governing PiS party Member States cooperate with each oth- Max Planck Institute for Comparative under Jarosław Kaczy´nski has been at- er on police and judicial matters. In von Public Law and International Law in tempting to bring the judicial system Bogdandy’s view, it is difficult for the EU Heidelberg, has his doubts. For about under its control since 2015 by intro- to function as a community based on ten years now, he has been researching ducing numerous new laws. It has made the rule of law if there are systemic defi- the “EU constitutional crisis and the rule sure that the majority of judges on the ciencies in individual states. of law.” How can Europe function as a Polish constitutional court are pro-gov- Some time ago, he presented an ar- community based on the rule of law ernment. The Council for the Judiciary, gument on handling systemic deficien- when the Member States themselves which appoints the Polish judges, is cies in the application of the rule of law. have difficulties with the rule of law? now also controlled by the political In exceptional cases, EU citizens should States with weak institutions, such majority. The Minister of Justice can be able to assert claims to the European as Greece, are problematic. “The ineffi- also replace all presidents of the dis- protection of fundamental rights either

Photo: Reuters ciency with which Greek tax law was trict, regional and voivodeship courts. in the national courts (if they are still

1 | 19 MaxPlanckResearch 25 independent) or directly at the Euro­ vidual EU citizens have a right to a “Eu- and the German judge at the European pean Court of Justice. Armin von Bog- ropean safety parachute of fundamen- Court of Justice for Human Rights in dandy talks of a reversed “Solange” tal rights,” according to von Bogdandy. Strasbourg, Angelika Nussberger, are also doctrine, referring to a decision made Since the CJEU has not yet adopted members. In 2018, the subject of discus- by the German Federal Constitutional this concept, it has to date remained sion was “Mutual trust in the European Court in 1986. At that time, the court nothing more than a much-discussed legal space.” This is an opportunity for in Karlsruhe decided that it would not academic recommendation. von Bogdandy to discuss his research re- monitor EU legal files for compliance In 2016, von Bogdandy also found- sults directly with key stakeholders and with fundamental rights “solange”, or ed the “Heidelberg Discussion Group on to present these results to them. “so long”, as the CJEU guaranteed a the Multilevel Cooperation of Constitu- However, what concrete measures largely equivalent protection of funda- tional Courts” (“Heidelberger Gesprächs- can the EU take if there are problems mental rights. Conversely, this means kreis Verfassungsgerichtsverbund”) to- in individual states? Currently, there that the institutions of each Member gether with high-ranking individuals are four measures in particular that State are themselves responsible for the such as Andreas Vosskuhle, President of can be considered. national protection of fundamental the German Federal Constitutional The lowest-level measure is to initi- rights outside EU law contexts – so Court. In this group, scientists debate ate a dialogue process. This is based on long as they protect the essence of with constitutional judges and European an “EU framework to strengthen the these fundamental rights. If not, indi- judges. CJEU President Koen Lenaerts Rule of Law” that was approved by the

On principle, EU citizenship encompasses an entitlement to a European

» safety parachute for fundamental rights. Photos: picture alliance/dpa (left), alliance/NurPhoto

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A test of strength in Poland: EU Commission in 2014. Such a dia­ As a fourth option, there are procedures the government of Jarosław log­ue encompasses three phases. First, at the European Court of Justice that Kaczy´nski (far left) has been attempting to bring the the EU Commission performs an anal- are initiated by national courts. At issue judiciary under its control ysis of the situation, in which it defines here is whether a court in one state can since 2015. Małgorzata the problems. It discusses these with still collaborate judicially with a prob- Gersdorf (large image), the the state in confidence. If the problem lematic Member State. Here, trust in the President of the Supreme cannot be solved quietly, the Commis- other state’s application of the rule of Court, was due to be forcibly retired in July 2018 but sion issues public recommendations law plays a key role. Can a citizen be ex- refused to give up her seat. and sets deadlines by which they must tradited to this state if they are charged be implemented. During the third with a criminal offense there? This is a phase, the Commission checks wheth- tricky question for the CJEU. If it pro- er the recommendations have been fol- hibits extradition because treatment ac- lowed and draws corresponding con- cording to the rule of law is not guar- clusions. Apparently, von Bogdandy’s anteed in the destination state, this ideas were an important inspiration for might help the person affected but will this dialog­ue process. However, the pro- damage European cooperation in the cedure does not provide for sanctions. fight against crime. If it approves the The EU Treaty (Article 7) for the EU extradition, it is in effect closing its eyes Council of Ministers, the body of the to the problems relating to the rule of Member States, has more powerful law in the country in question. tools at its disposal. With the agree- ment of 80 percent of its members, the POLAND AND HUNGARY Council can determine a “clear risk of SUPPORT EACH OTHER a serious infringement” of EU basic values. This is intended as a type of fi- For Armin von Bogdandy, the question nal warning. In the next step, the of whether or not these measures are ef- Council can determine that there is “a fective in the short term is by no means serious and lasting infringement” of decisive. For him, the main point is EU basic values. This resolution must that the EU does something and re- be unanimous (excluding the state in sponds to systemic deficiencies. “Here, question). If this hurdle is cleared, cer- the vast majority of the EU states can tain sanctions such as the loss of vot- draw a red line and define themselves ing rights can be initiated provided in the club.” In this way, he says, a sit- there is a qualified majority. While uation can be prevented whereby the harsh sanctions are possible, this pro- understanding of the rule of law in cedure is also strongly politicized. As questionable states comes to be regard- soon as two states agree to close ranks, ed as different but of equal value. there is almost no possibility of intro- Over the past three years, the strug- ducing sanctions. gle for the independence of the Polish The third option consists of in- courts has intensified. It is now regard- fringement proceedings, which can in ed as a litmus test for the ability of the turn be initiated by the EU Commis- EU to uphold rule of law structures in sion. The Commission can file a suit the Member States. This case can also against individual Member States at the be seen as an example of what the tools CJEU. Here, the matter in hand is not the EU has at its disposal can achieve the general situation, but individual in practice. laws. These procedures are often effec- Poland was in fact the first state tive, since states that fail to comply with which the EU Commission con- with CJEU ordinances and judgments ducted a dialogue over the rule of law. are threatened with substantial finan- From January 2016 to December 2017, cial penalties. On the other hand, such the EU Commission issued four recom- procedures frequently remain technical mendations to Poland, each referring and non-political, since they do not to different laws. However, from the openly address the development of au- viewpoint of the EU Commission, the thoritarian ruling structures. recommendations went unheeded. >

