H. J. Blanke & A. Sander: The European (Union's) rule of law and its objectors -some observations on the situation in Poland with a side glance at Hungary-

The European Union (EU), as a community of law and values (“Rechts- und Wertegemeinschaft”)[01], is founded on the premise that the Member States share a set of common values and principles, including respect for fundamental rights, democracy and the rule of law (Article 2 TEU). This premise is an expression of the constitutionalisation of the EU Treaties, which in normative terms have developed the peace project of the European Economic Community into a more comprehensive and state-like concept of political integration. It implies that each Member State recognises and respects these legally binding values and principles as the Union’s foundation. A Member State’s respect for the rule of law is a prerequisite for the enjoyment of all of its membership rights deriving from the Treaties. Developments in parts of East-Central Europe, however, give rise to concerns about their compliance with the Union’s founding values, notably the rule of law. As outlined once again in the Commission’s Rule of Law Repor[02], areas of concern include, above all, the independence and impartiality of the judicial system. While the EU has developed several legal instruments over the years to strengthen the rule of law in the Union, challenges encountered, particularly in Poland and Hungary, call into question the Union’s political and legal ability to address the shortcomings in the rule of law of its Member States.

In this context, the ruling of the Polish Constitutional Tribunal of 7 October 2021 (Ref. K 3/21) has been particularly controversial. It not only runs counter to fundamental principles of the Union’s legal order but also tends to jeopardise the Union’s very understanding as a democratic community. Though this ruling marks only the latest peak in an escalating dispute between the EU and Poland after the country has been experiencing a regression in the process of democratic transition and the independence of the judiciary under the governing Law and Justice (PiS) party. It does, nonetheless, point to a general erosion of rule of law standards, especially in the so-called Visegrád countries, a region where tendencies towards an “illiberal democracy” are increasingly manifesting themselves. The Polish case is, therefore, being used as an example to illustrate rule of law distortions stemming from legislative and judicial practices and decisions that are contrary to the rule of law[03].

The analysis reveals that the Union’s institutions must take greater efforts to ensure that this sine qua non condition for a functioning democracy is upheld throughout the Union. When speaking at Charles University in Prague on the occasion of the Czech presidency of the Council of the EU, Federal Chancellor Olaf Scholz also emphasised the urgency needed to enable the Commission to initiate infringement proceedings for violations of fundamental EU values. Above all, the rule of law is “a fundamental value that should unite our Union. Especially in times, when autocracy is challenging our democracies [...]”[04].

1.1. The Rule of Law as a Fundamental Value of the Council of Europe and the Union.

The EU is, to put it in the words of Walter Hallstein, essentially a “community of law” (“Rechtsgemeinschaft”);[05] the Court of Justice described the former European Economic Community as “a Community based on the rule of law”[06]. This suggests that the idea of a value-based international order is not universally shared[07]. The European rule of law differs from the somewhat younger “international rule of law”[08] by a wide range of legally binding sub-principles which, often developed by case law of national courts – just as the principle of the protection of legitimate expectations –, became inherent to the constitutional essence of the Union. Alongside respect for human dignity, freedom, democracy, equality and human rights, the rule of law not only represents a guiding principle common to all Member States, but it is also a condition for safeguarding all other fundamental values as well as the rights and obligations arising from the Treaties[09]. Before a State can accede to the European Union (Article 49.1 sentence 1 TEU, referring to Article 2 TEU), its accession to the Council of Europe (CoE) is a requirement for the opening of accession negotiations with the EU. Against this backdrop, the impact of the principle of the rule of law together with the States Parties’ commitment to European “ideals and principles” as their “common heritage”, laid down in Article 1 point (a) and Article 3 of the CoE Statute, has a legally unifying effect for all (future) Member States[10].

The Committee of Ministers underscored the legal importance of these provisions in its Resolution of 16 March 2022, finding that, as a result of the launch of military aggression against Ukraine, the Russian Federation “has ceased to be a member of the Council”[11], also because this aggression constitutes “a serious breach of Article 3 [of the CoE Statute]”[12]. With the expulsion, Russia also ceased to be a High Contracting Party to the European Convention on Human Rights with effect from 16 September 2022[13]. This shows that Europe’s leading human rights and freedoms document, i.e. the European Human Rights Convention, can only be credibly recognised by a European State as legally binding within its jurisdiction as long as it upholds the values of the CoE Statute. In particular, through the right of the citizens to file individual applications (Article 34), the Convention ensures effective human rights protection. A decisive factor for the harmonisation of “minimum standards” is above all the jurisprudence of the European Court of Human Rights (ECtHR).

Prospective EU members are assessed for compliance with the rule of law during the accession negotiations (Article 49 TEU). Beyond the CoE and the ECtHR standards, the assessment is made on the basis of the Copenhagen criteria, which include political and economic conditions as well as the administrative and institutional capacity to effectively implement the Union’s “acquis communautaire”[14]. Indeed, when reviewing applications for accession, particular attention is paid to the rule of law principles, including the separation of powers, effective judicial protection of individuals’ rights by an independent judiciary[15], and the fight against corruption or the misspending of EU funds[16]. Pursuant to Article 4.3 (2) TEU, which enshrines the duty of mutual respect and loyalty, Member States cannot subsequently, i.e. after the accesion to the Union, amend their legislation in order to undermine the protection of the rule of law[17]. Article 4.2 TEU, which enshrines the respect of the Union for the national identities of the Member States, does not permit them to disregard the obligations imposed on them by EU law in areas of national competence related to the exercise of essential State functions[18].

Article 2 TEU conveys “values which are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles comprising legally binding obligations for the Member States”[19]. These supranational value standards essentially establish the principle of homogeneity not only vis-à-vis national constitutions but also in relation to the constitutional principles of the Union deemed necessary for the process of European integration[20]. The Union is a structured network of principles which are all based

“on the fundamental premise that each Member State shares with all the other Member States, and recognises that it shares with it a set of common values on which the Union is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and, therefore, that the EU law implementing these standards will be respected”[21].

Recourse to Article 3 TEU, which lays down the objectives of the Union, further confirms that the rule of law represents a legally binding constitutional objective of the Union[22]. As such, it is binding on the Member States when acting within the Union framework, which is also reflected through the principle of sincere cooperation (Article 4.3 (3) alternative 2 TEU), obliging all Member States neither to impair the uniform application of Union law nor to prevent the effectiveness of measures taken for its implementation[23].

It is widely acknowledged that deference to the rule of law is closely linked to democratic values and norms, laying the foundation for the proper functioning of democratic processes and institutions. Not only in the European context but also within the United Nations framework, the rule of law, democracy and fundamental human rights are seen as co-constitutive, and the process of ensuring their respect is both convergent and mutually reinforcing[24]. Against this background, the European Parliament (EP) has already called for the establishment of a Democracy, Rule of Law and Fundamental Rights (DRF) mechanism [25] on the basis of an inter-institutional agreement under Article 295 TFEU, again highlighting the interplay of these three core values.

