Grzegorz BLICHARZ: Platform Workers as ‘Freedmen’: Reflections on the EU Proposal

From a European perspective, the working conditions of digital platform workers are a matter of great concern. The crisis caused by the current pandemic has dramatically increased the number and value of services rendered via digital platforms, most notably the delivery of services and online services themselves. Currently, there are 24 million EU platform workers, and the estimated value of services delivered via digital platforms reaches €14 billion. After gathering comments and suggestions from the public based on a preliminary paper, by the end of 2021, the European Union proposed specific legal instruments that aim to improve the working conditions associated with platform work – EU directive of 9.12.2021, 2021/0414 (COD). In order to justify them, the European Parliament and the European Council appealed to the right of every worker to working conditions which respect their health, safety, and dignity (Art. 31 of the Charter of Fundamental Rights of the European Union). The EU legislator wants to presume an employment relationship whenever a digital labor platform “controls” the performance of work as defined in Article 4 paragraph 2 of the directive. A broad understanding of “controlled work” allows the application of certain worker standards of protection.[1]

As J.M. Puyol Montero puts it clearly “[t]he first social laws were born out of a desire to protect the human dignity of workers, particularly of the most vulnerable workers, in the exercise of their work”.[2] The appeal to human dignity revolutionized the fundamental rights foundations of labor relations in the 19th and 20th centuries which echoed the recognition of equality of every person. It urged the state to interfere with contracts for labor leading to a new branch of law – usually called labor law – aimed at balancing employee-employer relations and ensuring decent working conditions. A similar phenomenon of both recognizing a subjective element (worker’s protection) in the performance of services and a multifaceted bundle of contracts allowing to use work and services rendered, however, has its roots in ancient Roman law, more specifically in locatio conductio (A contract for lease and work), and most broadly concerns the atypical and highly-regulated provision of services by ‘freedmen’ to patrons (operae libertorum). There is a certain structural similarity between the activities of the freedmen and platform workers. It has already been confirmed that protective regulations of freedmen functionally resemble social rights granted under labor law, and they often result from humanitarian reasons.[3] Slave-work, freedmen services, and free men services played a major role in providing services in ancient Rome. It was the services of the freedmen that attracted Roman jurists particularly, which may indicate their social importance.[4] A specific, long-term relationship – based on trust and friendship – between a freedman (subject to manumission) and his former owner existed at that time. For freedom and social protection, the person subject to manumission was to provide certain services free of charge on the basis of a contractual obligation, which were implemented by stipulatio or oath (iusiurandum liberti). The imposition of duties on freedmen gave the access to free and often good quality services provided by trusted persons and patrons were allowed to hire out (locatio conductio) such services of their freedmen to others.[5] This was an extremely advantageous arrangement for the former owners, so much so that the praetors decided to issue an edict against the abuse of freedmen which often put them in de facto slave-like position.[6] The Roman example shows that rendering services may require the institution of certain precautions and leveling of the parties concerned neither with having modern concept of labor law nor extending the idea of contract for labor, which may lead us to rethink other types of contracts which might serve this goal. Anthropological considerations – the recognition of what a human person is and what goods are considered to be essential for their life – constitute the universal framework for legislation and jurisprudence, present also in Roman law.[7] Perhaps heading in a similar direction, the EU proposal on platform work at issue here offers a mere presumption of employment bond. Nevertheless, it may easily become a new test for the existence of an employment bond which could interfere too heavily with the freedom of contract and the current contractual scheme of private law. We must note that the same issues can be addressed by different nation-states in various ways, according to which side of the problem they find emphatic: they can side either with freedom of contract, invoking strong separation and difference between bona fide employment relationships and civil-code based service contracts which do not entitle to protection measures; or, on the other hand, with the general concept of protecting those who work under certain circumstances, and so including platform work within this realm and regulating it, as well as imposing specific protective duties on the suppliers of such work from the point of view of fundamental, human rights, such as dignity. Some states put more stress on functions of control and on soft measures such as audits or requiring skills certificates to operate in the market. At the EU level, there is fierce discussion over freedom of movement versus freedom of business (protection of competition) which boils down to whether platform workers indeed are workers employed by their suppliers or are rather self-employed individuals merely rendering services to their suppliers. As for now, the EU would seem to believe in finding a compromise between the two approaches, i.e., between the high-protection and no-duties approaches.

Today, a worker’s right to protection of the goods listed in Article 31 CFR has its basis and source in human dignity (Article 1 CFR), and, as a result of this, dignity is mentioned twice. As one of the goods protected under Article 31, however, dignity is listed on an equal level with the other goods, not given prominence, whereas in Article 1 it is primordial. The subtle ambiguity of dignity as applied both in labor law and in constitutional law appears not only in this act but also in all legal orders, where human dignity shines as the overriding constitutional principle. In the Polish legal scholarship and jurisprudence, discussion is focused on the relation between the constitutional principle of human dignity and the dignity at work regulated in Art. 111 of the Polish Labor Code: “The employer is obliged to respect the dignity and other personal rights of the employee”. In German labour law, protection of dignity is expressed with regards to harassment in general and sexual harassment in particular under §3 of General Act on Equal Treatment of 14th August 2006. The doctrine of labor law explicitly states that the dignity mentioned in the famous triad of employee goods refers specifically to dignity at work. What this actually means is, however, debatable. On the one hand, Art. 36 “is silent as to what measures are necessary to comply with this right”;[8] it simply reinforces the importance of human dignity simpliciter (Art. 1 CFR). More outspoken is the “twin” Article 26 of the European Social Charter (Revised, ESCR), which refers to dignity targeted to provide respect and honor towards the employee as a human being – towards his or her special position in the cosmos.[9] This has a different meaning from the fundamental human dignity so widely celebrated nowadays, which in Art. 31 CFR is treated relationally and reduced in effect to protection against bullying and harassment.[10] On the other hand, the reference to dignity in Art. 31 is considered as a safety valve, an open clause, which allows for the many ways in which workers can be protected to be extended freely, as well as the requirements of decent work to be applied also to other persons providing work, i.e. those not qualified as employed under an employment contract[11], as we see in the case of the discussed directive addressed to platform workers.[12]

Today, the constitutional obligation to provide healthy, safe, and secure working conditions is implemented through labor-law regulations, and in the case of service contracts only in specific types this obligation is particularly required. In Poland, for example, the labor code (Article 304. § 1 of the Polish Labor Code) imposes such obligations in civil-code contracts under specific circumstances only;. Polish law imposes the obligation of the observance of health and safety rules in the case of service contracts when a person employed under a service contract works at a workplace designated or organized by the employer, even if an employment relationship does not bind them or if the employer is not an employer as defined by labor law—moreover, Article 304. § 3. of the Labor Code imposes this obligation accordingly also on entrepreneurs who are not employers (within the meaning of the Labor Code) and who organize work performed by natural persons on a basis other than employment relationships or by self-employed persons. In contrast, in English common law such protection must be provided only when a service contract is performed at the client’s site.

