The EU must defend its rule-of-law revolution

A recent EU court ruling has sent a chill down the spines of populist governments determined to undermine judicial independence. The new Commission must defend this crucial victory.

The recent battle for the European Union’s top jobs revealed an important truth: the main concerns of European populists today are not a two-tier Europe, prospects of deeper integration or German hegemony, as commonly supposed.

What they worry about most are the instruments and procedures designed to safeguard the bloc’s rule-of-law system.

There is no other explanation as to why the Visegrad Four countries of Poland, Hungary, Czech Republic and Slovakia joined with Italy to pave the way for a German federalist to become president of the European Commission despite their past calls for an end to Germany’s domination. All five nations are governed by anti-liberal, populist or far-right parties.

Also, the Central and Eastern European governments gave up on actively pushing for an Eastern European candidate for one of the top positions — although they have always rightly argued that a regional balance would be a must.

Both goals were sacrificed for the sake of a single overarching priority: to prevent the nomination of Frans Timmermans, who is synonymous with the EU’s new determination to fight rule-of-law violations.

The triumphalism of the populists may be premature as Timmermans is likely to remain vice-president of the Commission. But how EU institutions address internal rule of law problems of member states has become a key battleground over the future of the EU. 

EU ‘toothless’ no more

The concerns of the populist governments are not unfounded. In the last 12 months, the EU experienced a veritable rule of law revolution which contradicts the enduring narrative that the EU is toothless when its member states systematically violate its fundamental values and principles (including rule of law). 

Just a few days before the decisions were taken about the future EU leadership, the Court of Justice of the European Union (CJEU) issued a landmark verdict. 

On June 24, it ruled that Poland’s “Law on the Supreme Court”, which lowered the retirement age of judges on the Supreme Court, was contrary to EU law and breached the principle that the judges cannot be removed and thus the principle of judicial independence. 

It is the first verdict in the history of European integration in which the CJEU overruled, upon the request of the European Commission, national legislation on the judiciary by invoking the key principle of rule of law. 

After long debate, this verdict ultimately puts in place a de facto new mechanism to tackle rule of law violations with the Commission and the CJEU the key players. It is such real power that so scares those who play with authoritarian ideas. 

Given the backlash from populist forces across Europe, however, it remains to be seen if this breakthrough can be defended. It will be the responsibility of the new Commission as well as the pro-European member states and political families to make sure the new system is safeguarded and used to prevent the collapse of the EU legal system in the future.

Although rule of law is one of the EU’s fundamental principles, judicial systems are a matter of national competences not regulated by EU law. This is why the EU institutions — most notably the Commission — had never before addressed these issues.

Hungary is a good example. When Orban was dismissing judges of the constitutional court by lowering their retirement age in 2012, the Commission accused his government of violating the principle of non-discrimination of the elderly, which is protected by EU law.

In 2015, the right-wing populist Law and Justice party (PiS) won power in Poland and followed in Orban’s footsteps by subjugating the Constitutional Court, taking control over key institutions in the independent judicial system, arbitrarily removing judges and attacking the Supreme Court.

The Commission’s response, through dialogue and the threat of sanctions (in December 2017 the Commission opened the so-called Article 7 procedure asking EU members to declare “a severe risk of violation of EU fundamental principles” in Poland), proved fruitless.

By April 2018, Poland had largely completed the overhaul of its judicial system, abolishing the separation of powers. 

The breakthrough that subsequently took place did not require treaty changes. It took only the thoughtful application of existing treaty provisions.

Already in February 2018, the CJEU stated in a verdict that “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection”.

The court argued that it had the right to assess whether this was the case. Legally and politically, this was a milestone.

After the Commission used this avenue in July 2018 by opening the infringement procedure over Poland’s Law on the Supreme Court, the CJEU let the Polish government stop the implementation of the law until the final verdict.

PiS did not even await the judgement, which was announced on June 24. In November 2018, it changed the controversial provisions of the Law on the Supreme Court and cancelled the forced retirement of judges.  

Bitter battle looming

That systemic violations of rule of law can be halted (non-compliance with CJEU verdicts entail severe financial penalties) was a powerful lesson that did not go unnoticed elsewhere in Europe.

Orban recently suspended plans to introduce a new parallel administrative courts system. And the Romanian government abandoned plans to interfere with the work of courts.

In March 2019, the Commission opened a new infringement procedure against Poland — this time because of the new disciplinary system for judges which grants enormous powers to the minister of justice and institutions controlled by the government.

No wonder the European populists resent Frans Timmermans so much. As Vice-President of the Commission, he was the key architect of this new approach. 

The EU rules-based system will not survive if the separation of powers in member states is done away with. We should brace ourselves for a bitter battle over the legitimacy of EU institutions to defend this principle.

This is particularly true for the nominations of new EU Commissioners by the member states. The European Parliament (which has to approve the commissioners) will have a crucial role to play.

In hearings in the European Parliament, all candidates should be asked about their approach to the protection of fundamental EU values. The EP and the new President of the Commission must make sure that the Commission does not include members who question the approach first applied in the Polish case.

The achievements of the last 12 months must not be reverted. This also requires strong backing from pro-European political families and like-minded governments determined to avoid the collapse of the EU. 

This article originally appeared on 11 July in Balkan Insight.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.


Head, ECFR Warsaw
Senior Policy Fellow

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