by admin | Sep 22, 2023 | European values
As in my previous blog post I tried to make a brief comment about some of the different views (or progress) of the rule of law principle/value, in that article, I did not write about the French system since it has a separate set of values at its foundation: Constitutionalism. So, in this article, I am going to review what constitutionalism is, how the French system is built up, and what type of challenges constitutionalism has to deal with nowadays, thereto I will also make a summary of the Polish crisis since this comparison duly illustrates the conflicts on the Global North (used as a term of reference describing a complex social, economic and democratic “coalition”) about such principles as the rule of law and constitutionalism. Articles about Poland are getting more actual these days since there will be elections soon this year, where a core question will be whether and if so how they can restore Poland’s rule of law.
Constitutionalism has had its own, serious challenges in the last decade (just like the rule of law and democracy), both globally and on a regional level. In this short article, I cannot thematize all of them, but I would highly recommend Nóra Chronowksi’s book about the constitutional challenges in the 21st century, in which the author presents numerous challenges, such as the interconnection of constitutionalism with globalization, with particular reference to the conflicts of the relation between the human rights and business, to the European processes we went/are going through right now, and with special focus on the Hungarian system.
It is important to have such a discussion about these fundamental principles like the rule of law or constitutionalism, since in the second half of the 20th century – after the two world wars – these values were meant to be strengthened, but now at the beginning of the 21st century, we can observe a stagnation and a decline. This statement is supported, among others, by the 2020 Freedom House report which states that 75% of the world’s population detects a deterioration or decline in democratic processes, a democratic erosion that has been observed since approximately 2006 according to this report. This duly illustrates the crisis of the perception of the democracy that has dominated Western societies in recent decades.
For starters, I define what I mean when I talk about the concepts of constitution and constitutionalism, and how they connect to my research topic: the rule of law. The literature on constitutionalism often looks at this value from a positive legal standpoint. From this view, the constitution is a legal norm that regulates the essentials of the state’s political and constitutional structures and apparatus and provides for constitutional rights and the basics of states’ social and economic system or even less. However, I think it is to include much more than only that. The same applies to the rule of law and constitutionalism. We cannot look at important principles only in a formalistic approach. Formalism is not enough, since these principles shape our everyday lives and the functioning of our countries. Constitutionalism is not only about form, but it does also have a material aspect as well. Just like the rule of law, constitutionalism has its own fundamental principles (some of them are common and interconnected) and it does have to prevail in the legal system. When we are talking about the constitution we must think about a piece of legislation that is (i) capable of limiting and effectively checking the exercise of public power, (ii) to defend and respect the citizens and their human and other constitutional rights, equally. We cannot talk about constitutionalism without such principles as the rule of law, nor can we talk about constitutionalism without democracy or the popular sovereignty, and last but not least, it is a basic guarantee in a system of parliamentarism.
These essential principles I just listed above, need to prevail together, since if just one of them is (not) able to function on its own, then we risk falling short of living in a traditional “liberal democracy”, which should be a main purpose as “civilized societies”. These societies and countries are often described in the literature and the politics as well, as the Global North, which do not form a monolithic bloc, but have conflicting (economic and political) interests and perceptions, but there is something, that keeps them together, which is nothing more than maintaining the status quo they created under the centuries.
One of the most powerful countries of the Global North is France and since I already introduced briefly the British and German systems, I am going to do the same with the French and the Polish systems since they are on two different sides of the conflict between constitutional democracies and illiberal ones, which I hope will help facilitate and understanding of what kind of persistent constitutional differences there are.
The French solution, the French Constitutionalism
The notion of the rule of law does not appear normatively in the French Constitution, so it follows that the public law basis of the French system is not the Rule of Law, but constitutionalism. Under French absolutism, contrary to the British constitutional monarchy, by the very nature of the absolutistic governing, the courts in France – during the ancient regime – did not have the power to constrain the monarchy in any meaningful way but were instead integrated into the institutional system of an absolute monarchy. Which, unlike in England, was held together by an extensive bureaucratic state apparatus. The fact that judicial jobs that could be bought by a narrow elite of the bourgeoisie and the concomitant spread of judicial corruption created animosity between the establishment and the later revolutionaries, who (following the Great French Revolution of 1789) were already constrained by Montesquieu’s principles regarding activist judicial lawmaking.
Nowadays in the French system, the Constitutional Council (Conseil Constitutionnel) is responsible for adjudicating on constitutional matters, which includes ex ante review or even the monitoring of the fairness of the elections. The Conseil Constitutionnel (under Article 56 of the French Constitution) has nine members each appointed for nine years by the President of the Republic (3), by the President of the National Assembly (3), and by the President of the Senate (3). Although this structure of the institution has had a lot of criticism over the decades, mostly of its direct connections with the politics. At the end of 1986, Michael H. Davis already questioned if it could be even called a court or not, because of its nature. He said that “despite the superficial similarities between the U.S Supreme Court and the French Conseil Constitutionnel the American system of judicial review ‘can have no counterpart in the French system’ that French legal and political theory is inconsistent with an effective supreme court, that there is ’no possibility’ in the French and the American systems can surmount this ‘major difference’ and that the Conseil is simply not a ‘true court’”. On the other hand, since then, the Conseil vindicated more power to itself with a constitutional amendment in 2008, which created a new procedure of ex-post review adding to the pre-existing, mostly ex-ante review powers. Today, the Conseil Constitutionnel has the competence to review cases referred with priority to it (QPC).