In Roman law, the obligation to protect a worker appears for the first time on the occasion of the mercennarius, and so concerning those who perform hired work as part of locatio conductio. It turns out that the rules of Cato had already contained indications that in the case of the mercennarius certain factors should be taken into consideration – time, age, illness, and work breaks. However, when we look at the main body of Roman law – Justinian’s Digest – solutions protecting workers are rarely mentioned under locatio conductio because the emphasis is on the services of freedmen. Together with the phenomenon of freedmen who provided operae for their patrons under the contract of stipulatio and also for third parties within locatio conductio, in Rome, there were various kinds of services previously rendered only within the noble commission contract (mandatum): medical services, teaching, etc. Both hired workers and freedmen were protected with similar measures due to the unifying concept of work (operae). Paul, a Roman jurist of 2nd c. AD, argued that the type of freedmen’s services offered to the patron should be assessed in accordance with the age, status (dignitate), health, need way of life, and other such considerations of both parties (Justinian’s Digest – D. 38,1,16, Paul, Edict, book 40). Neratius, a Roman jurist of 1st-2nd c. AD introduces a subjective element[13] that the performance of services depends on the character of the person performing them (existimatio edentis), and explains that only those services are to be performed which befit his position (dignitati), abilities, habits, and occupation (D. 38,1,50, Neratius, Replies, book 1). In the case of operae libertorum, the services and labor provided were in addition to the normal activities of the freedmen, and the protection of freedmen expanded in the cases when freedmen were dedicated fully to the patron and had no time for carrying their own businesses. As for the services provided within the platform work, these are either an addition to normal work or become the main source of income. There are fears that, when they become the main source of income, they will lead to huge uncertainty – a most precarious form of work – “a new precariat class of workers who have no job security, are slaving away for poor pay”.[14]

We may make a similar comparison to platform workers, but not with regard to all categories of platform workers. Just as the contract of locatio conductio served not only to provide work but also to provide specific services (especially those of a variety of craftsmen), so is the case with platform workers: we may distinguish between various services intermediated by the various platforms. Protection could be extended without requiring an employment relationship but merely based on a service contract and the unifying concept of work (already present in EU law). Protection could be extended only to specific types of work, e.g., with regard to the workplace and time organized by the platform or by the client; provided on the client’s site; provided upon the call/demand of the platform, etc., etc. (these provisions resemble the Roman patron’s allowing freedmen services to third parties). Protection need not necessarily be extended to all platform workers but rather only as it would seem reasonable according to the circumstances: online platform workers are more independent and flexible, while on-site platform workers require more protection. However, we note that the term ‘workplace’ needs to be understood broadly, i.e., include physical workspace and virtual workplaces.

To complement this safety valve, there are also plans to introduce a special category of “economically dependent self-employed” into the Polish Labor Code, which would serve to stabilize the situation of individual entrepreneurs who enter into quasi-employment relationships and thus to reduce the phenomenon of labor exploitation based on formally B2B relationships that nevertheless lead to an actual employment relationship. In this case, creating a “third” way of employment should be approached with caution. It has been used in some countries for a long time (Canada) or for some time (Italy), but due to the growing phenomenon of sharing economy and especially gig economy, the necessity of introducing a new “third” form of employment has been raised in many countries for some time. Meanwhile, recently, courts, legal doctrine and legislators in other countries are choosing to qualify even such a relationship as an employment relationship. In this regard, both national and international courts continue to resolve specific cases in a casuistic manner, once attributing to employment the nature of a contract of employment, while at other times maintaining its civil law status. The interpretation of the employment relationship covering relations that serve to “conceal” the employment of an employee will be conducive to greater regulatory clarity and will protect us from legislative inflation and problems with the application of new legal constructs.

Today, protection extends from employment contracts to service contracts, so the situation at the historical roots of protective provisions has been reversed. Whereas in the Antiquity, the protection of workers was developed historically within service contracts and was seen as inherent to them, today these origins have been forgotten. In fact, many of the protective laws were based on Roman law on respect for human nature, even if taken pragmatically (not based on the human dignity concept unknown to them) and sometimes solely on the basis of aequitas (equity) on natural law. To sum up, further investigations into Roman law’s[15] way of accommodating different contractual schemes for using other’s work and services can give us some interesting points to consider as regards how to set up the situation of people, who provide services in different contractual configurations today, which pose a problem for ensuring decent working conditions without expanding highly regulated employment bond and curtailing private law arrangements while at the same time realizing the violation of certain human rights.[16]

[1] Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following:
(a) effectively determining, or setting upper limits for the level of remuneration;
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
(c) supervising the performance of work or verifying the quality of the results of the work including by electronic means;
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
(e) effectively restricting the possibility to build a client base or to perform work for any third party.
[2] Jose Maria PUYOL MONTERO, “Dignified Work and Dehumanization of Work. Some Reflections On The Prehistory of Labor Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 130.
[3] W. Waldstein, Operae libertorum. Untersuchungen zur Dienstpflicht freigelassener Sklaven, Stuttgart 1986, p. 400, 403.
[4] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 144–145.
[5] Idem, p. 153–154.
[6] Idem, p. 147–150.
[7] Franciszek LONGCHAMPS DE BÉRIER, “Persona: Bearer of Rights and Anthropology for Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 53.
[8] Tobias LOCK, “Article 31 CFR”, in M. KELLERBAUER, M. KLAMERT and J. TOMKIN (eds), The EU Treaties and the Charter of Fundamental Rights, Oxford, 2019, p. 2189;
[9] Article 26 – The right to dignity at work
With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;
2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.
[10] Tobias LOCK, “Article 31 CFR”; Ellen PINKOS COBB, Workplace Bullying and Harassment: New Developments in International Law, Abingdon-New York: Routledge, 2017, p. 6.
[11] Brian BERCUSSON, European Labour Law, Cambridge, 2009, p. 380–381; Leszek MITRUS, “Godność jako podstawa aksjologiczna praw pracowniczych”, in M. SKĄPSKI, K. ŚLEBZAK, Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych, Poznań, 2014, p. 140; 142.
[12] Cfr. The whole argument on dignity, G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, in Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
[13] Thomas A.J. McGINN, “Hire-Lease in Roman Law and Beyond”, AHB 27 (2013), p. 178.
[14] Joep CORNELISSEN, Magdalena CHOLAKOVA, “Profits Uber everything? The gig economy and the morality of category work”, Strategic Organization (December 2019), p. 8.
[15] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 134–162 and G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, , in: Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life , J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).

[16] The paper has been made possible thanks to the National Science Centre (Poland) PhD holder Grant– Sonata 14 no. 2018/31/D/HS5/01951.

Grzegorz Blicharz, PhD is Assistant Professor at the Chair of Roman Law at the Faculty of Law and Administration, Jagiellonian University in Kraków, Poland, where his work focuses on Roman law, comparative law, European legal tradition, and governing the commons. He serves as co-editor of the Forum Prawnicze law journal and has held visiting appointments at the University of Oxford (2020) and Antonin Scalia Law School at George Mason University (2021).

Mónika MERCZ: Constitutional or environmental law?

Different interpretations of the precautionary principle with regard to Article P) of the Fundamental Law of Hungary

As I have already remarked in one of my previous articles, the Fundamental Law of Hungary contains an Article dedicated to preserving the environment for future generations. I have done extensive research on this Article P) (1), and made a point of mentioning a particularly important principle that governs how we interpret the Article. While there are several related principles which we can mention when discussing this issue, the one which I would like to elaborate on is the precautionary principle.