The rule of law not only enables the effective application of Union law and consequently ensures the validity of a democratically legitimised order, but also promotes an investment-friendly market economy. It limits the government’s exercise of power and upholds the principles of holding free and fair democratic elections as well as enforcing and protecting fundamental civil and political rights and freedoms, such as the right to a fair trial and access to justice. “For democracy through Law”, as the official title of the Venice Comission of the Council of Europe reads, is also a permanent mandate for the European Union[26].

Being linked to the concept of the State, a brief comparative overview of what the European rule of law concept entails seems useful to emerge the many characteristics it has in comparison to thinner concepts outside the Union[27]. Since the late 19th century, exercising governmental powers or carrying out State tasks through law-abiding and accountable (State or non-State) institutions in a system of division of powers is a vital element of the rule of law. A common distinction is usually drawn in this context between the concepts of the rule of law in continental Europe (“Rechtsstaat”/principle of the legal State, “État de droit”) and the Anglo-Saxon sphere (rule of law). The different concepts are intrinsically linked to the legal and political culture and experience surrounding them[28].

The common law concept of the rule of law was decisively shaped in 1885 by the British constitutional lawyer and theorist Albert Venn Dicey who not only emphasised “parliamentary sovereignty”[29], but also identified “three distinct though kindred conceptions […] under [the] expression […] ‘rule, supremacy, or predominance of law’”[30]. These include “the absence of arbitrary power on the part of the Crown, of the executive, and of every other authority in England”, “the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts”, and the fact that

“the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are […] the result of judicial decisions determining the rights of private persons […], in short [that the English Constitution] is a judge-made constitution”[31].

In particular, with regard to the second feature (equality of all classes before the law) and the third limb, i.e. the unwritten constitution, the Diceyan view of the rule of law is ambiguous[32], and similar uncertainties surround the historical meaning of the phrase ‘government of laws, not of men’ (Article XXX of the Constitution of Massachusetts, 1830)[33].

The German concept of “Rechtsstaat” traces its origins to Immanuel Kant whose work ‘The Metaphysics of Morals’ (1797) was a philosophical doctrine of the rule of law. He demanded that the State should limit itself to the State purpose of ‘security’ and strive for the ‘State of greatest conformity of the constitution with principles of law’[34]. Against this backdrop, the Rechtsstaat was considered a “Vernunftsstaat” (“Stato di ragione”)[35]. The conservative Lutheran Friedrich Julius Stahl (1802–1861) described this principle in a way that satisfied all parties, conservative and liberal circles:

“The state should be a constitutional state, that is the slogan and is also in truth the developmental impulse of modern times. It should precisely determine and unbreakably ensure the paths and limits of its effectiveness like the free sphere of his citizens in the manner of law and should not turn into reality (enforce) moral ideas for reasons of state, i.e. directly, beyond what belongs to the sphere of law. This is the concept of the ‘rule of law’ [...]”[36].

One may doubt whether this is an expression of a legal concept, but it met the need for a politically unsuspicious and at the same time economically useful[37] definition of its content[38].

The jurist and politician Robert von Mohl considered the objective of the “Rechtsstaat” as being to organise the coexistence of people in such a way as to ensure that each member is supported and promoted as freely and diversely as possible in the exercise of his or her powers[39]. The idea of the “Rechtsstaat” thus was developed as a concept for strengthening individual freedom in contrast to the absolutist State and a State where edicts (i.e. “Policeyordnungen” such as clothing or marriage-related regulations) were issued in the territories and on the “Reich” level, designed to form the foundation of a “good rule”[40]. Also, Otto Bähr’s demand for judicial control of public administration focused on the objective of ensuring individual freedom[41]. Like him, Otto von Gierke[42] and Rudolf Gneist linked the enforceability of public legal positions with the principle of the rule of law, whereby Gneist called for specialised administrative courts[43].

While the “Rechtsstaat” was initially understood in purely formal terms and was not directed towards the enforcement of substantive human rights[44], it was later enshrined in the Basic Law, the German Constitution (“Grundgesetz”), as a constitutional principle[45]. It is expressed in particular in the provision of Article 20.3 of the Basic Law, but also in other provisions[46]. It is against this background that this principle, as advocated by Laurent Pech, is best understood as a “generic constitutional principle of governance”[47]which, due to its multi-layered nature, comprises formal and substantive elements.

The levelling language use of the terms Rule of Law or, synonymously, “prééminence du droit or règne de la loi”[48], on the one hand, and “Rechtsstaat”, “État de droit”, Estado de Derecho, or “Stato di diritto”, on the other hand, is a proof that in numerous European and non-European States the Anglo-Saxon rule of law and the continental European idea of the principle of the legal State have merged into a uniform model through multilateral reception[49]. However, due to its considerable variability and uncertain parameters, one can observe even among EU Member States a different perception of its particular items (“sub-elements”)[50], especially when it comes to the national “implementation” or transposition of the broad concept in national statutory law. According to Carl Schmitt, the word “legal State” can have as many different meanings as the word “law” itself and, moreover, as many different meanings as the organizations implied by the word “State”[51]. Against this background, it appears appropriate to acknowledge also a dynamic understanding of the rule of law, which is subject to the respective national constitutional context[52].

According to Article 2 of the 1997 Polish Constitution, Poland is “a democratic State ruled by law and implementing the principles of social justice”. Consistent with continental European constitutional tradition, the elements of democracy, the rule of law and the welfare State are closely interlinked in this context and may only realise their full efficacy in conjunction with each other. As such, the “państwo prawa” (rule of law) is considered an integral part of the current Polish legal system. The Constitution of 1997 reflects the transition of the socialist State to the Western-oriented Republic of Poland. As part of the Polish-Lithuanian Commonwealth, Poland adopted its first written Constitution (“konstytucja 3 maja”) on 3 May 1791, “the first of its kind in Europe” (N. Davies). It was one of the first approaches to enforcing the separation of powers, i.e. the principle whose protection is now at stake vis-à-vis the PiS government. Although the 1791 Constitution remained in force only for a short period of time until the second partition in 1793[53] after the Polish-Russian War, it continued to serve as an important source of reference for Polish constitutional heritage[54]. Yet after the third and last partition in 1795, Poland remained under foreign rule until it regained its independence in 1918 with the establishment of the Second Polish Republic.

