Kustra-Rogatka, Aleksandra

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The Rule of Law Crisis as theWatershed Moment for the EuropeanConstitutionalismAleksandra Kustra-Rogatka 2019-11-14T08:44:05The European Commission’s strategy for the Rule of Law was published just a fewweeks after the CJEU’s seminal judgment in Commission v. Poland. Consequently,the time of its publication coincided with the judicial confirmation of the sad realitythat the departure from the liberal democracy standards in both Hungary and Polandcannot be define as moderate anymore and that the judicial independence in bothcountries is at stake.Is a soft law instrument the right object of assessment in a situation where mostcommentators on the ongoing rule of law crisis summarise previous EU actionswith the statement: too late, too long, too mild? This piece offers a look at the Julyblueprint for action as a political declaration which provides important generalstatements regarding the concept of the rule of law within the EU legal systemin times of democratic backsliding in Member States. Starting with a discussionabout the scope of the rule of law principle in the EU and an argument against itsenforcement, this blog post will analyse the potential of the current rule of law crisisto mark a unique historical change in the European constitutionalism, both on the EUand national level.The Rule of Law as an Essentially ContestedConcept? The European Commission in search forcore elements.In 2002 Jeremy Waldron published the essay with the provocative title: “Is the Ruleof Law an Essentially Contested Concept (In Florida)?” (pp. 137-164) which looselyrefers to another academic piece published in 1956 by the Scottish philosopherWalter Bryce Gallie.1)W. B. Gallie, Essentially Contested Concepts, Proceedingsof the Aristotelian Society, New Series, Vol. 56 (1955 – 1956), pp. 167-198. ForWaldron, the turmoil surrounding the counting and recounting of votes in the Stateof Florida in the 2000 U.S. presidential election served as an illustration of ambiguityand to some extent overuse of the Rule-of-Law card which has been played by theparties whenever it suited (138). The essay presents a splendid overview of variousjurisprudential interpretations of the rule of law as a political ideal. The multiplicityof theoretical approaches to the rule of law, no matter how fascinating for legalphilosophers is, nevertheless, a pitfall for any political body faced with the task offormulating an overall strategy for dealing with obvious and systemic rule of lawviolations.- 1 -The Commission’s statement presented in the first paragraph of the July blueprint foraction demonstrates awareness of this problem. The Commission holds that:“the rule of law is a well-established principle, well-defined in its core meaning.This core meaning, in spite of the different national identities and legal systems andtraditions that the Union is bound to respect, is the same in all Member States.(…)Under the rule of law, all public powers always act within the constraints set out bylaw, in accordance with the values of democracy and fundamental rights, and underthe control of independent and impartial courts.”Such an approach to the essence of the rule of law draws parallels betweenthe Commission and the work of Philip Selznick and Martin Krygier who seethe reduction of the arbitrary use of power as the central value and point to theimportance of a contextual approach to realising that value: reducing arbitrarinessmay require very different specific measures from one society to another.2)Cf.E. Mak, S. Taekema, The European Union’s Rule of Law Agenda: Identifying ItsCore and Contextualizing Its Application, Hague Journal on the Rule of Law 2016,Vol. 8, p. 27. While recognising current challenges to the rule of law in MemberStates, the emphasis has been put on recent cases with a resonance at the EU levelwhich have centred on the independence of the judicial process. Other examplesmentioned in the blueprint for action have concerned weakened constitutional courts,an increasing use of executive ordinances, repeated attacks from one branch of thestate on another, or more widely, high-level corruption, abuse of office and attemptsto diminish pluralism and weaken essential watchdogs such as civil society andindependent media.The central place of judicial independence in the rule of law concept presentedby the Commission is not surprising. The EU legal system works through nationalcourts that directly apply EU law. The threat to the independence of national courtscalls into question the effectiveness of the entire EU law system. However, thepreliminary ruling procedure serves as an effective tool for referring systemicquestions regarding rule of law to the CJEU. The recent rulings of the EuropeanCourt of Justice in Case C-64/16, Associação Sindical dos Juízes Portuguesesv. Tribunal de Contas, case C# 216/18 PPU, LM,  case C-619/18, Commission v.Poland, and case C#192/18, Commission v. Poland prove that effective judicialprotection by independent courts (Art. 19 (1) TEU) is a specific expression of the ruleof law principle and that the independence of national courts is essential to ensuresuch judicial protection (see also EU Comm, Strengthening the rule of law withinthe Union – A blueprint for action). Although the organisation of the national judicialsystem falls within the jurisdiction of the Member States, they must comply with EUlaw obligations when exercising that competence, and therefore this may be subjectto review by the Court of Justice.Nevertheless, the emphasis on the material elements of the rule of law – suchas the independent judiciary – does not go hand in hand with indications of theroot causes of rule of law violations often associated with non-compliance withformal standards of the rule of law, above others the eight desiderata of Lon Fuller’s“internal morality of law”. According to Fuller, laws should be (1) general, (2) publicly- 2 -promulgated, (3) prospective, (4) intelligible, (5) consistent, (6) practicable, (7) nottoo frequently changeable, and (8) actually congruent with the behaviour of theofficials of a regime.3)L. L. Fuller, The Morality of Law, Revised Edition, New Haven:Yale University Press, 1969, p. 39. In particular, the case of Poland proves