The precautionary principle, together with the prevention and the restoration principles determine human activity in relation to the environment.[1] These three principles can also be interpreted collectively,[2] but it is the precautionary principle which concerns the most common human behavior.[3] The principle stipulates that if the effect of a certain human behavior – for example a decision taken by the governing bodies – on the environment or certain elements of it cannot be shown, then the human behavior in question shall be considered something that inherently poses a potential danger to (the elements of) the environment.[4] Consequently, the legislator must consider risks which are likely or certain to occur during the decision-making process.[5] The precautionary principle is now seen as one that represents an approach to the protection of the environment or human health based on taking precautionary measures even when there is no clear indication of harm or threat thereof,[6] so that we should treat human activity as a potential threat.[7] The foundation of the principle is that our knowledge of science is limited, thus the time of protecting our environment must begin as soon as possible.[8]

While all of this is undisputed as far as what the principle itself entails, different scholars have expressed a variety of views on what the precautionary principle can govern. Notably, Gyula Bándi, the current Ombudsman for Future Generations, has a strong opinion on the issue. According to him, the precautionary principle is not only an environmental but also a constitutional principle.[9] This means that in his interpretation the principle can be applied not only to issues relative to environmental law, as we have seen it and been discussing its uses, but also to constitutional law as a whole. If the precautionary principle would be applied in the entirety of constitutional law, as he proposes, that would cause a huge shift. To my mind, it would make decision-making processes much too long as well as unstable. I personally do not think that the usage of this principle on such a wide scale could lead to further preservation of our environment and the future of the next generations. Currently, the application of the precautionary principle is working and while its expansion in theory could lead to a better level of preservation, we must think about the issue in realistic and practical terms. Rather than reaching its original goal, it would slow down development and public administration as a whole. If this approach would become legally enforceable, the proportionality test should best be applied not just in terms of whether an activity has a significant impact on the environment, but also to determine whether this principle can be applied with regard to a specific issue. I would suggest limiting its use to intersectional cases where environmental and constitutional law issues are both concerned, such as in the case of Decision 16/2015. (VI. 5.) of the Constitutional Court of Hungary.

Despite his current objective to broaden the interpretation of the precautionary principle, I have done research on the practice of the Ombudsman for Future Generations, without uncovering any examples of such broad interpretation. Taking a look at the practice of the Ombudsman for Future Generations, we can see that the precautionary principle does not appear in every report, motion or resolution. Sometimes the basis of reference is limited to Articles XX and XXI of the Fundamental Law.[10] The decisions of the Constitutional Court[11] are cited many times in all available annual reports on the activities of the Commissioner for Fundamental Rights, which demonstrate the depth of the relationship between the two bodies. This is especially important as we can see that the Constitutional Court also applies this principle in environmental issues. In 2018, the Constitutional Court stated that the chance of damage occurring when making decisions about environmental issues shall always be examined.[12] The Constitutional Court also stipulated in its interpretation that due weight must be given to this principle in the course of decision-making.[13] This all ties back to how the Constitutional Court sees the precautionary principle as a specifically environmental principle. I am curious how the process of legislation as well as the entirety of public administration would change, were the precautionary principle always present as an obstacle when new legislation was about to be introduced. Because this principle raises the standard of protection to the level of possible endangerment without sufficient scientific proof, it would be exceedingly easy to halt a legislation by summoning the precautionary principle, were it ever widely applied.

In the examination of the activities of the previous Ombudsmans, as well as the current Deputy Commissioner for the Protection of the Interests of Future Generations – Dr Gyula Bándi-, the precautionary principle has been invoked in 17 of the last 27 years, a total of 42 times. Since 2012, the application of the principle has grown exponentially, appearing every year.[14] Regarding environmental administrative issues, the need for a broad interpretation as a goal is clearly visible; the Ombudsman for Future Generations would prefer the interpretation as a constitutional principle. The non-derogation principle also raises interesting questions, as its wider interpretation in a stronger concept is also more and more commonly desired. This principle, in my opinion, could be a better fit for application in the context of constitutional law issues, however, I would advise caution in it becoming much more pronounced as well.

Another interesting piece of information to note is how different the current situation of Hungary is compared to the United States’ stance on the use of the precautionary principle. While we aim to implement further precautionary measures into public law as a whole, Gail Charnley and E. Donald Elliot write about the principle of legality, and how extensively one must present factual reports proving significant risk before any measure can be taken to counter a potentially harmful action. While I wholeheartedly agree with E. Donald Elliot’s and Daniel C. Esty’s view, that “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”, I also think that the right way to implement the precautionary principle is only within the confines of environmental law, simply because of its very nature. I would be very interested in pinpointing where the fine line between the lack of use of the precautionary principle that characterizes the USA’s approach, and the increased interpretation of the principle that threatens to overspill into public administration lies.

To sum up, I have to say that even the Ombudsman for Future Generations’ practice raises questions about the applicability of the strong concept[15] of the precautionary principle. At the end of the day, our most noble end goal is to preserve the environment, natural resources and our culture itself for future generations, but we must be careful to preserve the present’s development, too, in the process.

[1] Olajos István: The precautionary principle in the practice of the Hungarian Constitutional Court and the connected agricultural innovations, Zbornik radova Pravnog fakulteta Novi Sad 53(4):1391-1412, 2019. DOI:10.5937/zrpfns53-22769
[2] Fodor László: Környezetjog, Debreceni Egyetemi Kiadó, Debrecen, 2014; Fodor László: ”A környezetjog alapelvei”, Környezetjog (ed. László Fodor), Bíbor Kiadó, Miskolc, 2003, pp. 40-43.
[3] Timothy O’Riordan, James Cameron, Interpreting the Precautionary Principle, Earthscan, London, New York, 1994.
[4] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrár- és környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[5] HCC Decision 13/2018. (IX. 4.) Reasoning [20]
[6] Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law, Oxford University Press, New York, 2013. pp. 68.
[7] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrárés környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[8] Fodor László: Környezetvédelmi jog és igazgatás, Kossuth Egyetemi Kiadó, Debrecen, 2007 pp. 48.
[9] A jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes állásfoglalása, AJB-3658-2/2018. pp. 4.
[10] Közös jelentés egy vasútállomáson működő hangosbemondó kapcsán AJB-4642/2020. pp. 2-3.
[11] Particularly HCC Decision 28/2017. (X. 25.), HCC Decision 13/2018. (IX. 4.), HCC Decision 17/2018. (X. 10.), HCC Decision 17/2018. (X. 10.), HCC Decision 4/2019. (III. 7.) and HCC Decision 4/2019. (III. 7.)
[12] HCC Decision 17/2018. (X. 10.) Reasoning [91]
[13] HCC Decision 17/2018. (X. 10.) Reasoning [87]
[14] Mercz Mónika: Az Alaptörvény P) cikkének elemzése a jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes gyakorlatának tükrében (konzulens: Olajos István), Tudományos Diákköri Dolgozat, Miskolc, 2021. pp. 19.
[15] Szilágyi János Ede: The precautionary principle’s ’strong concept’ in the case law of the Constitutional Court of Hungary, Lex et Scientia No. XXVI, Vol. 2/2019. pp. 88-112.

Mónika MERCZ: Senior undergraduate law student at the University of Miskolc (Hungary). As a certified English legal translator, she is currently working as a project coordinator at the Mathias Corvinus Collegium (Budapest, Hungary) and is a member of the Editorial Board of the legal blog Constitutional Discourse. Mónika is the Secretary General of Miskolc (Hungary) branch of the European Law Students’ Association (ELSA). In recognition of her academic achievements, she was a recipient of the National Higher Education Scholarship 2020.

Márton SULYOK: Is American thinking about unalienable rights alien in Europe? A comment of Professor Bernal’s thoughts

Reading the most recent publication of Professor Carlos Bernal here on Constitutional Discourse about the fundamental features of American Constitutionalism in light of the 2020 Report on the Commission on Unalienable Rights lead me to dust off an old article I wrote back in 2020 when the Report was originally published. Bernal’s thoughts have induced me to look at the Report’s findings in light of European constitutionalism and its most fundamental features as they may be reflected also by the Report in a comparative point of view. I think that there are numerous grounds for cross-fertilization between American and European ways of thinking about constitutionalism and human rights, and as Bernal argues, “dialogue concerning comparative practices is quintessential to improvement.”