The two Constitutions of 1919 and 1921 initially attempted to reform the 1791 Constitution. The Second Polish Republic (1918-1939), including the April Constitution of 1935 containing certain elements of authoritarianism, ended with the outbreak of the Second World War, with Poland first being invaded by Nazi Germany and later, in the post-war era, being brought under communist Soviet rule (Constitution of 1954). It was only with the disintegration of the Soviet Union in the early 1990s that Poland was finally able to regain its independence as a sovereign State[55]. After the first amendment of 7 April 1989 to the Constitution of 1954, the Act of 29 December 1989 on the Amendment of the Constitution of the Polish People’s Republic put an end to the constitutional system based on the Marxist-Leninist doctrine and laid the legal foundations for the formation of a democratic system of government in Poland. The provision, stating that “the Republic of Poland is a democratic state ruled by law [“państwo prawa”] and implementing the principles of social justice” (until 1997 applied as Article 1 of the post-revolutionary constitutional system), was of key importance for the systemic changes.

During the Second Republic, the term państwo prawa was not used in Polish legal doctrine[56]. Instead, the usual phrase was “praworządności” or “zasada praworządności”, which translates into the “authority of law” and the required legality of government action. This reflects the merely formal understanding of legality in a law and order State, i.e. the rule by laws[57], which was already conceived in the Constitution of 1935[58]. The “Rechtsstaat” concept in its German connotation had an important impact during the process of transformation after 1989. Although the term was unknown to most Polish lawyers, its reception was to mark also in constitutional terms the change of system, i.e. the replacement of the socialist Constitution of 1954 by a Western-oriented model of the “Republic of Poland”.

During the long period of transition between 1989 and 1997, the Polish Constitutional Tribunal, which started working in 1986, defined the basic elements of Polish statehood in relation to the European-Atlantic oriented notion of the rule of law also by means of “constitutional borrowing”. In its German-influenced interpretation, the Tribunal developed it in terms of a formal but also (human dignity-oriented) substantive concept, which thus became a decisive yardstick for judicial review[59]. However, when the Constitutional Tribunal examines the violation of a detailed constitutional provision relating to a substantive aspect of the rule of law, it does not apply at the same time the rule of law test[60]. The normative content of freedoms and rights is measured against the guarantee of the dignity of the person (Article 30)[61].

Against this background, the 1997 Constitution refers to a number of sub-principles underpining the rule of law:

1. The organs of public authority shall function on the basis of, and within the limits of, the law (Article 7);

2. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers (Article 10.1);

4. Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court (Article 45.1);

5. The courts and tribunals shall constitute a separate power and shall be independent of other branches of power (Article 173, and eight other provisions – point 2.1);

6. Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes (Article 178.1).

A look at the 1997 Constitution and the case law of the Polish Constitutional Tribunal (until 2015) shows that the principle of the rule of law has been given concrete expression in the legal practice of our Eastern neighbour after 1989 based on common European standards. Yet it is not only due to discontinuities in Polish constitutional evolution, but in particular to the controversial judicial reforms under the ruling national-conservative PiS government that consolidation of the rule of law in Poland, distinctive for the years between 1990 and 2015, has declined sharply. Not only is this process stagnating, rather, much of its achievements are being reversed (point 2.1.2).

1.4. The Need to Specify the Rule of Law in Constitutional and Administrative Law Standards.

As the European Court of Justice has ruled, the “principles of the rule of law stem from the constitutional and political traditions of the Member States and their content [of the rule of law sub-principles] is specified in the case law of the [national] constitutional courts”. Although

“international organisations, in particular the Council of Europe, have drawn up certain criteria for assessing whether those principles have been observed, the specific embodiment of those principles is confined, in EU law, to mentioning the aims which they pursue. In view of the differences between the Member States as regards their national identities, their constitutional and legal systems and their legal traditions, the EU legislature cannot specify, for all the principles of the rule of law, the means by which the objectives which they pursue may be achieved. Accordingly, the obligation for the Member States to observe those principles is limited to the need to guarantee their essence”[62].

Taking these national constitutional interpretations into account, both the CJEU and the ECtHR in a bottom up approach define the rule of law as a constitutional principle of the Union’s legal order that consists of both formal and substantive components in order to ensure compliance with and respect for democracy and human rights[63].

Despite different constitutional traditions, the rule of law has evolved into a core principle of constitutional law not only in the Member States but also at the Union level[64]. It should be noted, however, that in view of its broad conceptual understanding, the rule of law principle requires to be concretely specified in the national legal order to unfold its full effectiveness and not remain a vague concept. The need for further clarification as a joint priority task for all CoE States has also been addressed by the Venice Commission which has significantly contributed to reaching a consensual definition of the notion of the ‘rule of law’ and its core elements[65]. Already in the 2011 report[66], the Venice Commission concluded that there is consensus on at least the core elements of the rule of law[67]. An agreement was reached on a Rule of Law Checklist[68] that aims to operationalise this principle while providing concrete benchmarks and indicators underpinning its core elements[69]. Essentially, the five core elements encompass: (1) legality (in particular, primacy of and reservation by law), (2) legal certainty, (3) prevention of abuse (misuse) of powers, (4) equality before the law and non-discrimination, and (5) access to justice[70]. In its “definition” of the rule of law, the European legislator added further elements to this checklist, in particular a transparent, accountable, democratic and pluralistic law-making process[71]. Although this is not an exhaustive enumeration of the rule of law criteria[72], it provides a tool for assessing the degree of its respect in a given country “from the view point of its constitutional and legal structures, the legislation in force and the existing case-law”[73].

The CJEU has consistently emphasised the importance of the rule of law as a central component of the Union’s legal order, imposing a clear set of legal requirements that the Member States need to comply with[74]. Deference to the rule of law includes, in particular, adherence to and the primacy of Union law. Apart from this, the integral principles of the rule of law include, “inter alia”, the separation of powers, i.e. in terms of the Union's “checks and balances”[75] and in the functional sense of “institutional balance”[76], legal certainty, including the protection of legitimate expectations, effective judicial review and legal protection, the independence and impartiality of the judiciary, as well as equality before the law, but also the legality and proportionality of all state action and, last but not least, respect for fundamental rights[77]. Member States’ public authorities are subject to the rule of law in their administrative actions, as any interference affecting individual legal positions may only be carried out on the basis of statutory authorisation[78].

The ECtHR has further specified and confirmed core elements of the rule of law in its case law[79], emphasising already in the Golder judgment[80] its importance for the Union[81]. As a result, the European courts have significantly contributed to refining core elements of the rule of law, which aim, above all, to prevent the arbitrary exercise of public authority and to protect human dignity and individual freedoms. It requires public authorities to act within the limits set by law and in accordance with the values listed in Article 2 TEU[82]. The application of uniform assessment criteria by the Member States is compatible with “a certain degree of discretion [in their favour] in implementing the principles of the rule of law[83]. Moreover, conferring discretion on the authorities responsible for implementing

“is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give adequate protection against arbitrary interference”[84].

