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The Struggle for Common Legislation

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The Struggle for Common Legislation 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 Heidelberg, 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 Romania 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 26 MaxPlanckResearch 1 | 19 FOCUS_Europe A test of strength in Poland: EU Commission in 2014. Such a dia- As a fourth option, there are procedures the government of Jarosław log ue 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 dialog ue 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.
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