that theinstrumental changes in the regulations of parliamentary chambers, express paceof the legislative procedure, the lack of adequate (and sometimes any) vacatio legisand statutory amendments following one after another enabled the PiS governmentto introduce reforms violating substantial elements of the rule of law. Therefore, theCommission’s search for the core elements of the European rule of law conceptshould take into account to a greater extent the formal aspect of the rule of law whichhas been left in the background of the strategy. The infringement of the basic law-making principles is the underlying cause for the present challenges to the rule oflaw in EU.About Constitutional Identity, CommonConstitutional Values and the Fetishisation ofPolitical ConstitutionalismMartin Krygier pointed out that “rulers do many bad things, often parading themunder the mantle of the rule of law”. This apt observation acquires unique relevancein the context of the Commission’s blueprint for action aimed at preventing rule oflaw violations. Recent academic insights point to the construction of an argumentaround constitutional identity as one of the jeopardies to effectively counteract thefurther erosion of the rule of law in Member States. According to this position, withthe emergence and ongoing consolidation of competitive authoritarian regimesespecially in Hungary and Poland, these governments have started to use the ideaof a constitutional identity to justify their dismantlement of checks on their powerand to shield themselves against potential EU interventions. In my opinion, thisobservation is only accurate regarding the abuse of constitutional identity as anargument against the rule of law and not about constitutional identity itself. Until theilliberal government violating the rule of law does not obtain a constitutional majority(as happened in Hungary), it is bound by binding constitutional norms. This meansthat constitutional identity can also be used as an important argument in the debateon the essence of the European concept of the rule of law. The constitutional identityof Member States, in addition to the individualising elements characteristic for thisidea, turns out to contain elements of a  more universal dimension. One of themis the rule of law. Therefore, the constitutional identity of a Member State has thesalient potential for the pluralistic legitimisation of the enforcement of the strongunion of values. This, however, requires noticing and emphasising the similaritiesbetween the universal elements of Member States’ constitutional identities (Art. 4 (2)TEU), common constitutional traditions (Art. 6 (3) TEU) and  six foundational valuesof the EU (Art. 2 TEU).The real threat to the rule of law in the EU is fetishisation and instrumentalisation ofpolitical constitutionalism. While the current theoretical trend to emphasise the dualnature of the constitution (both legal and political) enables constitutional scholars- 3 -to pay attention to the long forgotten (or purposely hidden) political foundationsof constitutionalism,  it becomes a dangerous tool in the hands of politiciansstriving for authoritarian power. The contemporary populism, neo-authoritarianism,democratic backsliding and retrogression of liberal constitutionalism has emergedin reprisal of the domination of the legal and judicial elites. The pendulum whichhad leaned too much towards legal constitutionalism, bounced back to the sideof political constitutionalism. Illiberal governments instrumentally use this swingeffect, transforming the idea of political constitutionalism into de facto abusiveconstitutionalism or statutory anti-constitutionalism.Democratic backsliding as the new constitutionalmomentum for the EUAccording to Miguel Poiares Maduro, European constitutionalism promotesinclusiveness in national democracies by requiring national political processes totake into account out-of-state interests that may be affected by the deliberationsof those political processes. European constitutionalism can constitute a form ofself-imposed external constitutional discipline on national democracies. There aremany instances were domestic political malfunctions can be better corrected byexternal constraints. These may force national political processes to rationalisenational policies that have, for example, become path-dependent or captured bycertain interests. In many such instances, EU law’s imposed discipline rationalisesand, often, reignites a more informed and genuinely open deliberation in the nationalpolitical process. Therefore, the current rule of law crisis has the potential to bea watershed moment for European constitutionalism on both an EU and nationallevel. The analysis of the limits of the national constituent power in the context ofparticipation in the pluralist European constitutional order can help define Europeanconstitutionalism and its constitutional essentials within a pluralist, overlappingconsensus. Unfortunately, the Commission does not seem to recognise thispotential. The July blueprint for action is just another piece of (very) soft law whichlacks a broader political vision and ignores the primary causes of the rule of lawviolations.The progressive erosion of the constitutional democracy in several EU MemberStates sets ambitious tasks for the new Commission. It should go beyond theprevious strategy and propose solutions which will take into account the importanceof the current rule of law crisis for the future of European constitutionalism. Hopefullythe Commission will rise to the momentousness of this period.References• 1. W. B. Gallie, Essentially Contested Concepts, Proceedings of the AristotelianSociety, New Series, Vol. 56 (1955 – 1956), pp. 167-198.• 2. Cf. E. Mak, S. Taekema, The European Union’s Rule of Law Agenda:Identifying Its Core and Contextualizing Its Application, Hague Journal on theRule of Law 2016, Vol. 8, p. 27.- 4 -• 3. L. L. Fuller, The Morality of Law, Revised Edition, New Haven: Yale UniversityPress, 1969, p. 39.- 5 -

The Rule of Law Crisis as the Watershed Moment for the European Constitutionalism

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The Rule of Law Crisis as the Watershed Moment for the European Constitutionalism

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