1 | 19 MaxPlanckResearch 27 Left A speaker in demand: Armin von Bogdandy is also active in eastern European countries with regard to the discussion surrounding the rule of law in the EU. Here, he is seen at a conference in Budapest. Below Waiting it out together: according to the EU Treaty, the Council of Ministers has the option of determining a “clear risk of a serious infringement” of the EU basic values by Poland. To date, the members have not reached such a conclusion.

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A situation must be prevented whereby the understanding of the rule of » law in questionable states is regarded as different but of equal value.

The EU Commission therefore applied than in cases of everyday crime. In this fact creating the rule of law by remov- to initiate the Article 7 procedure in the way, the Court of Justice cleverly avoids ing judges from the communist era to- fall of 2017. However, the EU Council having to make its own assessment of gether with corrupt party members from of Ministers has yet to pass a resolution conformity to the rule of law in Poland the previous civic government. Poland on this matter. A removal of Poland’s by transferring responsibility for the and Hungary also claim that they are ac- voting right appears almost impossible, analysis to the national courts. cused of having structures that have since Poland and Hungary have assured never been contentious in other states each other that they would each pre- STRENGTHENING SELF-HEALING such as , such as the election of vent a unanimous resolution against POWERS WITHIN THE COUNTRY judges by political committees. the other state. Armin von Bogdandy is glad that in At the same time, the EU Commis- Armin von Bogdandy says that he is such debates there are also independent sion has initiated two infringement unable to predict whether or not the ef- bodies such as the proceedings due to the reform of the ju- forts made by the EU in Poland will be of the working along- diciary in Poland. The second legal ac- successful in the long term, and which side the EU institutions. This commis- tion filed in September 2018 has at- tools could be the most effective. He sion is a committee of experts that ad- tracted particular attention; it pertains says that he is neither a political scien- vises states on constitutional issues and to the reduction of the pensionable age tist, nor is he sufficiently familiar with also assesses them. It has explicitly crit- for judges on the Polish Supreme Court. Polish domestic politics. icized the restructuring of the judicial This reduction means that 27 of the 72 For the Director of the Max Planck system in both Hungary and Poland. acting judges could be forced to retire, Institute in Heidelberg, it is important However, for von Bogdandy, the pur- including President Gersdorf. not only to research the situation in pose is not so much to enforce govern- At the end of October, the CJEU, on Hungary and Poland from afar, but also ment compliance from the outside. First behalf of the Commission, issued an in- to work with academics and judges and foremost, he wants to strengthen terim injunction against this proposal. from these countries in order to formu- the self-healing powers in the country As a result, the judges affected were able late questions and develop assessments. in question. “If the EU insists on a judi- to return to work. One month later, the In 2017, for example, he held a confer- cial system that is independent and Polish parliament, the Sejm, summarily ence in Warsaw. based on the rule of law, this is certain- passed a law that largely revoked the re- At the same time, however, he warns ly acknowledged in the state affected.” form. The EU thus proved that it has the against regarding the problematic EU For him, it is a good sign that at the stronger arm, at least in individual cases. states merely as objects of EU measures. CJEU, nine judicial referrals are already During 2018, the CJEU also consid- “These countries have their own point pending from Poland with issues relat- ered the extradition of criminals to Po- of view, which we should listen to and ing to the Polish judicial reform. land. In one case presented by the Irish assess carefully.” High Court, the CJEU recommended a In the case of Poland, for example, www.mpg.de/podcasts/europa two-stage approach. First, national the PiS government claims that it is in (in German) courts should examine whether there is a risk to the independence of the judi- cial system in Poland as a whole. The SUMMARY Article 7 procedure that has been initi- l Through political interventions, Poland and Hungary are threatening to undermine ated could provide important informa- the independence of the judiciary and thus the EU rule of law. tion in this context. In the second step, l The EU has several ways of responding to this. The most effective ones appear to it must be checked whether this risk be infringement proceedings arising from specific laws that constitute an infringe- might have an impact on the specific ment of EU law.

case. Here, the CJEU takes account of l In the long term, the EU will only be successful if it strengthens the self-healing the fact that the risk of an unfair trial is powers in the Member States affected.

Photos: shutterstock (above), The Council of the European Union/Enzo Zucchi (below) higher in politically controversial cases

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