The Constitutional Council was institutionalized by the Constitution of the Fifth Republic in 1958 with the new Constitution (also known as the Constitution of Charles De Gaulle). President De Gaulle, in fact, wanted to limit the power of the National Assembly with the Conseil Constitutionnel, but the National Assembly, by a decision in 1971, made the text of the 1789 Declaration of the Rights of Man and Citizen part of the Constitution (as a so-called “constitutional block”, bloc de constitutionnalité, as clarified by the 1946 Constitution, which allowed it to them to exercise considerable fundamental rights jurisdiction. It is important to note here that Article XVI of the 1789 Declaration states that the separation of executive and legislative power is a fundamental requirement of constitutionalism, which, as I have said, is the basis of the French public law system.
The Polish Illiberalism: A Polished System of Constitutionalism?
Shortly my answer to the question above is: No. The illiberal twist that Poland (and also Hungary) went through in the last decade created several constitutional questions so let’s look at the Polish crisis which usually appears as a counterpart of Western-style constitutional democracies (such as France), since, as I have said, they are main characters of those rule of law disputes that dominates the European Union.
It is quite well-known that the origin of the constitutional crises in Poland is the conflict surrounding the appointment of judges of the Constitutional Tribunal, but as Tomasz Tadeusz Koncewicz pointed out that a purely institutional approach won’t be enough to rebuild the country’s situation with rule of law, mainly because this decline is linked to an on-going public disengagement and indifference with the principle.
After 1989, just like the other Eastern European countries, the main goal was to dissociate from their communist past, although Poland had a more symbolic role during the regime change period in this region since the well-known Solidarity Movement was the first legally functioning opposition party (which had 10 million members at the time). In 2015, Poland changed the system it created at the beginning of the ‘90s, by stepping on a new path defined as illiberal democracy or populist constitutionalism (Zoltán Szente thinks that this is the most accurate term to use because it refers specifically to the situation in Poland and Hungary.). Surprisingly, these EU members, Hungary and Poland are often paralleled with countries such as China, or Russia, whose constitutional systems are very different from theirs, therefore making these comparisons obviously exaggerated. It is therefore very difficult for legal scholars and political scientists to define or classify these systems and their changes, such as electoral authoritarianism, stealth authoritarianism, and hybrid regimes. But there are some points that are common, like the way in which the ruling elites got into power and their relationship with constitutionalism and the rule of law. This legal transformation is also described in different ways by others such as “counter-constitutionalism” or “autocratic legalism”.
The main problem that is often criticized in this region, including Poland, is that the Polish people have never really experienced learning the principles of liberal democracy and accepting their responsibilities to the community. As Tomasz Tadeusz Koncewicz wrote: “50 years of Communism were not conducive to building participation and trust in the state and the law, not to mention the short 20-year (1918 – 1939) interwar period (…) Meanwhile, the virtues of liberal democracy in the form of tolerance, respect for difference, and pluralism, never became part of the daily life and practice of Poles”.
Challenges of Constitutionalism
Several problems have emerged in the recent decades which one by one possibly could not be strong enough to erode such basic fundaments like the rule of law and constitutionalism, but together they present a huge challenge regionally for the European Union and in a wider sense for the Global North as well. In the last decade, we have been through financial-economic crises, migration, Brexit, and several constitutional crises in Central-Eastern Europe (branded as illiberal twists). These problems cannot be separated from the processes that European public law went through in the meantime, since if we look at the last crisis I mentioned (the “illiberal” twists in Hungary and Poland) triggered several EU-level mechanisms and procedures, not least because they were a reaction to the systematic erosion described above. The first instances of the Article 7 TEU proceedings – along with their dysfunctions – and the appearance of several new instruments such as the rule of law mechanism or the rule of law Conditionality Mechanism (Regulation 2020/2092) are all of those issues that should be mentioned here, but their analysis in detail requires further posts for many reasons. On the one hand, they were multiplied in the last couple of years, and on the other hand because all of these procedures suffer from at least partial dysfunctions, which can and must serve as a valid source of criticism against the current operation of the European Union. This is an essential period, in which we need to restore and protect the values and principles that started eroding in the last decade(s).
Soma BÁCSFALVI is a Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, and a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court, his research focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.
by admin | Sep 19, 2023 | European values
They say the road to hell is paved with good intentions. Particularly during the peak of summer, this well-known cliché looks like a good opportunity to set the stage for an opinion piece concerning some aspects of the future of unanimity decision-making within the European Union. Perhaps, it’s not merely an exaggeration though.
As thick as thieves, on May 4th, nine EU Member States—Belgium, Finland, France, Germany, Italy, Luxembourg, the Netherlands, Slovenia, and Spain—united to take charge of the continent’s destiny. In a joint statement, they addressed bypassing unanimous decision-making, which has traditionally played a crucial role in the EU’s Common Foreign and Security Policy. In light of this, it might not come as a surprise that this initiative is referred to as the “Group of Friends on Qualified Majority Voting in EU Common Foreign and Security Policy.” The naming, however, certainly raises pertinent questions and calls for thoughtful consideration.
This is because the intention of the above-mentioned member states is also evident from the joint declaration on this matter; the goal is not to comply with legal principles governing the EU, but to bend the law: “The group aims to reach progress in improved decision-making in CFSP in a pragmatic way, focussing on concrete practical steps and building on provisions already provided for in the Treaty on European Union.” (Desperate times call for desperate measures?)
I think three statements follow from this: the initiative of the nine EU member states is
- inefficient;
- aimless; and
- perilous.
Inefficient, because EU CFSP, due to its intergovernmental nature, is the area of EU policy- and strategy-making that can be classified as one of the most isolated in terms of the transfer of sovereignty by the Treaties. Let’s not even broach the topic of whether these countries would have the chance to reach a decision with a qualified majority in the EU, as the answer is a definitive “no”, based on the rules of QMV, the number of the “pioneers”, and the population statistics of the respective countries.