In the spirit of this dialogue, I would like to address some of his thoughts on American Constitutionalism through the eyes of a European constitutional scholar, with some references to the current debates in the realm of European constitutionalism. The particulars of the 2020 Report might already be known to many who are familiar with recent developments of US human rights policy, but it was essentially the product of an independent expert commission comprising 11 experts. Its objective: to provide a basic description of US constitutional thought and human rights perceptions down to the level of defining principles in terms of the natural law origins that define American commitments to innate and unalienable rights. Bernal’s post described the seven basic functions of these rights, so I am not going to focus on those, but rather treat the question what the findings of the Report might offer for thinkers regarding the most recent European debates in terms of shifting policies, which was the intended goal of the Report at the outset, setting examples and providing patterns for other countries.

With the gradual evolution of the human rights framework in the Council of Europe and also more recently in the European Union, the fundamental question that has also been at the heart of the Commission’s mandate is: how can the US preserve its leading role in promoting human rights internationally. In thinking about the future of Europe, many facets of the EU’s role as a global actor have come to the surface and with the continuing influence of the Charter of Fundamental Rights, questions of the EU’s fortitude in global relations also come to the foreground in the human rights context. (Early examples to this can be many forms of human rights dialogue – reinforced by the institutional changes of the Lisbon Treaty – used by the EU (and the EEAS) to influence both European and non-European legal systems via this “foreign policy tool” to harmonize human rights approaches.)

If we talk about the Report’s findings, relating them to European debates, we might notice the many points it makes about the role of subsidiarity. The Report seems to connect the universality of human rights with their pluralism, or as we call this in Europe, particularity via subsidiarity as ‘connective tissue’. Subsidiarity as a principle that permeates human rights thinking and regulation appears in the Report as it traces back to the 1948 UDHR, which is emphatic because it focuses on the “holistic understanding of individual rights in community” – as the Report states. According to the Report, the UDHR set forth a minimal set of rights (adopted by almost complete consensus) thus ensuring that the universal principles laid out therein will be – in every case – concretized in particular contexts, and this is the one and only possible and practical way to allow for such particularity/pluralism establishing an actual common understanding of the nature and content of these rights across cultures and nations.

The Report remains virtually silent on the issue of the changing social contract, which can be experienced by a gradual shift in the world’s political communities from the relinquishment of rights (in order to gain other rights) to increasing and overarching rights claims. What the Report does in this context, is that it evaluates “new rights”, which – if left unchecked – might weaken the force of human rights protection by a continuous and unstoppable translation of changing political preferences into newer and never legal categories. (As it will be also emphasized below, in accordance with the Report’s findings, these checks or this control over this ‘translation process’ is to be exercised by the sovereign nations-state.)

Within this context, the Report also looks at the issue when American foreign policy can take into account the possible support for a new human rights claim. Among all relevant conclusions, I would like to emphasize the one that assigns the baseline for this assessment to the originalist approach to the text and interpretation of the UDHR, then looking for possible answers in comparison with American constitutional principles, moral, political and legal tradition, by finally asking the question whether a new rights-claim can be properly inserted into existing systemic structures of human rights.

In the following, the Report also addresses the expansion of meta-juristic (extralegal) standards, looking at claims originating in such organizations that seem to operate with democratic checks and balances, which could not have been subjected to such necessary debate inherent to democratic processes in a nation state that could have solidified their legitimacy. After stating that promoting unalienable rights in other countries might be fruitful in many ways without infringing upon the sovereignty of these nation states, the Report identifies seven challenges in foreign policy action directed human rights promotion. These are: (i) the lack of human rights culture, (ii) failing international organizations, (iii) “autocracy challenge”, (iv) new technologies and rights, (v) migration, (vi) global health, pandemic, (vii) rise of violations by non-state actors.

Contrary to Bernal’s seven points, which gave rise to my writing of this reply, I am not going to treat each of these seven challenges individually, as they each would be worthy of their own dedicated blogposts. However, I would briefly like to say a few words about what the Report characterizes as the decline of “human rights culture”. The Commission talks about the decline of dignity and a “waning of concern” for basic rights. We are aware how many new rights tend to emerge – especially these days – from the many possible “penumbras” of the human rights universe, and how these rights might be frowned upon by many that are in favor of relying on a common constitutional heritage that embodies the foundation of our human rights culture. These many new details (new rights-claims) are what the Report rightly characterizes as being at fault for diverting the attention of many international organizations, not or no longer being able to fulfill their intended roles. (Let us only consider ongoing talks about UN reform, for instance.) In this context the Report also aptly states: “Diplomacy is always to be preferred but is sometimes inadequate.”

To address these challenges the Report compiles a list of 12 conclusions, and from the point of view of current debates on European constitutionalism, I would like to emphasize only four now.

1. According to the Report, the universality of human rights does not mean uniformity by bringing these rights to life. In other words, there is adequate room for particularity/pluralism until it reaches the threshold of cultural relativism. I think this is one of the strongest conclusions of the Commission’s work.

2. The above particularity is transformed into ‘margin of appreciation’, which the nation states are told to have in basing their human rights policies on their respective national traditions, and

3. National sovereignty is a vital issue of ensuring human rights.

4. As for subsidiarity, already addressed above, the Report states – in obvious reliance on the American model of federalism – that decisions need to be brought on the level closest to the life of the given community, and levels of decision-making above these may only intervene in these processes by assisting and not replacing them.

It is a very peculiar feeling for a European constitutional scholar such as myself to be reading these thoughts in the Report made in the USA any by the USA. It is peculiar because the main findings of the Report seem to echo or resonate the key arguments and keywords, slogans of every-day European (and also Hungarian) debates about European constitutionalism. These keywords are: sovereignty, essential state function, subsidiarity, nation states and their margin of appreciation in shaping legal regulation of human rights, and the ability of inter- (and supra)national organizations in holding them back. And all this in a text, which was compiled with the initial objective of serving as an exhaustive commentary of the American constitutional tradition based on one of the most influential human rights documents of the United Nations, describing why and how the United States can and may support human rights efforts of other countries.

To my mind, this just means, that no matter the context of constitutionalism, the basic debates are exactly the same, whether we are in Europe or in America.

Nil novi sub sole – There is nothing new under the sun. And this is why we can and should talk about these issues to improve our constitutional systems through the migration of constitutional ideas and cross-fertilization, despite all of the “caveats” that Professor Bernal calls attention to, in reference to Binyamin Blum’s work, where he talks about the problems of “external imposition” and “emulation” or foreign ideas, patterns or practices.

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail:

Carlos BERNAL: The Magnificent Seven. On the Functions of ‘Unalienable Rights’ in American Constitutionalism

The concept of ‘unalienable rights’ became the subject of a new chapter of the “Human Rights Era” in American Constitutionalism when, in July 2019 Secretary of State Michael R. Pompeo announced the creation of a Commission on Unalienable Rights. The Commission was an independent and nonpartisan institution, empowered to provide the US State Department with advice on human rights grounded in the United States’ founding principles and the principles of the 1948 Universal Declaration of Human Rights. In 2020, that group of highly regarded intellectuals and legal scholars published the final report of the work of the Commission. The Report recasts the concept of unalienable rights through a historical and normative analysis of American constitutionalism and its relationship with the Universal Declaration of Human Rights. The Commission’s core goal was to explore the meaning, evolution, and relevance of the concept of unalienable rights. In addition, they aimed at explaining the relationship between unalienable rights and human rights. Interestingly, the Report included a renovated conception of unalienable rights. In this post, I would like to highlight seven functions that the concept of unalienable rights can play in American Constitutionalism. This post explains these “Magnificent Seven” functions in light of comparative constitutional law.