2. THE EUROPEAN ‘RULE OF LAW CRISIS’ AS AN OUTCOME OF “AUTOCRATIC LEGALISM”.

“Europe will be forged in crises, and will be the sum of the solutions adopted for those crises. Indeed, the EU has gone through many crises in recent years, such as the financial and migration crises and Brexit”[85].

However, the increasing disregard for the rule of law and other fundamental values within the Union by certain Member States poses a serious challenge to the very foundations of the Union. Accordingly, we can speak of a ‘crisis of fundamental values’ or, with regard to the rule of law, a ‘rule of law crisis’ that the EU has been witnessing for several years already[86] In constitutional doctrine, these developments have been labelled under the terms of “autocracy” or even “authoritarianism”[87].

As observed by the European Commission, we see a gradual deterioration of the rule of law in parts of Europe, a trend referred to as ‘rule of law backsliding’ or ‘constitutional capture’[88]. In this context, Laurent Pech and Kim L. Scheppele define the ‘rule of law backsliding’ as follows:

“a process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party”[89].

The process describes a substantial decline in the state of the rule of law in general, which primarily includes the weakening of checks and balances. Political pluralism and participation, freedom of expression, freedom of the press, rights of association and organisation, the independence of the judiciary, as well as media pluralism and freedom are increasingly under attack. However, the democratic backsliding and the decline of the rule of law are not a phenomenon attributed exclusively to the EU,[90] but are increasingly noticeable at the international level and must be understood as part of a broader ‘wave of autocratisation’[91] and a process of degeneration of constitutional states into “autocratic legalism”[92]. According to the latest Freedom House report, freedom is increasingly under threat worldwide, with eight out of ten people now living in an only partially free or non-free country. In this respect, the current state of freedom in the world is alarming in more than one way: while there is significant growth and consolidation of authoritarian regimes, even consolidated democracies are increasingly being weakened from within by illiberal forces[93]. The latter is particularly true in light of developments in parts of the EU, where the rise of national-conservative and populist governments and parties[94] is increasingly undermining basic democratic principles, the rule of law and the protection of fundamental rights.

The Union’s enlargement policy has long been perceived as one of the most successful foreign policy instruments when it comes to promoting democracy and the rule of law in the prospective Member States. In particular, in view of the most comprehensive enlargement process in 2004[95], when ten Central and Eastern European countries acceded to the Union, democratic conditionality was widely endorsed as the key to facilitating political transformation and democratic reform in these countries in line with the fundamental values and principles of the Union[96]. In this context, all candidate countries had to fulfil the Copenhagen criteria (point 1.1). While countries such as Poland, Hungary, Slovenia and Romania[97] were considered to meet these criteria at the time of accession, these countries now show clear signs of illiberal constitutionalism – namely the attempt to dismantle fundamental principles such as the separation of powers and the independence of the judiciary, as well as to weaken civil society and the independent media[98].

Hungary serves as a prime example of a post-1989 democratic state backsliding into ‘constitutional authoritarianism’ with nationalist tendencies. Under the ruling Fidesz government of Prime Minister Viktor Orbán, the country has seen a gradual dismantling of checks and balances as well as a deterioration of the rule of law since 2010. Constitutional amendments have allowed the Hungarian government to strengthen its political control over the independent judiciary and to limit the protection of fundamental liberties. Even the judicial independence guaranteed in the Hungarian Constitution with respect to the organisation of the courts could hardly forestall this. As a result, democratic institutions have increasingly been exploited by the government and rendered toothless[99].

The reasons for these developments in East-Central Europe are complex. Some stress that while the EU has promoted the harmonisation of national legislation according to EU standards, it failed to provide guidance for the establishment of a sustainable, independent and trustworthy judiciary in these countries due to the rapid accession process[100]. Others have pointed to the lack of consensus on liberal-democratic values in Central-Eastern European societies at the time of the transition, insisting that general economic effectiveness was given preference over civic and political engagement[101]. Undoubtedly, the governments of these countries are also concerned with defending their sovereignty, which they only regained in 1990, both internally and externally. Poland had lost it completely for over 100 years.

The illiberal turn in the region, however, does not mark the first instance of divergence between the Visegrád countries and the EU. Their relapse into inhumane practices has already become apparent during the 2015-2016 refugee crisis when these countries refused to take in asylum seekers and migrants and objected to the Commission’s proposal to set binding redistribution quotas in the Union[102]. Such resistance was primarily rooted in security concerns according to which the uncontrolled admission of migrants and refugees would pose a threat to the (homogeneous) society of their countries. This line of argumentation resonated particularly in national-conservative circles of Polish society and was repeatedly invoked by the PiS party, portraying itself as the defender of Polish national identity and Christian values[103].

“Surprisingly”, in particular the requirement of judicial independence, a cornerstone of the rule of law, became a divisive issue in the European value-system. In its settled case law, the Court of Justice has emphasised that this requirement is part of the essence of the right to effective judicial protection and of the fundamental right to a fair trial pursuant to Article 47.2 CFREU,

“a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded”[104].

In its Rule of Law Report 2022, the Commission has raised particular concerns about the independence of the judiciary in a number of Member States, in particular Hungary, Bulgaria and Slovakia[105]. In Poland, for example, the increasing influence of the executive and legislative branches on the judiciary remains a source of serious concern, as the independence and impartiality of the Disciplinary Chamber of the Supreme Court and the Constitutional Tribunal continue to be subject to dispute (point 2.1.2)[106]. Likewise, there are visible signs of a weakening of safeguards for the independence of the judiciary in relation to disciplinary procedures and the appointment and liability of judges[107]. Especially in the case of Poland, a fast-track adoption of legislation continues to be used for structural reforms in various areas consolidating the ruling party’s influence, with the most recent peak being the Constitutional Tribunal’s ruling that the Polish Constitution takes precedence over the Union law (point 2.2).

The fundamental dissent about this issue between the Union and Poland and, respectively, Hungary is the result of the decisions of the Polish and Hungarian legislatures, of the national reforms of the appointment procedures for judges of the High Courts, which secure for the governing parties the exclusive right to nominate and replace judges, and of the jurisprudence of these courts, deciding under political influence. This happens although the Polish Constitution, within different contexts, guarantees in nine provisions [108], the judicial independence as a legal guarantee or, respectively, as a principle of judicial organisation. The same holds true for the Hungarian Constitution, passed in 2011 with the two-thirds majority of the national-conservative governing coalition of Fidesz - Hungarian Civic Alliance and Christian Democratic People’s Party, which contains two such provisions[109].