On the other hand, the number of Member States classified under the umbrella of the Group of Friends says a lot in this regard. This is the minimum that is needed in order for a specific group of member states to bridge the decision-making mechanism around the indeed conflictual unanimous voting, within the framework of so-called “enhanced cooperation”.
However, particularly in the realm of foreign and security policy, there are rules in place to confine such endeavors to a narrow path. Article 329 TFEU succinctly articulates these rules:
“The request of the Member States which wish to establish enhanced cooperation between themselves within the framework of the common foreign and security policy shall be addressed to the Council . . . Authorisation to proceed with enhanced cooperation shall be granted by a decision of the Council acting unanimously”. This means that unanimity in this domain is inevitable, and any attempt to manipulate the law in this regard could be deemed fraudulent—bona fide attitude or not.
This particular domain is evidently governed by a conservative regulatory intention, which makes any endeavor conflicting with the principle of equality among Member States untenable. Simply put, unanimous decision-making, as Star Wars’ very own Obi-Wan Kenobi would describe it, is still ”an elegant weapon for a more civilized age”.
However, let’s clarify further: only the above-mentioned nine Member States seem to view unanimous decision-making as a weapon. In this regard, I rather share the sentiments expressed by John S. Dryzek and Simon Niemeyer.
Unanimity is “the gold standard of political justification”‘, since “it is the only rule of preference concentration that grants pareto optimality”. In other words, unanimous decision-making establishes a civilized environment where, upon reaching a decision, the actor successfully utilizing the inherent bargaining mechanism of unanimity experiences an increase in its “well-being” without significantly compromising the interests of others.
All of this sounds like peace to me even though, certainly, here, I am referring to the so-called “veto powers” demonized by the European mainstream media. Although the legal documents of the EU do not explicitly use such terminology, politically speaking, the right of veto is afforded to all Member States through the requirement of unanimous voting.
In the case of Europe, the primary purpose behind any kind of union on the continent is to safeguard peace. The Preamble of the Treaty on European Union contains several solemn and symbolic statements made by the contracting parties, including the one “RECALLING the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe.”
Preambles are often neglected as unimportant narratives or negligible interpretive tools. However, considering what is at stake, any inefficient statement or attempt that goes against the purpose mentioned above is perilous. As the saying goes, “a friend in need is a friend indeed”—and given the geopolitical realities, Europe requires friends more than ever today. In light of this, it is advisable to carefully reconsider the initiative of the nine Member States.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
by admin | Sep 4, 2023 | European values
Probably everyone has seen a hook in their life regardless if it is barbless or barbed. On the latter, the barb serves to secure the hook in place once it has pierced the fish’s mouth. Well, the Rule of Law Framework within the European Union operates exactly the same way: from the moment a member state becomes hooked at the ‘giving end’ of a rather one-sided interpretation of the rule of law, their room for maneuver becomes restricted. Here, I am talking about a bond that distressingly resembles the one between a partially self-governing province and a central federal government.
Considering the direct effects of the framework, and the case of Hungary, the interconnections of three dimensions are relevant here: the rule of law conditionality mechanism that was initiated against Hungary last April right after the domestic elections, the blocked Hungarian Recovery and Resilience Plan, and the partnership agreement. The latter two can be considered ‘prisoners’ of the former. Although these issues are not organically related to each other, they can only be resolved if the conditionality mechanism is abolished in relation to Hungary.
Apparently, The Rule of Law framework has set the stage for unlawful political and constitutional guardianship
Starting in 2020, the European Commission, setting the stage for a successful ‘fishing season’, has been issuing yearly reports that delve into the condition of the rule of law within each member state of the European Union. On 5 July this year, as scheduled, the Commission released its latest package, including the country chapter on Hungary.
The political framing of the report starts right from its Abstract, subtly suggesting that Hungary not only falls under the scope of the Article 7 procedure triggered by the European Parliament but is also viewed as a country under the guardianship of the political bodies of the European Union—especially considering that Vera Jourová, the Vice President of the European Commission for Values and Transparency has just mentioned in a private press conference that the European Commission is already preparing to investigate the Hungarian education reform, despite lacking clear authority in this matter. LSE’s Damien Chalmers wrote more than 10 years ago in his interpretation of the German Lisbon ruling by the BVerfG that the EU “violates central parts of a national constitutional identity even when acting within its powers by curtailing the role of the Bundestag by legislating in core areas [such as] fundamental elements of fiscal policy and the Sozialstaat, and culturally important fields, notably family, education and religious law.” So we can easily make the argument that education policy typically constitutes a fundamental aspect of the constitutional identity of EU member states under Article 4(2) TEU.
According to Article X of the Fundamental Law of Hungary, the freedom of education is guaranteed by Hungary alone – no other state, body, entity, or organization is responsible for safeguarding these rights. Nevertheless, this value is not only in line with the Hungarian Fundamental Law and the TEU but finds further affirmation in another crucial EU-level stipulation.
Within the Treaty on the Functioning of the European Union, Article 6 governs the supporting competences of the EU, encompassing education as well. In this playing field, legally binding EU acts are not permitted to mandate the harmonization of laws or domestic regulations among the Member States.
However, the attitude of the Commissioner responsible for EU Values and Transparency implies that the rule of law mechanism is a proper opportunity for the Euro-federalists to send a message to all the member states: ‘now is the time to align yourselves with us, or we will force you to do so.’ Or – tailored for hard-liner Star Trek enthusiasts’ understanding – ‘Resistance is futile’.
Do we need a ‘superstate’ like this?