The seven functions are: Unalienable rights (i) position Human Dignity as the highest value of the American Polity; (ii) restate the protection of unalienable rights as the mission that drives the domestic and foreign action of authorities; (iii) open constitutional discourse to practical reason and moral deliberation; (iv) bridge the divide between positive and natural law; (v) open the legal and political system to international human rights law; (vi) open the afore-mentioned system to comparative constitutional law; and (vii) create an avenue for the transnational migration of American ideas on human rights.

Let us have a brief look at these seven fundamental features one-by-one.

First, the concept of ‘unalienable rights’ places human dignity as the highest value of the American polity. This centralized placement is a consequence of the necessary connection between unalienable rights and human dignity. The adequate protection of human dignity cannot be provided without adequate protection of unalienable rights. In this way, unalienable rights are necessary entitlements that a human being ought to enjoy for living a life with dignity.

This general setting connects the concept of unalienable rights to universality as a feature of human rights. As the Report states, unalienable rights are rights (i) inherent to and in all persons; rights that they hold because of their nature or essence – which does not change throughout time or space; and that (ii) are inseparable from our humanity. International or comparative texts, such as the Preamble of the Universal Declaration of Human Rights, Article 1 pf the European Union Charter of Fundamental Rights, the Preamble of the American Convention of Human Rights, Article 1 of the German Basic Law, and the Israeli Basic Law on Human Dignity and Liberty all entrench the very same feature. In this sense, the Report is dissonant with those international sources of law – including national constitutions – that define the essence of human rights.

Second, the Report restates the protection of unalienable rights as the mission that drives the domestic and foreign actions of political authorities. Political authorities always have a constitutional mission to accomplish. For instance, Karl E. Klare associated the mission of authorities under the 1996 South African Constitution with the transformation of the “political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. In an analogous manner, the mission of American constitutionalism is the protection of unalienable rights. As the Report posits: “the distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction, and the Constitution of the United States establishes political institutions to make it a reality”.

Third, the concept of unalienable rights opens constitutional discourse to practical reasoning and moral deliberation. This is a consequence of the indeterminacy of ‘unalienable rights’ concerning, at least, three core ontological questions: (i) What are those rights?; (ii) What is their scope and content?; and (iii) To what extent can political authorities limit them? No one can answer those questions and provide a justification without applying on of resorting to practical and moral arguments. Accordingly, the concept of unalienable rights layers a ground for the deliberation of different political and moral views in a democratic and pluralistic society.

Fourth, the concept of unalienable rights bridges the divide between positive and natural law. The entrenchment of these rights in the amendments to the U.S. Constitution and relevant constitutional jurisprudence implies acknowledging that the positivity of rights (by means of text and precedent) matters. Nevertheless, it also implies opening the possibility of normative critique of political and judicial decisions by using the natural-law theories regarding the origins of these rights. Hence, citizens, organizations of the civil society, and authorities can employ all kinds of natural-rights and critical-rights theories to ground or challenge currently valid and enforceable positive rights. The strength of those critiques depends on the soundness of their justifications within the framework of the different theories of human rights, be it substantive – such as traditional Judeo-Christian theories, libertarian, democratic or welfare theories –, or procedural. Substantively speaking, Bible-based theories usually have a strong power of justification (liberty, Deuteronomy, equality, Colossians, Due Process, the destruction of Sodom and Gomorrah). Similarly, liberty- (Locke, Rawls), democracy- (Jürgen Habermas, Nino) and the social state (Sen, Herman Heller) theories are also influential. Procedurally speaking, the decision should be made about who (i.e. the people of the USA, Congress as the legislature, the Judiciary, certain majorities or minorities) shall resolve the ontological question of what procedural fairness means (to them). Besides the decision about ‘who’, the ‘how’ is also significant. This simultaneously gives rise to a possibility and a peril: overcoming some problems of ‘US exceptionalism’ vs. the possibility of an ‘abusive constitutional review’.

Fifth, the concept of unalienable rights opens the legal and political systems to international human rights law. Answering the three core ontological questions concerning unalienable rights – mentioned above – presuppose answering the epistemic question on how to access to the necessary knowledge for providing a sound response to them. Interlocutors of political and legal deliberation can use international human rights law as evidence for responding to this epistemological challenge. In this sense, the entrenchment of a right in international human rights law is an evidence of the validity of that right as an unalienable right.

Sixth, the concept of unalienable rights opens the legal and political system to comparative constitutional law. Answering those core ontological questions allows for an engagement with foreign practices concerning the recognition and adjudication of constitutional rights through the eyes of comparative constitutional law. The purpose of that engagement, which has historically elicited interesting debates, is developing a reflection on what are the “normatively preferable best practices” concerning rights in a constitutional democracy and where are the limits of legal importing, constitutional borrowing.

Finally, as for the seventh feature, the counterpart of engagement with comparative constitutional law is that the concept of unalienable rights opens an avenue for the transnational migration of American ideas on human rights. In this way, American doctrines and rules concerning the entrenchment, adjudication and protection of unalienable rights can illuminate other jurisdictions that face those never-ending challenges.

There are, however, some caveats to consider and address that might lie ahead in this sense, when ideas and doctrines travel across jurisdictions in an era of constitutional convergence. Authorities can use migrating ideas or doctrines in problem-solving, “supplying data and policy options for confronting common problems”. However, an abuse of migration can lead to “external imposition” of doctrines and values (by foreign countries, promoting change through incentives and threats), and inappropriate “emulation” (copying practices or solutions of “admired” legal systems). In any case, dialogue concerning comparative practices is quintessential to institutional improvements. The concept of unalienable rights, in the way the Commission recast it, is a key to unlock deliberation on the improvement of human rights compliance in American Constitutionalism.

Prof. Carlos Bernal specializes on the interpretation of constitutional rights and comparative constitutional change. After service as a justice of the Colombian Constitutional Court, he became a professor of law at the University of Dayton School of Law in August 2020. In 2021 he was elected as an Inter-American Human Rights Commissioner for the term 2022-2026. He has previously held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), the University of Copenhagen, the Hebrew University of Jerusalem, and the University of Leon (Spain). He has also held Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).

Márton SULYOK: Is This Loyalty In Fact Disloyalty?

On the Remarks of the German Government to the Commission after PSPP

If this was a eulogy, I would begin by saying that “it is with great sadness that we now need to face an ugly truth”, and the situation is kind of the same. Just coming to my senses after the many tumultuous events in 2021 European constitutional law, I noticed an eye-opening article on Verfassungsblog written by our colleagues, Karl-E. Hain and Frederik Ferreau, who talk about the German government walking on what they characterize as “tricky terrain”.

In the aftermath of the now infamous May 2020 PSPP decision, the general sentiment of European constitutional discourse towards the Federal Constitutional Court (GFCC) has significantly turned for the worse, casting shadows of suspicion on the judicial body for laying down the legal foundations nothing else than the beginning of Dexit. No matter how unrealistic these undertones continue to be, in this climate, the natural counteract was announced by the EU Commission in the form of an infringement proceedings, which was then closed against Germany on 2 December 2021, as Christmas came early for the newly formed German executive after the shuffle resulting from the most recent elections.

As one of their first acts as Germany’s newly inaugurated executive, the Government has sent a response to the formal notice sent by the Commission, which has rightly been described as “verfassungsrechtlich mindestens bedenklich”, which is German for ‘at least questionable in a constitutional legal sense’. The exact portion of the response they refer to roughly translates into this: The Federal Government has undertaken, “with express reference to its duty to cooperate loyally anchored in the treaties,” among other things, to “use all means at its disposal in order to actively avoid a repetition of an ultra-vires finding in the future”.

Prima facie, there are many problems with this executive statement. First off, and this is rightly acknowledged by the VerfB authors as well, a grave danger to judicial independence lies within this statement. Judicial independence is, however, often characterized as a pivotal element of the rule of law and therefore is placed on the forefront of current European debates with such countries that are thought to fall behind on the enforcement of European values on this front.