Due to the political leadership’s disregard for the substantial requirements of effective fundamental rights protection and its institutional backing, the national constitutions of certain Member States with illiberal tendencies risk degenerating into pure façades because they no longer determine legal reality. This shows how thin the patina of shared European values is even within the European community of States. According to the communitarian approach to the European political identity, the ‘thin’ universal values of democracy, rule of law and respect for human rights are not sufficiently strong to sustain the legitimacy of a democratic polity at the post-national level[110]. What is needed now in the Union is “a thick conception of the common good”[111].

Yet partisan factors likewise may not be entirely ruled out in other national procedures for the nomination of judges. In Germany, for example, the Bundestag and the Bundesrat each elect half of the judges of the Federal Constitutional Court (“Bundesverfassungsgericht”) in accordance with Article 94.1 of the Basic Law. Details of the election procedure are regulated by the Federal Constitutional Court Act (“Bundesverfassungsgerichtsgesetz” –BVerfGG). Accordingly, these judges are elected by a two-thirds majority by the Bundesrat in plenum and public session (Sect. 7 BVerfGG). Since 2015 the “Bundestag” elects the judges of the Federal Constitutional Court, to be chosen by the Federal Parliament, directly by a two-thirds majority without prior debate by secret ballot on the proposal of its selection committee, which is composed of twelve deputies (Sect. 6.1 and 2 BVerfGG)[112]. According to the principle of proportional representation, its composition should reflect that of the plenary as far as possible. After being elected, the judges are appointed by the Federal President (“Bundespräsident”) (Sect. 10 BVerfGG). Judges at the other federal courts are elected by the Judges Election Committee (“Richterwahlausschuss”), which is composed of 16 ministers of the “Länder” and 16 members elected by the “Bundestag” (Article 95.2 of the Basic Law in conjunction with Sect. 1.1 of the Federal Judges Election Act – “Richterwahlgesetz”)[113].

Since this election falls within the competence of the “Bundestag” and the “Bundesrat”, political interests do matter[114]. But a crucial difference compared to the judges election procedure by the Polish “Sejm” (Article 194 of the Polish Constitution) lies in the fact that the selection committee of the “Bundestag” nominates the candidates as a joint, i.e. cross-party, proposal. At the federal level, currently the SPD, CDU/CSU, Bündnis 90/Die Grünen (Alliance 90/The Greens) and the FDP – without a decisive political influence of the parliamentary groups of the “Alternative für Deutschland” (AfD – Alternative for Germany) and of “Die Linke” (The Left Party) – assign the 16 judgeships at the Federal Constitutional Court on a quasi-proportional basis to strong candidates (Article 33.2 of the Basic Law) qualified to hold the position of a judge (Sect. 3.2 BVerfGG). The impact of the multi-party democracy (Article 21.1 of the Basic Law) on this selection and election process is apparent from the fact that the suitable candidate must also have shown in his life a close neighbourhood to the basic political orientations of the party nominating him for this high judicial office through its deputies in the Federal Parliament. Ultimately, the nomination of candidates and their election as judges are decided on a basis of merit and by political consensus between the major parties, and under the scrutiny of the media. The criteria for selecting and electing the judges to be chosen by the “Bundesrat” are comparable.

Another example of party-political influence in the appointment of judges to High Courts can be found in the USA, where federal judges are appointed by the US President and must be confirmed by a majority vote of the US Senate (Article II, Section 2, clause 2 of the US Constitution)[115]. This, too, happens to be a highly contested political process, as evidenced most recently by the nomination of conservative US Constitutional Judge Amy Vivian C. Barrett to succeed the deceased US Constitutional Judge Ruth Bader Ginsburg by former incumbent US President Donald Trump in September 2020. Lifetime appointments of judges not only affect the Supreme Court’s jurisprudence beyond the term of office of a US President but can also have a lasting impact on the political guidelines of the US administration.

In Poland, the ruling PiS party, after winning the presidential elections and obtaining a parliamentary majority in 2015, has severely eroded the foundations of liberal democracy, with the executive and the legislative branches increasing their influence on the judiciary. Above all, the independence and impartiality of the Disciplinary Chamber of the Supreme Court and the Constitutional Tribunal have been called into question. Despite nine provisions of the Polish Constitution guaranteeing the independence of the judiciary, the rule of law is at risk of degenerating into a hollow façade. Judicial autonomy has been systematically undermined by legislative amendments relating to the Act on the Supreme Court and the Constitutional Tribunal, including, in particular, forced retirements, a disciplinary regime for judges and similar measures affecting the status and composition of these institutions[116].

As of today, several supposed “reforms” have been adopted that affect the functioning of courts at all levels, from the Constitutional Tribunal to the Supreme Court, the ordinary courts, the administrative courts, the National Council for the Judiciary (NCJ) and the Public Prosecutor’s Office. The main actions undertaken to reform the Polish justice system have resulted not only in the European but also in a national constitutional crisis. While it is well beyond the scope of this analysis to elaborate on all aspects of the judicial reforms since 2015, it is important to identify the main amendments and their consequences for the independence and impartiality of the Polish judiciary[117].

Starting with the new Act on the Constitutional Tribunal amending the appointment of judges, those judges previously duly appointed were removed from office while the “Sejm” has chosen other judges in their stead. Despite the Constitutional Tribunal (under its former justices) declaring this act to be unconstitutional, the government refused to publish that ruling on the grounds that it had no legal standing. By additionally shortening the term of office of the President and Vice-President of the Tribunal, the PiS ultimately succeeded in altering the composition of the Constitutional Tribunal in favour of politically loyal judges[118]. Additional substantial amendments to the Act on the Constitutional Tribunal severely paralysed the work of the Constitutional Tribunal.

In another step, the Act on the Public Prosecutor’s Office provided the basis for merging the office of the Minister of Justice with that of the Public Prosecutor-General, which led to concerns about the authority to issue directives and the transfer of public prosecutors[119]. With reference to the need to de-communise and restore public faith in the judiciary[120], further reforms were carried out, targeting the organisation and functioning of the Supreme Court, the NCJ, the ordinary courts and the National Judicial School. The combined effect of these acts has been characterised as a threat to the independence of the judiciary[121].

The ruling government continued to pursue its court packing plan, enacting legislation on the judiciary in 2017 that, among other items, introduced a new retirement scheme for judges[122]. The Law on Ordinary Courts and the Law on the Supreme Court notably lowered the general retirement age of judges from 70 to 65 years, applicable to all currently serving judges. Any prolongation may only be granted upon the approval of the President. This measure prompted approximately 40% of judges into early retirement, providing the possibility for the Polish President to appoint new judges on the recommendation of the newly constituted NCJ[123]. This is highly worrying as the NCJ has increasingly suffered a loss of credibility owing to the fact that its members are elected by the “Sejm”, its recommendations certainly not being aimed at strengthening an autonomous and self-confident judiciary.