Arguably, the European Commission’s notion of ‘rule of law’ can be perceived as a ‘backslid’ form, leaning more towards ‘rule by law’ rather than the original public meaning of the concept [see for example Jens Meierhenrich’ & Martin Loughlin’ work titled ‘The Cambridge Companion to the Rule of Law’ (Cambridge University Press 2021)]. Ironically, among other signs, it is the flaws found within the rule of law reports themselves that bolster this assertion.
The significance of these reports lies in their particular importance because according to the official communication of the Commission, the annual Rule of Law reports are crucial sources of information for the Commission to establish whether the conditionality regulation should be triggered.
The Hungarian equivalent of the term ‘rule of law’ is ‘jogállamiság’. Upon closer examination of these two correlating terms, the latter is not only about the rule of law; one might envision a state that operates ‘by and for the law’ and for the benefit of the constituting entities. In such a state the rule of law permeates all core functions by determining inherent limits to the exercise of public power.
Even though the European Union, fortunately, is not a state, the ambition to turn it into one has significantly influenced the bloc’s politics for decades. Ideally, the goal of this endeavor would be to create a functional state, operated just as the Hungarian concept assumes. By contrast, the thoughts shared above were to enlighten how deep the disappointment might be.
Despite the relatively low legal quality of these rule of law reports, they can be excellent ‘hooks’ from a political perspective. Only time will reveal whether, in the case of Hungary, the fish or the hook will prove stronger. However, undoubtedly, a hook does not bode well for fish – especially when hung in a fishbowl. And remember: currently, 27 fishes are in this tank.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
by admin | Aug 29, 2023 | European values
Currently, the rule of law debate stands as one of the most prominent subjects in the European Union. Primarily, it involves a political discourse that highlights the legal profession’s arguments from both sides. However, in this discourse, one part of Europe, swayed by a one-sided concept of the rule of law, slowly became convinced that the opposing side cannot be right.
This is concerning since this one-sided interpretation of the rule of law seems to offer a favorable chance to erode the constitutional identity of member states and subject them to financial and constitutional supervision, particularly when the visions of their governments for the future of the European Union diverge from federalist perspectives and principles.
Ever since the migration of the concept of the ‘rule of law’ from the exclusive realm of legal academia and instruments to the contentious arena of everyday political discourse, it is apparent that the European Commission, acting as the ‘Guardian of the Treaties’ – as the saying goes – ‘flexes its political muscles’.
The Case of Hungary – The Proverbial ‘Snowball in Hell?’
A ’snowball’s chance in hell’ is an idiom, denoting an extreme unlikelihood or impossibility. This idiom aptly encapsulates the situation of Hungary, a member state that has been relentlessly portrayed by the international media as the only EU country exhibiting the most severe breaches of the rule of law. Now, let’s take a look under the hood and provide a more nuanced perspective.
On 5 July, as scheduled, the Commission released its latest report on the Rule of Law, including the country chapter on Hungary — a highly anticipated one for those who keep following the developments of the rule of law debate between Budapest and Brussels.
Rumors had it that the Commission would appropriately evaluate the efforts made by the Hungarian legislature, together with the Hungarian government, to partially reform the country’s legal system; thus a more balanced portrayal of Hungary was expected. Carefully analyzing the report, it becomes clear that the findings not only fail to validate the ‘bona fide’ attitude of the Commission but actually support the opposing viewpoint.
The political framing of the report starts right from its Abstract, subtly suggesting that Hungary not only falls under the scope of the Article 7 procedure triggered by the European Parliament but is also viewed as a country under the guardianship of the political bodies of the EU.
However, let us set aside this point for now and let us be fair — it is just the Abstract after all: the Article 7 procedure is indeed underway, while the process remains largely within the realm of diplomatic exchanges characterized by dialogue and symbolic gestures.
The point is not exactly ‘what’ the European Commission takes into account, but rather ‘how’
Also, let’s not discuss here the allegations surrounding the European Commission’s repeated mentions of specific rule of law anomalies, as some argue that these stem from a perceived lack of understanding regarding the peculiarities of the Hungarian legal system. The problem, apparently, starts with the inkling that the Commission does not even want to understand the Hungarian legal system.
A closer examination of the report unveils the intriguing interplay between the main text and the footnotes, shedding light on interesting revelations:
Claim:
’Concerns have been raised regarding the lack of transparency of case allocation in lower courts. The case allocation schemes in the five regional appeal courts, the 20 regional courts and the 114 district courts are established by the court presidents.’
Footnote support:
’In the case of district courts, the case allocation scheme is established by the president of the regional court. The judicial council of each court gives a non-binding opinion (contribution from Alapjogokért Központ for the 2023 Rule of Law Report, p. 13).’
Claim:
’The law provides for a wide range of exceptions to the rules without establishing guarantees against their inappropriate application.’
Footnote support:
’Contribution from Amnesty International Hungary; (…) Eötvös Károly Policy Institute; (…) the Hungarian Helsinki Committee (…)’
Claim:
’European standards require that the allocation of cases within a court follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge.’
Footnote support:
’Committee of Ministers of the Council of Europe Recommendation (…)
Claim:
’Stakeholders note that case allocation schemes can be modified at any point of time; according to stakeholders, such modifications are carried out regularly, sometimes even from one day to another.’
Footnote support:
’Contribution from Amnesty International Hungary; (…) Eötvös Károly Policy Institute; (…) Hungarian Helsinki Committee.’
The example above highlights an interesting evidence-gathering ‘routine’:
a) The European Commission unveils a ‘devastating’ statement concerning Hungary;
b) then supports its claim by referring to data provided by a prominent conservative think tank, only to create a sense of objectivity (in this case, Alapjogokért Központ or in English, Center for Fundamental Rights),
c) the European Commission follows up with yet another ‘devastating’ statement, bolstered by the viewpoints of critics known for their consistent and often politically motivated opposition to the Hungarian government.