The second thing is the surprising tone of the quote talking about “actively avoiding the repetition of an ultra-vires finding” as if such a declaration by a constitutional court was a dangerous viral infection or a blossoming pandemic (by a less tasteful turn of phrase: an “ultra virus”, if you will…) The quick spread of this German “ultra virus” was envisioned by many in legal academia after 5 May 2020, but experience tells us that not many constitutional courts have “fallen in line” with this approach.

Those wo did, have been extensively criticized with relevant in-depth explanations of judicial statements that pointed to an abuse of competences. The Hungarian Constitutional Court – most often scolded by many for blindly following the GFCC in general but also in terms of sovereignty and identity control – decided in a very controversial decision reached on 10 December 2021, that the judgment of the CJEU on certain migration related issues (C-808/18) needs to be enforced without question. So not all political expectations in terms of constitutional courts are “safe bets”, when it comes reviewing the relationship of EU law and the national constitution.

Thirdly, a different narrative of the principle of loyalty emerges from the above quote, one that was so far unseen in recent European constitutional discourse. To me, it represents an unwavering conviction wrapped into the duty of loyalty under the Treaties, which triggered an executive instinct to limit the competences of an independent, autonomous and quite vocal constitutional organ created to defend the constitution and the national legal order. Were it not in Germany, where our story unfolds, the aftermath would potentially have been much louder in Europe. However, as the cited VerfB authors point out, German media was not quick to pick up on this as far as reporting and public broadcasting goes. Historical experience dictates that similar efforts to curtail the powers of a constitutional court have already been met with unforeseen uproar at the time of the adoption of the new constitution for Hungary in 2011-2012, but no European alarm bells toll as of yet for Germany – despite the welcome ones that have been duly rang by Hain and Ferreau on Verfassungsblog.

A familiar sentence pops up in their article when they talk about the core value of judicial independence: “This basic principle of our constitutional order must not be touched.” Many things have been said and written down on this issue already in the context of current Polish and Hungarian debates on the rule of law. Regardless whether we can completely agree with the arguments of either of the sides, what might already be common knowledge among these may be the opinion taken by the Polish Constitutional Tribunal (PCT) in response to interim measures imposed by the CJEU regarding the operation and composition of their Disciplinary Chambers in infringement proceedings against Poland. In that case, decided by the PCT in July 2021, it was put forth that the principle of loyalty as set in stone by the Treaties is incompatible with many specific provisions of the Polish Constitution and the institutions and branches of power created and protected by it.

In this German case, surprisingly however, this minute detail of “constitutional tissue” seemingly did not bother the executive at all, and they calmly take aim at the constitutional judiciary to put the Commission at ease by making political promises.

If nothing else, it has the impression of a chilling effect on constitutional adjudication in the context of integration and intends to put the GFCC “in its place”, especially in light of the fact that this proclamation contributed to the closure of the infringement proceedings against the country. (It is not my place to say whether the change in the leadership of the GFCC contributed to the birth of such bolder executive statement regarding the Court, as I do not have sufficiently intimate knowledge of the domestic workings of constitutional dialogue in Germany, but this is something that might one time come to light.)

On a pessimistically dystopian note, the above events might in reality be foreshadows of a scenario where if the German government would like “put their money where their mouth is”, they would need to initiate and promote legislation curtailing the powers and competences of their own constitutional court, an unquestionable symbol of German legal and constitutional culture, and an organ that may very well act as a guardian of the floodgates of EU integration and of the national constitution against executive overreach when it comes to legislation. Another problem with this statement is that it gives the impression that maintaining national sovereignty no longer seems a key issue for the German executive. “Using all means to actively avoid an ultra vires finding” might just as well mean that Germany no longer intends question anything as far as EU law goes and basically switches off an emergency break put in place for exigent circumstances, thereby dissolving its sovereign powers in the integration. This is no longer sovereignty transfer, no longer sovereignty pooling. This places no further emphasis on essential state functions and fundamental constitutional structures inherent to constitutional identity. At the very least this signals shortsightedness. In a different context, one might wonder, if a different German government would have chosen their words more carefully.

If – focusing on loyalty – we try and apply the allegory of marriage to describe the European integration and the internal dynamics of a Member State’s separation of powers and checks and balances, then two arguments can be made.

(i) European integration is (unfortunately) not a marriage without the possibility of divorce, but it is built on loyal cooperation between the Union and its Member States, despite the different interpretations of the principle that might apply;

(ii) The branches of public power within the Member States (fortunately) live in such a marriage: one without the possibility of divorce.

Turning back to the title of this post under this second angle, I asked: “Is this loyalty in fact disloyalty?” However, I could ask an additional question as well: “If yes, then against whom?”

Ideally, the two spouses (herein the Government and the Constitutional Court) should do everything in their power to engage in meaningful dialogue on the basis of – but at least not completely disregarding – this inherent loyalty (fine-tuned by checks and balances) to try and resolve their problems in lieu of solidifying fault-lines in and by their interactions. In borrowing from Garner, Lindahl and Tuori, I would like to add that these fault-lines are indicators that emerge “between what a [legal] collective can order – the orderable – and what it cannot order – the unorderable”.

In any case, such an executive reference – even if its veiled our turns out to be unfulfilled – on the principle of loyalty can indeed be considered in itself as a declaration of disloyalty to the internal equilibrium of the checks and balances working within Germany, creating fault-lines. In other words, without prejudice to whatever obligations might fall on Germany as a Member State arising out of the principle of loyalty in the Treaties, it shall never – not even by way of veiled references of executive overreach – disregard its duty of (loyalty construed as) fidelity to upholding the rule of law and the internal balance of the national legal order. This – logically – can only be maintained, if no constitutional actors are stripped of their core competences in watching over European integration and the jointly exercised competences. Constitutional courts are well within their rights to set (counter)limits and boundaries, and prevent the creation of fault-lines, and they shall not be prevented from doing so.

To use a familiar turn of phrase regarding the German case: Solange (as long as) this is not the case, serious doubts are cast on any relevant actions of the executive in light of the deep-seeded constitutional responsibility of Germany for the EU integration, called Integrationsverantwortung, allowing its national bodies, and first and foremost the GFCC to set constitutional counter-limits to it in order to realize the Integrationsprogramm.

Since I mentioned Solange, it is important to bear in mind the fact that by this statement, the German Government seems not only to go against the rationale of the PSPP judgment, but also the entire well-established German constitutional jurisprudence that provided the direct footing of its constitutional arguments, dating back actually to the 1970s, when Solange I was born.

Hain and Ferreau address this issue by alluding to the government’s control over the exercise of its responsibility for integration (developed in their 2009 Lissabon-Urteil, BVerfGE 123, 267, commonly referred to as Integrationsverantwortung – and based on which legislative commitments have also been made in that same year.

In this angle, it is interesting but not surprising, that when e.g. in Hungary the same approach was taken at the time when the Constitutional Court (HCC) abolished the Interim Measures of the Fundamental Law, and the constitutional legislator decided to put most of the annulled provisions back into the constitution by amendment contrary to the HCC’s ruling, at this moment everyone in Europe cried the death of the rule of law as one.

Now, I appreciate that no actual laws have yet been “put in motion” in Germany following up on this executive commitment (so this way the Hungarian analogy is only partially applicable), but it would be interesting to see how the story unfolds and what tone will the eventual, if any, (international) critics use in commenting on developments.