The Commission has initiated infringement proceedings against Poland on the grounds that the newly introduced retirement regulations for judges violate Article 19.1 (2) TEU in conjunction with Article 47 CFREU, i.e. the right to an effective remedy and a fair trial[124]. The CJEU has confirmed that the retirement legislation is contrary to Union law in that the new regulations on the retirement age of judges, read together with the novel rules on the possible prolongation of the service period, are incompatible with the requirements of the independence of judges. It, therefore, issued two interim orders for the immediate suspension of the application of the measures in question[125].

On top of that, the President of the Supreme Court has been replaced by a PiS affiliated candidate[126]. In this context, two new chambers were established at the Supreme Court, the Disciplinary Chamber, and the Extraordinary Appeals and Public Affairs Chamber, both of which are made up of new judges appointed at the request of the NCJ[127]. The gradual dismantling of the independence and impartiality of the judiciary has been accompanied by a judicial disciplinary regime (the so-called Muzzle Act) imposed in 2019, the aim of which is to keep judges subservient to the political will of the government. Within this framework, judges may face disciplinary investigations, proceedings and sanctions relating to the content of judicial decisions, for example, deciding to refer questions to the CJEU for preliminary rulings[128].

Judges are further obliged to disclose personal information such as their membership in associations. They may not challenge the legality of judicial appointments or the authority of a judge to perform judicial duties[129]. In this way, any critical voices are suppressed, and institutions upholding the rule of law are rendered toothless. This prompted the Commission to open another infringement procedure against the disciplinary regime for judges, arguing that it erodes the judicial independence of Polish judges and fails to provide the necessary safeguards to protect judges from political interference (Article 19.1 (2) TEU) [130]. Acting upon a request for interim measures, the CJEU again ruled in favour of the Commission and ordered the immediate suspension of the application of the provisions concerning the powers of the Disciplinary Chamber of the Supreme Court in relation to disciplinary proceedings against judges[131].

A consequence of the loss of judicial independence may be seen in the decision of the Polish Constitutional Tribunal of 7 October 2021. So far, it marks the peak of the escalating rule of law dispute between Poland and the Union. Acting upon a motion by Prime Minister Mateusz Morawiecki, who appealed to the Tribunal to review the judgment of the CJEU of 2 March 2021 on the primacy of Union law vis-à-vis national constitutional law[132], the Tribunal ruled in case K 3/21[133] that several core provisions of the EU Treaty (Article 1 TEU in conjunction with Article 4.3 TEU and Article 19.1 (2) TEU as well as Article 2 TEU) were unconstitutional. Prior to this, the Constitutional Tribunal already declared the CJEU’s interim orders relating to the organisation of the courts to be incompatible with the Polish Constitution, refusing to implement the order to suspend the activities of the Disciplinary Chamber of the Supreme Court in disciplinary proceedings against judges[134]. Moreover, provisions of the European Convention on Human Rights, in particular Article 6 (the right to a fair trial), have recently been deemed unconstitutional and thus incompatible with the Polish Constitution[135]. These decisions, especially the K 3/21 case, have very serious implications as they call into question the primacy of Union law and thus the foundations of European integration[136].

The principle of the primacy of Union law forms an inherent part of the Union’s legal order. First established in the Costa v E.N.E.L. case[137] in 1964, it was confirmed by the judgment in the “Internationale Handelsgesellschaft” case[138] and later “recalled” by the Intergovernmental Conference in Declaration No. 17 annexed to the Lisbon Treaty. In essence, it entails that in the event of conflicting legislation, the application of Union law shall prevail over national law, i.e. national law shall remain in force, but shall cease to apply to the extent and for as long as it conflicts with Union law (primacy of application). In this vein, respect for the rule of law requires Union law to have primacy over national legislation and the judgments of the CJEU to be binding on all Member States[139].

While there have been several cases where courts have challenged judgments of the CJEU on the grounds that it acted “ultra vires”, prompting the Commission to initiate infringement proceedings for breaches of the principle of the primacy of Union law[140], the Polish Constitutional Tribunal’s decision clearly takes a hitherto unprecedented direction, in which not secondary Union law but essential norms of primary Union law are at stake[141]. In particular, the CJEU has been accused of exceeding its competencies in interpreting Treaty provisions, thereby substantially infringing national competencies enshrined in the Polish Constitution and disregarding respect for state sovereignty[142]. Despite considerable differences compared to the decision of the Federal Constitutional Court of 5 May 2020, ruling out (for the time being) the primacy of application of the “PSPP” in the German legal order[143], the decision of the Karlsruhe judges is likely to have triggered a replicating effect[144]. The Constitutional Tribunal’s decision, however, drew considerable criticism at both the international and national level. Indeed, retired Constitutional Tribunal judges felt compelled to explain the ‘lies and misunderstandings’ regarding the decision[145] while the Committee on Legal Sciences of the Polish Academy of Sciences[146] released a resolution criticising the Constitutional Tribunal’s decision which seeks to legitimise the unlawful amendments to the Polish judicial system implemented since 2015, in particular by undermining the legal effects of the CJEU’s rulings. In a similar vein, the deans of law faculties of Polish universities issued a statement saying that the Constitutional Tribunal’s conclusion

“was made in violation of the Constitution of the Republic of Poland, with the participation of persons not authorised to adjudicate and in fact exceed the scope of cognition of the Constitutional Tribunal, which does not include the control of judicial decisions, including decisions of the Court of Justice of the EU”[147].

In his statement before the European Parliament, Prime Minister Mateusz Morawiecki defended the Constitutional Tribunal’s decision, stressing that it was necessary to raise “the question as to whether the monopoly of the Court of Justice to define the actual limits of entrusting these competences is the proper solution”. For this reason,

“someone must also express an opinion on the constitutionality of such new, possible competences, especially when the Court of Justice introduces more and more new competences of EU institutions from the treaties”. He further reiterated that “supreme law of the Republic of Poland is the Constitution. It precedes other sources of law. No Polish court, no Polish parliament and no Polish government can depart from this principle”[148].

The fact is that the Tribunal’s decision, after having been published in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), has acquired binding character, increasing the presure on judges to comply with the ruling. Judges failing to do so continue to face disciplinary proceedings. In this way, the ruling government is making sure that its unconstitutional changes to the judicial system introduced since 2015 persist without being contested. The Constitutional Tribunal has been deprived of its function as guardian of the rule of law, rendering it merely a body to enforce the political will of the government[149].

What is worse, the ruling not only jeopardises the very foundations of the Union but also imposes practical obstacles on Polish judges when applying Union law, thereby compromising individuals’ right to an effective remedy and access to impartial and independent courts endowed with the authority to ensure respect for the rights guaranteed to individuals by Union law (Article 47.2 CFREU[150]). It is in light of this that Poland has been facing major backlash from the Commission having launched infringement proceedings for undermining Union law and the independence of the Polish judiciary[151]. The question remains whether the Polish government will resort to the “independence” of the Constitutional Tribunal in these proceedings[152].