To heighten the intensity, the European Commission incorporates an official document from another EU body — in this case, the Committee of Ministers of the Council of Europe — only to be followed by yet another opinion by one of the constant critics of the Hungarian government.
The Commission follows a similar strategy when drafting another ‘devastating‘ statement later on:
’Smear campaigns continue to exert undue pressure on judges, affecting their freedom of expression. Stakeholders report that in autumn 2022, pro-government media launched smear campaigns against two judge members of the National Judicial Council.’
Footnote support:
’Contribution from Eötvös Károly Policy Institute; (…) Liberties (…). In October 2022, further attacks were launched by pro-government media and government officials against the National Judicial Council’s spokesperson and its member responsible for international relations. Their independence was questioned for meeting the US ambassador in their capacity as representatives of the Council, to discuss the situation of judicial independence in Hungary.’
Of course, the alarming nature of a situation where the ambassador of a country extends an invitation to two judges for an exchange of ideas is beyond doubt. Sadly, this occurrence is not mentioned in the footnotes of those statements by the European Commission providing information on the public sentiment related to the independence of Hungarian judges (relying on the outcomes of public opinion polls conducted using a methodology that has also raised controversy).
Meanwhile in Spain…
Currently, Spain is governed by a progressive-socialist administration that adeptly harmonizes its policies with the preferences of the political bodies of the EU. Moreover, its prime minister is a prominent advocate of Euro-federalism. Could the European Union be in more capable hands than it is currently, especially before Hungary assumes the EU presidency? Everyone has the opportunity to answer this question in light of the following.
According to the country chapter discussing Spain, ’no progress on addressing the challenges related to the length of investigations and prosecutions to increase the efficiency in handling high-level corruption cases’.
Moreover, ’No further progress on strengthening the statute of (sic!) the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the Government, taking into account European standards on independence and autonomy of the prosecution’.
Furthermore, according to Brussels records referred to in the country chapter about Spain, the Spanish population has a favorable opinion of the independence of judges only at 34 per cent.
High-level corruption, concerns about the independence of the chief prosecutor, and the autonomy of judges are recurring topics often associated with Hungary, too. In fact, the scrutiny and criticism directed towards Hungary by several NGOs, both small and large left-wing international media outlets and prominent politicians predominantly revolve around these issues, contributing to what is commonly known as ‘Hungary bashing’.
Interestingly, there seems to be no equivalent level of scrutiny directed towards Spain. Setting aside the question of the credibility of impression-based opinion polls driven by political motives, it is worth noting that even Spanish judges find fault with the independence of their judiciary (as recently as in 2022).
This unfortunate situation can be primarily attributed to the recurring problem that the European Commission consistently raises with Madrid on a yearly basis. This holds even in 2022 when the rule of law conditionality procedure was initiated against Hungary.
In Spain, the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) is an independent constitutional entity that safeguards judicial independence and supervises the administration of justice. Its pivotal functions encompass the appointment of judges, handling disciplinary proceedings within the judiciary, and guaranteeing the effective operation of the Spanish judicial system.
The CGPJ continues exercising its functions ad interim since December 2018. The progressive-socialist government of Pedro Sánchez has resorted to politically motivated measures to fill this legitimacy gap. The governing party, although failed, has even resorted to advance legislation that would grant Congress the authority to appoint members of the CGPJ with a simple majority, potentially enabling them to ‘pack the court’. This can be easily deemed unacceptable according to the standards of the rule of law (of course ad interim operation of a constitutional body in itself is going against the standards since all of its actions are quasi unconstitutional).
But let me cite here another — this time successful — example, closely related to this topic.
Undoubtedly, according to the standards of the rule of law, regime-driven court packing is viewed by the academia as an undesirable solution. One of the well-known strategies of court-packing is the ‘swapping strategy’, which aims at replacing sitting judges. Well, that’s exactly what happened in Spain last winter. For background: the Spanish Constitutional Court consists of 12 justices. Four of them are nominated by the lower house of the parliament (the Congress), four by the upper house (the Senate), two by the government, and two by the judicial administration body (CGPJ).
The latter — as mentioned above — has been struggling with serious problems and has been continuously failing to nominate its candidates for the Constitutional Court positions until December. All this prompted the current government, hoping to be reelected this year, to look for a political solution (described in detail by Henry T. Edmondson on Law&Liberty).
Finally, the CGPJ, ‘almost out of nowhere’, but presumably as a result of political compromises, finally nominated a conservative and a progressive person to the Constitutional Court, which paved the way for the current government’s two progressive-leaning candidates. As a result of this, the Spanish Constitutional Court now has a progressive majority, and it also has the former justice minister and another former member of his government on board.
In Spain, the opposition, rather than the government, is held responsible for the most significant rule of law anomalies.
Reading the report on the rule of law situation in Hungary, alongside the other country chapters, remarkable and clearly tangible differences arise in reporting on the public sentiment regarding the rule of law in the different member states. The example of Spain — described below — illustrates how adeptly the European Commission manages the evaluation of the situation of the rule of law in member states, distinguishing between those perceived as ‘recalcitrant’ and those deemed ‘friendly’.
All of the developments mentioned above effortlessly pass through the European Commission’s filter without any particular consequences. Undoubtedly, within the country chapter dedicated to Spain, the rapporteurs of the European Commission briefly depict the embarrassing situation around the CGPJ at hand; but in the attached footnote, they attempt to rationalize the ad interim situation with the following: ‘On that day the main opposition party decided to suspend negotiations.’