Working toward reaching the conclusions, one more remark: I am well aware that it is chic these days to act as if – along with national sovereignty and national constitutions – national constitutional courts were outdated constructs. What’s more, they are dinosaurs that need to be chased to the edge of extinction, because they do not fulfil any meaningful purpose and are seen to obstruct the effet utile of EU law. However, there are indeed lines in the sand that should not be crossed by anyone who feels a constitutional responsibility to work toward maintaining the internal balance of the integration and of domestic power structures between constitutional organs.

This German case is just as much similar to an ELE (extinction-level event) as the crusade that has been initiated by the Romanian Court of Cassation against the Romanian Constitutional Court. This latter case asked the CJEU to take into consideration whether it should be allowed that an ordinary national court disregard the otherwise erga omnes binding decision of a national constitutional court if it considers that the effet utile of EU law so requires, against established national regulations and practices. In their judgment handed down on 21 December 2021, in joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 et C‑840/19, they replied to this question in the affirmative – presumably subjecting the decision to further scrutiny in the months to come.

Without going into the specifics of the case, which is not my goal here, in the abstract, the far-reaching ripple-effects of opening such a line of argumentation under the guise of primacy of EU law forces to ask ourselves some hard questions in terms of our (dis)loyalty to the settled constitutional arrangements and (institutional) structures of our rule-of-law democracies.

  • Are constitutional courts really carnivorous dinosaurs, that need to be kept on a very tight leash, if not driven to extinction?
  • Are developments in this general spirit the first markers of overarching European political and judicial movements to abolish the inherent dualistic structure of apex courts in all countries that have adopted such a model over time and to create a monolithic system spearheaded by Supreme Courts that might or might not have powers of constitutional adjudication?
  • Does the constitutionally defined “erga omnes” (i.e. binding on everyone) effect of constitutional court decisions really no longer subsume ordinary, lower courts under “everyone” in terms of constitutional review and interpretation?

As you can see, there are more questions raised than answers that can be provided. Among them, the most important: If we keep this up, what else remains that we can be (dis)loyal to?

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail:

Márton CSAPODI: A “CT scan” with unexpected results – The Xero Flor v Poland judgment of the ECtHR

An interesting conflict arose between the European Court of Human Rights and the Polish Constitutional Tribunal (CT). In May, after scanning the CT, the ECtHR ruled that a judge of the CT had previously been unlawfully elected and that the Polish company (Xero Flor) that had brought the case before the ECtHR, after its constitutional complaint was refused by the CT, was therefore deprived of its right to have its case heard by a court established by law, as set out in Art. 6 of the Convention.[1] In response, the CT ruled that the Convention is contrary to the Polish Constitution if interpreted by the ECtHR in a way that results in the review of the election process of the CT’s judges.[2] The status and composition of the CT is a delicate issue in Poland, with a long-running constitutional dispute underlying these conflicting decisions. The case resembles to the debate between the Polish CT and the Court of Justice of the European Union.

The 2015-2016 constitutional crisis

In Poland, when the Law and Justice (PiS) party defeated the Civic Platform (PO) in both the presidential and parliamentary elections in 2015, a unique conflict between the new government and CT emerged. The election of the members of the CT was the subject of a lengthy stand-off that shook the entire constitutional system and involved all branches of power. Although the dispute over the election of the CT’s judges was finally partially resolved[3] in 2016, the constitutional conflicts continued. The dispute is not completely settled on the European stage: the issue of the CT’s status is raised in EU rule of law reports or before the ECtHR.[4] The European Parliament, for example, has gone so far as to call the CT illegitimate, putting it in quotation marks and declaring that it does not have a competence to interpret the Constitution.[5] However, this EP resolution adopted by a very large majority[6] is by its nature not binding, and is rather just a blatant political communiqué than anything to be regarded as legally relevant.[7]

It is interesting that the size and constitutional status of the Polish CT has not changed (PiS did not have a two-thirds majority), yet the maneuvers of the PiS government in power since 2015 are commonly referred to as court-packing measures.[8] The problem, however, started during the reign of the Civic Platform, which was in power until 2015: before the election defeat, they decided to insert a clause in the law on the CT, allowing them to elect new judges to replace all the judges whose terms expired in 2015 as soon as the new law entered into force. This way, instead of three judges, they elected five, but President Andrzej Duda, who took office in the meantime, considered this method to be unconstitutional and did not appoint the elected judges, who were then not allowed to sit on the court. The CT also declared unconstitutional the law on which the early election of the judges was based, but ruled that the appointment of three out of five judges was legal.[9] In the meantime, however, PiS won the parliamentary elections and did not hesitate to appoint five completely new judges and they were appointed by the President. The President of the CT, however, with reference to the CT’s previous decision, only allowed two of them to begin their mandate. An interesting situation arose: in addition to the ‘ordinary’ justices, there were justices elected by the Seym but not appointed by the president, and then there were justices elected by the Seym and appointed by the president, but not allowed to adjudicate according to the decision of the CT’s president. The Sejm tried to legally force the CT to accept the new judges, but the CT resisted, even at the cost of exceeding its powers. In the end, the expiration of the term of office of the CT President and the appointment of a new CT President by Duda decided the conflict in favor of PiS: all the judges elected by PiS were now allowed to join the CT.[10] Therefore, from the court-packing plans of the Civic Platform and PiS, the latter was a more successful attempt.

What could be the consequences of the CT’s crisis from a fundamental rights perspective?

A Polish company (Xero Flor) took its case to the CT, where its constitutional complaint was rejected.[11] They then turned to the ECtHR, claiming that their fundamental right under the Convention had been violated in the CT’s proceedings. They argued that the appointment of the judges of the CT (with only one of them still on the court) was unlawful and that their right to a fair trial under Article 6 ECHR had been violated, as the CT is not an independent and impartial tribunal established by law. The ECtHR decided in favor of the petitioner and held that the appointment of one of the judges of the CT was unlawful and that the petitioner’s right to a fair trial before an independent and impartial tribunal established by law, as enshrined in Article 6 ECHR, was therefore indeed violated.[12] Applying the test developed in Guðmundur Andri Ástráðsson v. Iceland,[13] the ECtHR concluded that the infringement in the election process of the judges reached such a serious level that it amounted to a substantive violation of the right granted under Article 6.[14]

How could the ECtHR’s decision be implemented?

As an individual measure, the ECtHR ordered Poland to pay the costs incurred by the petitioner in connection with the case. No general measure was set out in the judgment. If there was an intention to take a general measure, it could be to exclude the CT’s judge involved from sitting on the court, at least in cases where the CT is called upon to rule on individual constitutional complaints. This would not be necessary in the case of abstract constitutional review proceedings of the CT, although it cannot be excluded that the legality of the decisions of the CT in such proceedings could be questioned by some in the wake of the ECtHR ruling.[15]

Following the Xero Flor case, it became clear that there is no intention on the Polish side to align the functioning of the CT with the ECtHR ruling. This would discredit the CT’s operation retroactively to 2015, which would damage the authority of the CT and also the government’s political agenda, including its by now infamous judicial reforms. On the other hand, opposition politicians and lawyers critical of the government would of course support the ECtHR’s decision not to allow the judge involved in the case to sit on the panel, and in the event of a change of government, they would seek to restore the pre-2015 conditions not only for the CT but also for most judicial reforms.[16]

Twin decisions K3/21 and K6/21

It soon became clear that the government and the CT would prefer to challenge the ECtHR’s decision. The situation is similar to the conflict between the Polish government, the CT and the Court of Justice of the European Union. Just as the Prime Minister had asked the CT to rule on the relationship between the Constitution and EU law in the light of the CJEU’s findings in a preliminary ruling procedure, in this case the Minister of Justice, in his capacity as Prosecutor General, also turned to the CT to rule on the compatibility of the ECHR with the Constitution. At stake in both cases is the authority of the CT, i.e. the effective enforcement of its decisions within the Polish legal system. While the CJEU decision would allow ordinary courts to disapply the CT’s decisions (for example by allowing the application of norms annulled by the CT) by applying EU law,[17] the ECtHR judgment discredits the CT with regard to individual constitutional complaints.