3. COUNTERMEASURES AGAINST THE RULE OF LAW VIOLATIONS IN POLAND AND HUNGARY.

Being alarmed at the deterioration of democracy and the rule of law in its Member States, the EU has been actively involved in establishing several legal instruments and procedures to uphold and enforce the rule of law in its Member States[153]. The imposition of sanctions and suspension of EU funds, albeit “ultima ratio”, appears to be the most effective remedy for bringing a Member State into line with the rule of law. One of the Union’s instruments to respond to these developments is the EU Recovery and Resilience Facility (RRF)[154]. It aims to promote reform and investment and to mitigate the socio-economic consequences of the covid-19 pandemic. The Regulation provides that payment of all or part of the financial contribution and, where applicable, of the loan can be suspended if the Commission establishes that the milestones and targets agreed in the Member States’ national recovery and resilience plans have not been satisfactorily fulfilled (Article 24.6). The suspension shall only be lifted if the Member State concerned has taken the necessary measures to ensure a satisfactory fulfilment of the milestones and targets set out in the Council implementing decision (Article 19.1 in conjunction with Article 20.1 of Regulation (EU) 2021/241). Therefore, when Poland submitted its national recovery and resilience plan in May 2021, the Commission did not forward the necessary proposal to the Council for determining whether the conditions for disbursement were met. The Commission pointed in particular to the rule of law deficits in the Polish judiciary. While the Common Provisions Regulation (CPR)[155] does not provide for sanctions for breaches of the rule of law, as this criterion does not play a prominent role in allocating funds in this regard, Article 260 TFEU recognises the Court of Justice’s competence to impose a lump sum or penalty payment at the request of the Commission in cases where Member States have failed to comply with a judgment of the CJEU. In October 2021, the CJEU has imposed a daily fine of EUR 1 million on Poland for failing to suspend the disciplinary regime for judges introduced in the course of its judicial reforms[156].

However, Poland has not yet been willing to pay this fine, as well as the daily EUR 500,000 penalty for not closing a lignite mine on the Czech border[157]. In response, the Commission first decided to withhold EU funds for Poland to cover the first part of the unpaid fines. This “recovery by offsetting” is a common tool in the enforcement of sanctions[158]. As Poland is one of the largest net recipients of EU funds, the strategy of withholding funds already seems to be increasing the pressure on the incumbent government and thus having an effect. This effect could be further reinforced by the Rule of Law Conditionality Regulation.

Despite lacking effective implementation of the respective CJEU and ECtHR rulings, the Comission proposed to the Council in early June 2022 to approve Poland’s national recovery and resilience plan within the framework of the Recovery and Resilience Facility[159]; the Council decided to follow the proposal[160]. Before, the Polish government had announced its willingness to reform the disciplinary regime regarding judges, to abolish the Disciplinary Chamber of the Supreme Court and to initiate review proceedings for those judges affected by decisions of the current Disciplinary Chamber[161]. In particular, Poland has agreed to submit all disciplinary cases and decisions to an independent and impartial court. This ought to encompass cases in which judges are subject to disciplinary proceedings for submitting a preliminary request to the Court of Justice or for assessing whether another court is deemed to be independent and impartial, as well as cases brought before the Disciplinary Chamber for reviewing the content of their judicial decisions because the latter do not “conform to political preferences”. In this sense, the procedural rights of the parties in disciplinary proceedings brought against judges are to be strengthened at the same time.

These benchmarks, described by the Commission as “milestones” for Poland’s realignment with the European rule of law, are intended to enable the disbursement of EUR 23.9 billion in grants and EUR 11.5 billion loans under the EU’s Recovery and Resilience Facility. Speaking at the European Parliament on 7 June 2022, Commission President von der Leyen explained that approval of the Polish Recovery and Resilience Plan would depend on clear commitments from the Polish government regarding the independence of the judiciary. Payments are only to be made once Poland can prove that the necessary measures have been implemented[162]. For that purpose, the “Sejm” adopted amendments to the disciplinary regime for judges. The Act of 9 June 2022 amending the Law on the Supreme Court entered into force on 14 July 2022.

Despite these developments, disciplinary proceedings are still underway against several judges, not to mention that the deposed judges have not been reinstated to their offices. The European Parliament has criticised this move and called on the Commission and the Council only to aprove the Polish recovery and resilience plan once the recent CJEU and ECtHR rulings have been fully and properly implemented, while ensuring that the assessment of the plan takes into account relevant European Semester country-specific recommendations[163]. Although the recent efforts of the Polish government are encouraging, the mere pledge to ensure respect for judicial independence in future proceedings before the Disciplinary Chamber cannot remedy the systemic deficiencies of the rule of law in the overall organisation of the judiciary. Disagreements among and within the Union institutions on this approach to Poland likewise account for why the Commission’s proposal is seen as running the risk of a “more or less capitulation at the expense of the law”[164]; even within the College of Commissioners, five members voted against it or expressed serious concerns.

Sanction measures, based on the EU Recovery and Resilience Facility, as well as comparable steps that can be proposed by the Commission to the Council under the Conditionality Regulation (point 3.2), are the results of the long-recognised necessity of developing alternative instruments of combating rule of law backsliding. In fact, also in the cases of Poland and Hungary the tool kit provided for by Article 7 TEU has proven to be largely inefective[165].

Acknowledging shortcomings of the Union’s institutional system in monitoring rule of law deficiencies, the Commission, under its former Commissioner for Justice Viviane A. Reding, adopted a Rule of Law Framework in 2014[166]. The framework is driven by the objective of complementing, but also preventing the initiation of Article 7 proceedings through an informal dialogue with the Member State concerned[167]. In this context, the Commission has further elaborated on the core principles of the rule of law[168]. Without prejudice to the Comission’s initiative to proceed with infringement procedures under Article 258 TFEU, it provides an early warning tool to address and prevent emerging threats to the rule of law in Member States from evolving into serious breaches within the meaning of Article 7 TEU[169].

The Commission invoked the Framework for the first time in 2016 to engage in a dialogue with Poland. This was prompted by concerns about the situation of the Polish Constitutional Tribunal and legislative changes related to the Law on Public Service Broadcasters[170]. Since entering into dialogue with Poland, the Commission has issued a total of four recommendations[171], expressing its concerns about the ongoing political reforms of the judicial system. If no solution is found within the rule of law framework, Article 7 of the TEU is the last resort to resolve a crisis and to ensure the EU country complies with EU values.