However, what the Commission failed to disclose to the public is that this action was prompted by the socialists’ submission of a series of highly objectionable bills to the parliament. Among others, the package passed by the Senate scraps the crime of ‘sedition’ for one of public disorder and reduces sentences for some ‘embezzlement’ convictions.
Based on all of this, it could be argued that there is an inherent ‘rule of flaw’ that is apparent from the methodology by which the Rule of Law Report has been edited this year. This also supports the argument that the scrutiny (or lack thereof) of the correlation between the current Report’s main text and the footnotes in the case of the Hungarian country chapter seems deliberate. So, the following question arises:
Are these reports of a professional, or rather political nature?
Before I provide you with my answer, let’s take a moment to delve into the EU regulation concerning the rule of law conditionality procedure, which states the following:
‘Appropriate measures shall be taken where it is established by Article 6 that breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way.‘
Hungary remains subject to the rule of law conditionality procedure and has yet to receive any funds from the suspended amounts. Meanwhile, Spain conveniently falls within the extensive blind spot, spanning at least 504,782 km², of the current rule-of-law-obsessed political leadership in Brussels — a region of Europe seemingly immune to the scanning rays of the European Commission.
In stark contrast, Spain has been continuously receiving the respective EU funds despite the many issues that I presented above, which should at least raise some concern from thinkers across that country and across the European institutions as well. Instead, we experience a very apparent sleight of hand happening. In what terms?
The Commission deceptively exerts a dominant influence over the concept of the rule of law, making sure that the European public remains unaware of its manipulation. Oxford Dictionary defines manipulation is defined as ‘to control or influence someone or something, often in a dishonest way so that they do not realize it.’
According to the official communication, the primary objective of the European Commission in publishing these reports is to diligently monitor the state of the rule of law across the European Union member states. Furthermore, the reports aim to identify and highlight issues and areas requiring improvement that directly pertain to the fundamental principles of the rule of law. The problems mentioned above definitely fit this bill.
But still, the European Commission is an institution comprised of bureaucrats whose politicization appears to intensify over time. As long as reports of this caliber continue to emerge from the ranks of the Commission, the rule of law reports seemingly serve no purpose other than the deliberate construction of well-tailored political narratives and actions serving the short-term political goals — be it federalism or other — to be furthered by the Commission.The Treaty on European Union dictates that the Union and the Member States shall mutually respect and assist each other by the principle of loyal cooperation. Well, the 2023 Rule of Law Report tends to paint a different picture, fitting the mold of its predecessors.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
by admin | Aug 7, 2023 | European values
During the last decade the debate about the “real rule of law” dominated European constitutional law and politics, although the processes got faster in the last – let’s say six – years, especially after the European Union (EU) created several rule of law review processes, such as the rule of law mechanism or the conditional regulation. The actuality of this post is that a couple of weeks ago the 2023 Rule of law report was published, which is published every year due to the regulation of the rule of law mechanism. In this report, the European Commission is observing every member state according to different aspects. These aspects are the judicial system of the member states, the media pluralism and the freedom of the press, the anti-corruption framework, and other institutional issues linked to the system of checks and balances.
Nowadays One can observe the presence of two major “citizen” groups – it is especially noticeable in Hungary –, on the one side the so-called “pro-EU camp”, which thinks that the rule of law is the very same across Europe, at least in its dogmatic background, and so they absolutely agree with the present functioning of the EU and its restrictions against some member states. On the other side is the “critical camp”, which thinks that almost everything Brussels does is harmful and burdensome for the Member States (and also the EU), and in most cases, they are the targets (not accidentally) of those rule of law review processes which I mentioned above.
The EU’s above mentioned rule of law procedures clearly demonstrate the conflict that has arisen regarding the interpretation and the development of the rule of law in Hungary and Western Europe, which has led to a situation summarized aptly by Nóra Chronowski in her monograph Constitutionalism in Three Dimensions. Due to the changes the Hungarian legal system went through and due to these debates about the EU’s and the Member States’ majority Rule of Law perception, the Hungarian constitutional system got to a point where it has been systematically and critically analyzed and labeled using a variety of indicators such as András Jakab’s hybrid regime, Martin Belov’s populist constitutionalism or David Lendau’s abusive constitutionalism.
But this time, to understand what Hungary and the EU went through in the last couple of years, it has to be pointed out that there really are differences in the theories of rule of law between the current and former member states. By denying this statement, we would only increase the division in our societies, which could lead us to the collapse of one of the most important – both economic and political – conglomerate, the European Union. Although there are other theories – obviously – such as the French État de Droit – which I will mention below – or the Italian Stato di Diritto or the Slovenian Pravna Država, there is not enough space in a blog post to cover them all.
In the following, the “most powerful theories” of rule of law will be presented: the German Rechtsstaat and the Anglo-Saxon Rule of Law, what were lead us to the founding of the union (among others). It has to be noted, that in the last couple of years, the debate about rule of law was not between the different Western European countries but with those Central and Eastern European ones, whose political, constitutional, historical, and democratic backgrounds (which is also connected with their societies) has lagged behind in this progression. Not least because these countries (like Hungary, Poland and so on) were functioning under a dictatorship, basically without any type of sovereignty, so mostly every country in this post-socialist region only been living in a so-called “democracy” for around thirty years, during which time the scientific community and the citizens themselves have had to understand and learn the theoretical and practical operation of this new form of state.
Historical background:
Following two of the most prominent figures in Christian political philosophy, St Thomas Aquinas and St Augustine, the science of philosophy has been dominated by the idea of natural law, which argues that man-made law (ius humanum) must be developed in such a way that there is a superior law, which is none other than divine law (ius divinum). However, over the centuries, this notion has been increasingly superseded, which resulted that the laws created by the states had to provide their own answers to questions that were previously settled in a different way. To solve this problem, three main solutions were created, which are still relevant today: the English rule of law, the German Rechtsstaat (the basis of our Hungarian ideal of the rule of law), and the French constitutionalism. The main theory of the French Constitution is not the rule of law, but constitutionalism. Although, there is the French view of the rule of law (État de Droit) that is obviously connected with constitutionalism and it prevails indirectly through it, but constitutionalism is not another view of the same fundamentum but has a separate value and purpose.