The judgment on the relationship between EU law and the Constitution received a lot of media coverage, sometimes accusing the CT of indirectly pushing Poland towards leaving the EU by declaring some articles of the TEU unconstitutional. Although the CT did indeed seem to rule the Treaty unconstitutional, it used a language reminiscent of the German Bundesverfassungsgericht’s Solange rulings. The CT ruled that certain articles of the Treaty are unconstitutional insofar as certain conditions are met.[18] The existence of these conditions is subject to the practice and decisions of the CJEU, so the decision does not fundamentally attack the Treaty but rather the CJEU’s expansive jurisprudence. The judgment has no direct – let alone tragic – consequences, but it is rather a pre-emptive strike anticipating the CJEU’s future decisions.[19]

A judgment deceptively similar to this one has been published by the CT regarding the relationship between the ECHR and the Constitution. It held that if the Strasbourg judges interpreted Article 6 of the ECHR as including the Constitutional Tribunal within its scope, or as allowing the ECtHR to review the legality of the election of constitutional judges, the ECHR is contrary to the Polish Constitution.[20] So the Convention is contrary to the Constitution of Poland insofar as the ECtHR interprets it so. With this, the CT has ruled out any internal general measure as a possible consequence of the ECtHR’s decision. It seems that the Polish CT does not wish to tolerate its own internal authority being undermined by international courts.

The ECtHR did not treat the Polish Constitutional Tribunal gently even after the Xero Flor case and interestingly the Polish government did not ask for the cases (Xero Flor, Broda and Bojara, Reczkowicz and Dolinska-Ficek and Ozimek) to be referred to the Grand Chamber.[21] Instead, the CT was left to decide on the issue, and it stood its ground. It could not have done otherwise, because then it would have inevitably been rendered weightless in the internal and international judicial system. But that might not make the ECtHR back down, so anyone whose constitutional complaint is rejected by the CT can turn to Strasbourg with high hopes.

In this case, the ECtHR did not merely apply the Convention, but interpreted domestic constitutional norms in order to give effect to Article 6. Deciding on the positive or procedural legality of domestic legal acts is a task that is usually attributed to domestic high courts. Apparently, the ECtHR is ready to enter the field of domestic constitutional adjudication in cases related to the independence of the judiciary and to open a new arena in Strasbourg, where disagreements of mainly political nature can be decided by judges.

[1] Xero Flor w Polsce sp. z o.o. v. Poland, Judgment of 7 May 2021, no. 4907/18. §6
[2] Judgment Ref. No. K 6/21
[3] It was partially resolved, meaning that on the question of mandates the CT is not conflicted anymore with the government or the Seym – but it is since then in conflict with other courts (domestic and European).
[4] See e.g. European Commission: Commission Staff Working Document – 2020 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 30.9.2020. [SWD(2020) 320 final] and Commission Staff Working Document – 2021 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 20.7.2021 [SWD(2021) 722 final]. Alongside the Xero Flor case, see Reczkowicz v. Poland, Judgment of 22 July 2021, no. 43447/19.
[6] 502 MEP’s voted for the resolution, 153 voted against and 16 abstained.
[8] See e.g. Bugaric, Bojan; Tushnet, Mark: Court-Packing, Judicial Independence, and Populism: Why Poland and the United States Are Different, VerfBlog, 2020/7/11,; Kustra, Aleksandra: Kryzys konstytucyjny w Polsce. Od planu upakowania sądu (court-packing) do negowania orzeczeń Trybunału Konstytucyjnego. Toruńskie Studia Polsko-Włoskie. 2016/12/16,; Sweeney; Richard J.: Constitutional conflicts in the European Union: Court packing in Poland versus the United States. Economics and Business Review 2018/4. p. 4
[9] Interestingly, the revision of this law was initiated by PiS, but their motion was withdrawn, so the CT could not have continued the procedure if the MPs of the Civic Platform had not submitted a motion (which had the same wording as the PiS motion) for revision of the law they earlier adopted.
[10] For detailed analysis of the 2015-2016 constitutional crisis in Poland see e.g. Muszyński, Mariusz: Legal analysis of the election process of the judges of the Constitutional Tribunal in the autumn of 2015. Iustum Aequum Salutare 2017/1.; Zubik, Marek: A.D. 2015/2016. Anni horribili of the Constitutional Tribunal in Poland. Przegląd Konstytucyjny 2018/2.; Csapodi, Márton: Közjogi állóháború – A 2015-2016-os alkotmánybírósági válság Lengyelországban. In: Kurunczi, Gábor; Varga, Ádám; Pogácsás, Anett (eds.): Vis unita Fortior. Válogatott tanulmányok joghallgatók tollából. Pázmány Press, Budapest, 2021.; Czarny, Piotr: Viták a lengyel Alkotmánybíróságról – (Az alkotmányjogi problémák rövid összefoglalása). Parlamenti Szemle 2017/2. p. 131-147.; Sadurski, Wojciech: Poland’s Constitutional Breakdown. Oxford University Press, New York, 2019.; Banaszak, Bogusław: Constitutional Tribunal of Poland: changes in the appointment of judges (legal analysis). Website of the Constitutional Court of Moldova, 2016/02/16,
[11] Admissibility requirements were found unfulfilled.
[12] Xero Flor w Polsce sp. z o.o. v. Polska, Judgment of 7 May 2021, no. 4907/18.{%22itemid%22:[%22001-210065%22]}
[13] Guðmundur Andri Ástráðsson v. Iceland of 1 December 2020, No. 26374/18.{%22itemid%22:[%22001-206582%22]}
[14] Grabowska-Moroz, Barbara: Strasbourg court entered the rule of law battlefield – Xero Flor v Poland, Strasbourg Observer, 2021/09/15,
[15]Szwed, Marcin: What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal, VerfBlog, 2021/5/09,
[16] See e.g. Sadurski, Wojciech; Dalkilic, Evin; Steinbeis, Maximilian: What happens after the Polish Elections?: An Interview with Wojciech Sadurski, VerfBlog, 2019/8/18, Interview made before the 2019 parliamentary elections. Sadurski, Wojciech: The Disciplinary Chamber May Go – but the Rotten System will Stay, VerfBlog, 2021/8/11,
[17] CJEU Judgment C-824/18 A.B. and others (Nomination des juges à la Cour suprême – Recours) [ECLI:EU:C:2021:153] Para 150 „[…] the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin [emphasis added], and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.” It should be added that the statutory provision providing the base for the„jurisdiction previously vested in” the Supreme Administrative Court was repealed by the Constitutional Tribunal.
[18] Judgment Ref. No. K 3/21
[19]Csapodi, Márton: Kiugrik-e a nyúl a bokorból? A lengyel alkotmánybíróság és az Európai Bíróság viszálya. Országút 2021/23.
[20] Judgment Ref. No. K 6/21.
[21] They did in Reczkowicz, but then withdrew the request. See Garner, Oliver; Lawson, Rick: On A Road to Nowhere: The Polish Constitutional Tribunal assesses the European Convention on Human Rights, VerfBlog, 2021/11/23,

Márton Csapodi is a fifth year law student at Pázmány Péter Catholic University Faculty of Law and Political Sciences and is currently member of the MCC Center for Constitutional Politics. He completed two semesters at the Faculty of Law and Administration of the Jagiellonian University, Poland with Erasmus+ studies. He received National Higher Education Scholarship in 2019 and 2020. He also studied for two years at the MCC School of International Relations.