These three solutions have, nevertheless, emerged within two families of law – at least if we take René David’s classification theory as a starting point. In his opinion, we can distinguish three basic families of law in jurisprudence. First, the Romano-Germanic family of law, which includes the French and German legal systems, since they developed on the basis of Roman law. As another family, he identified the common law family, which, although it developed in a Christian context, operated with a radically different solution than its Romano-Germanic cousins. As a third family of law, he identified the so-called socialist family of law, while a fourth group was defined as legal systems that could not be grouped into a single family. In the following, I will briefly examine the different theories and the resulting contrasts between the two families of law that are still relevant today, namely Roman-Germanic and common law.
The Anglo-Saxon Rule of Law
The Anglo-Saxon principle of rule of law has its roots in the aforementioned common law legal system and its first appearance is dated around Charles Stuart I (1600-1649), but only began to take shape in the specific English socio-political context of the 17th and 18th centuries.
In the common law system of precedent, the written law is also primary, but in the absence of codified law, the case of the assertion of subjective entitlement and the decisions of the judiciary, where the reasonableness of the previous judicial decision can be invoked, based on judicial rationality, are the primary decisions. Sir Edward Coke believed that this legal reasonableness ensures the primacy of the common law judge over the exercise of political power. Even within this legal system, however, there are conflicts of interest, since it is not insignificant that the principle of the primacy of the common law may conflict with the idea of the supremacy of the British Parliament.
In the Anglo-Saxon (more closely British) common law system, contrary to Montesquieu’s theories, the different branches and functions of power were intertwined to a rather large extent. For example, the monarch was theoretically part of the legislature because of the King/Queen in Parliament principle, the Lord Chancellor – the President of the Second Chamber – was also the head of the supreme court and a member of the government. For a long time, until 2010, the House of Lords performed the functions of the Supreme Court, and the intertwining of the executive and the legislature is shown by the fact that, in Westminster-style British parliamentarism, members of the Cabinet are also members of the House of Commons.
The common law interpretation of the rule of law is that in such a system, i.e. where Parliament and Government are so closely intertwined and even interdependent, the independent courts have a wide range of law-making and adjudicative powers which ensure the supremacy of law – or the rule of law – over any governmental arbitrary power. Another important point is that the United Kingdom does not have a chartered constitution but a historical (uncodified) one, which consists of relevant judgments of the courts, declarations of rights and statutes (Acts of Parliament), enforced by a specific legal system and the rule of law.
The relevant theory of the anglo-saxon rule of law perception, in Albert von Dicey’s treatise “Introduction to the Study of the Constitution”, published in the United States in 1885, also focused on the current (then) interpretation of the Rule of Law and which states can meet this set of criteria. Dicey concludes that the most important parts of the Rule of Law are the absolute supremacy of the law, i.e. that all subjects of law – including the lawmaker itself – are subject to it, and that individuals can enjoy the fundamental rights of the state equally, guaranteed by the state constitution.
This is in harmony with another anglo-saxon rule of law theoretical Tom Bingham’s thoughts. He defined the central premise of the rule of law as: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”
The German Rechtsstaat
The German Rechtsstaat appeared in public law somewhat later, in the 19th century. In its form, it is a set of fundamentally different theories, to such an extent that a complete listing of the most important works on the rechtsstaat would be a considerable challenge. However, the common starting point of these different theories is that they contrast the rule of law with the police state (Polizeistaat), which is based on the autocratic rule of the individual.
The “founding fathers” of the rechtsstaat principle include significant legal scholars such as Robert von Mohl, Friedrich Julius Stahl and Rudolf von Gneist. The German doctrine of the rule of law does not see institutional solutions as the appropriate means, i.e. it does not see the realisation of the rule of law in the division of power and a specific form of government. As András Zs. Varga points out: Mohl neglects to link the rule of law to formalism. According to Robert von Mohl, the framework for the exercise of sovereign power is provided by the state, the means are provided by law, and the primary task of the state is to enforce its legal order, which means that the exercise of state power is only possible by legal means. Based on this conception, the concept of the rechtsstaat is normative, while the relationship between the individual and the state – i.e. democratic legitimation – is at its core, and the state must provide its citizens with guaranteed freedoms. Von Mohl attempts to show by means of a non-exhaustive list what rights citizens are entitled to in a state governed by law, but in the end – as Krisztián Szaniszló rightly points out – it can only be interpreted as an exemplary list. He defines such substantive rights as, for example, personal freedoms, freedom of speech (i.e. freedom to communicate one’s thoughts), freedom of association and religion, or equality before the law, but in his view the requirement of proportionality is also an important part of the rule of law doctrine. The Member States of the Federal Republic of Germany, the Executive and the Judiciary must work in harmony.
Based on these, as Fruzsina Gárdos-Orosz and Zoltán Szente pointed out, “In Germany in the 19th century, the aim was primarily to strengthen the formal rule of law, to build up the legal basis of public power. In Great Britain and France, the concept of the substantive rule of law was more prominent. This meant that fundamental rights had to be guaranteed by a state based on the principle of separation of powers.”
Challenges of Rule of Law
These concepts paved the way for a new concept of the rule of law (can be interpreted like they paved the way for a new level of rule of law), the European Union’s own theory, which initially incorporated it into its own values (Article 2 of the Treaty on European Union) and later created a normative definition for it (Regulation 2020/2092). Ongoing discussions about the EU’s own view on rule of law include whether the EU is capable to have an own view, since it is not a country. There are also many critics about the way how the EU executes this principle. The separate rule of law processes the EU created after one another can be liable to infringe the principle of legal certainty. Unfortunately, the issue of defining rule of law became more complex than only a legal problem itself. During the last ten years, the concept of rule of law expanded from the field of law to a field mixed with law and politics, which not an unknown phenomenon in history, but it could never really helped the case itself.
Soma BÁCSFALVI is a Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, and a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court, his research focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.
by admin | Aug 3, 2023 | European values
The recent opinion of the European Commission for Democracy Through Law (also known as the Venice Commission) on Ukraine’s minority protection framework serves as a reminder of the country’s dubious preparedness for EU membership. The case also brings the EU’s own shortcomings in safeguarding minority rights – framed by the European Commission – into focus.
It happened just a few weeks ago: in mid-June, the European Commission for Democracy Through Law (CDL, Venice Commission) published its official opinion on the legal framework for the protection of minorities in Ukraine. The document deals with such pivotal issues as, for example, the right of national minorities to organize their events in their own language, the presence of national minorities in the media, and their relations with the Ukrainian authorities. One issue cannot escape the attention of Hungarian analysts when reading the opinion: according to 2021 census data, 150,000 Hungarians live in Ukraine.
At first glance, the opinion essentially echoes the sentiments expressed by the Venice Commission regarding the Kyiv administration’s stance on the matter. Insufficient measures taken to address concerns regarding minority protection are among the factors contributing to Ukraine’s lack of readiness to join the European Union, one might conclude.
But does anyone from the European Union have a moral basis to say this? The European Commission seems to think so, as it was relieved to note that the grunt work in the case of Ukraine has already been done by the Venice Commission.
Indeed, the work of the Venice Commission proves to be partially effective: the Ukrainian legislator has postponed the full implementation of the reform implying the gradual transformation of the secondary minority language school system into a state-language framework – again.
And although one can only agree with the decision in Kyiv, postponement – as FUEN (The Federal Union of European Nationalities) president Loránt Vincze explained – does not mean an effective solution.
If we are talking about solutions, the obvious question arises: why can national minorities in Europe expect more effective legal protection from one European Commission over another one?
The question, though rhetorical, may, unfortunately, be deemed less relevant in the foreseeable future. The EU had a prime opportunity to effectively enforce Article 2 of the Treaty on the European Union, which, notably, carries a conservative undertone. It states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
It may sound idealistic, but in the realm of policy-making, the most effective way to demonstrate respect is by actively contributing to the preservation of the promotion of policy goals enshrined in legislative texts.
The European Commission missed out on this opportunity when it concluded in January 2021 that the full implementation of legislation and policies already in place provides a powerful arsenal to support the Minority SafePack Initiative’s goals.
But what is Minority SafePack? In fact, the Minority SafePack – one million signatures for diversity in Europe had the potential to become a remarkable success story of cross-party advocacy. Undoubtedly, the Minority SafePack Initiative breathed new life into the previously stagnant European Citizens’ Initiative (ECI), reviving it from a state of dormancy.
Essentially, the institution of the ECI empowers EU citizens, who by the way hold citizenship in multiple member states, to initiate a request to the European Commission for the submission of a relevant proposal. This mechanism allows citizens to express their judgment on situations where they believe EU legislation is required for the effective implementation of the founding treaties.
The ECI is part of a series of measures that are – in theory – aimed at enhancing participatory democracy within the European Union and making the Union more accessible and tangible for EU citizens.
In accordance with the regulations governing the ECI, an impressive total of 1,123,422 verified signatures were gathered between April 3, 2017 and April 3, 2018, exceeding the required minimum of 7 member states by encompassing participation from 11 nations.
The European Parliament also backed the project: in December 2020, the body assured its support for the initiative in a resolution with a significant majority of 524 votes (with 67 against and 103 abstentions).
Much ado about nothing – the initiative failed in January 2021, and the Commission’s decision was confirmed by the Court of Justice of the European Union. So much for participatory democracy on the EU level.
But unfortunately, so much for the illusion that the European Union would be an excellent place for indigenous minorities as well. Last year, the Polish Sejm amended the law on the annual budget in such a way that, as a result of the amendment, approximately 10 million euros were withdrawn from education in minority languages. Moreover, despite the official recognition of Basque or Catalan as languages in Spain, it is widely acknowledged that accessing public services in these languages is, at best, a challenging endeavor. The situation is similar for the Dutch Frisians.
As long as the situation remains unchanged in the European Union in this regard, the European Commission will continue to owe the bloc a debt. It must undertake the responsibility of developing comprehensive legislation and establishing mechanisms designed to address the unique challenges confronted by minority communities.
The occasional occurrence of significant harm to the interests of minorities within the European Union serves as evidence that the European Commission has fallen short in fulfilling its duty to enforce existing regulations. This failure highlights the need for the Commission to address shortcomings and improve its performance in safeguarding the rights and well-being of minority communities.
The situation becomes particularly disheartening when considering the consistent inclination of the European Commission and the Court of Justice of the European Union to champion ‘more trending’ minority cases, such as the LGBTIQ Equality Strategy 2020-2025. Moreover, this approach inadvertently fuels negative political narratives around countries labeled as uncooperative.
In light of the above one might cynically suggest that it is enough for Ukraine to wait until accession to the EU by paying attention only to the Venice Commission in matters of ‘selective’ human rights protection, as one can observe this in the field of minority protection. However, cynicism equals cheap journalism in our contemporary world of rule of law reports.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