Article 7 TEU provides for the most prominent preventive and sanctioning mechanisms which can be deployed to safeguard the values of Article 2 TEU, including the rule of law. It allows the EU institutions and Member States to issue reasoned proposals in cases where there is a clear risk of a serious breach (Article 7.1 TEU) or a serious and persistent breach (Article 7.2 TEU) by a Member State of the values set out in Article 2 TEU. Article 7.3 TEU further foresees a sanction mechanism that can only be invoked following a finding of a serious and persistent breach[172]. Article 7 TEU is not limited to the scope of application of Union law, which means that the Union can take action not only in cases of violations of its values but also if the violation occurs in an area that falls within the competence of a Member State to act[173].

In general, Article 7 TEU does not establish exclusive competence for the institutions empowered in the provision, meaning that other measures may also fall within the scope of competence, such as infringement proceedings pursuant to Article 258 TFEU to address specific breaches of individual Union law standards[174]. Infringement proceedings under Article 258 TFEU are typically brought by the Commission against a Member State violating a specific provision of EU law[175]. The standards of assessment include not only the European Treaties along with their protocols but also European secondary law. Yet the procedure under Article 258 TFEU often falls short of addressing systemic deficits[176] in the rule of law. As such, Article 7 TEU serves as a “political mechanism of last resort, intended for situations of an exceptional nature with a systemic, structural dimension”[177].

The procedure under Article 7.1 TEU is triggered in cases where there is a clear risk of a serious breach by a Member State of the values set out in Article 2 TEU. It is above all the justiciability of the values in Article 2 TEU that continues to be disputed. It is argued that the values set out in Article 2 TEU may not be justiciable in their own right, but only if considered in combination with primary EU law provisions giving concrete form to them. For example, the CJEU has recognised Article 19.1 (2) TEU to be an expression of the rule of law principle, deriving there from the principle of judicial independence[178]. According to Kim L. Scheppele, by means of ‘systemic infringement proceedings’ representing an advanced version of the traditional procedure, the Commission could denounce a systemic violation of fundamental treaty obligations by aggregating a cluster of specific alleged violations to argue before the Court that the violation of EU law in a Member State is not marginal or temporary, but of a systemic and persistent nature[179]. This resembles the German Chancellor’s intention when he calls for infringement proceedings to be initiated in cases where fundamental values of the Union are being violated. This becomes especially relevant given that Article 7 TEU has proven to be a ‘paper tiger’ incapable of enforcing common European values and restoring mutual trust and the credibility of the Union as a whole.

Article 7.1 TEU has been invoked by the Commission in December 2017 in relation to Poland[180], and by the European Parliament in September 2018 in relation to Hungary[181], with remarkably little effect[182]. The Article 7.1 TEU procedure does not seem to be an appropriate means to redress the precarious rule of law situation in either Poland or Hungary, as both governments have so far refused to follow and implement the recommendations issued in this context. The hearings conducted have not yet led to significant progress by the two Member States towards resolving the clear risks of a serious breach of the values set out in Article 2 TEU. On the contrary, in both countries the situation has even become worse since recourse to the Article 7.1 TEU procedure has been made, pointing to the limited scope and effectiveness of existing EU mechanisms to enforce the rule of law in Member States.

In this context, discussions have already occurred on reforming Article 7 TEU to render it a more effective instrument to counteract the backsliding of the rule of law in the Member States[183]. It is, above all, the hitherto required unanimity in the European Council that hinders its efficient implementation. To make the situation all the more complicated, Member States potentially affected by Article 7.2 TEU will choose to abstain from voting, which makes it extremely problematic, if not impossible, to determine by consensus whether a Member State is in serious and persistent breach of the values enshrined in Article 2 TEU[184]. Yet this constitutes an inescapable condition for the imposition of sanctions on a Member State under Article 7.3 TEU.

3.2. The Conditionality Regulation as a New Tool for the Protection of the Union Budget in the Case of Breaches of the Rule of Law Principle (2021).

As of 2021, the Union budget has an additional layer of protection in cases when breaches of the rule of law principles affect or risk affecting the EU financial interests: The Rule of Law Conditionality Regulation[185]. This conditionality regulation bridges the gap between respect for the rule of law and sound financial management of the Union budget and effective use of the Union funding[186]. This concerns the disbursement of funds from the “NextGenerationEU” programme to allow the necessary reforms mentioned in the country-specific recomendations to proceed following the paralysis of the Member States’ economies as a result of the pandemic.

Measures under this Regulation can only be proposed if the Commission finds out that breaches of the rule of law principles directly affect or seriously risk affecting the sound financial management of the Union budget or of the financial interests of the Union in a sufficiently direct way (Article 3 Regulation (EU, Euratom) 2020/2092). The instrument complements other tools and procedures to protect the EU budget, for example checks and audits or financial corrections, or investigations by the EU’s anti-fraud office OLAF. It is different from the European Rule of Law mechanism (with the annual Rule of Law report at its core) whose goal is to promote the rule of law.

The adoption of the Conditionality Regulation was strongly contested by Poland and Hungary who challenged the validity of the regulation by appealing to the CJEU. However, as a result of the Court’s judgments of 16 February 2022 in the cases of Hungary and Poland contesting Regulation 2020/2092, a clear link can be drawn between deference to the rule of law and the efficient management of the Union’s budget in accordance with the principles of sound financial management. In that context, the Court has stated “that the EU legislature in no way conferred on the Council and the Commission an unlimited right to assess, in the light of political considerations, observance of the principles of the rule of law or to link any identified breach of those principles, in a general manner, to the principle of sound financial management of Union funds”[187]. Further, it has held

“that the proportionality of the measures to be adopted is ensured, decisively, by the criterion of the ‘impact’ of breaches of the principles of the rule of law on the sound financial management of the Union budget or the protection of the financial interests of the Union. As regards the criteria based on the nature, duration, gravity and scope of those breaches, they may be ‘duly taken into account’ only in order to determine the extent of that impact […]”[188].

Regarding the appropriateness of adopting a Regulation like the contested, again the judges have accepted

“that the EU legislature must be allowed a broad discretion which applies not only to the nature and scope of the measures to be taken in areas in which its action involves political, economic or social choices, and in which it is called upon to undertake complex assessments and evaluations, but also, to some extent, to the finding of the basic facts, with the result that the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue […].”[189]

Ultimately, the complaints of Poland and Hungary were dismissed, potentially subjecting them to suspensions[190].

Under first-time application of the Conditionality Regulation and after the adoption of the Guidelines for the application of the Regulation on 2 March 2022[191], the Commission, on 18 September 2022, proposed to the Council to take budget protection measures. Faced with allegations of corruption and other breaches of the rule of law in Hungary, the Comission suggested to impose sanctions on Hungary for its breaches of the rule of law amounting to approximately EUR 7.5 billion, i.e. a suspension of 65% of the commitments for three operational programmes under cohesion policy within the EU’s current seven-year budget (2020-2027)[192]. In response to this pressure, Hungary has announced that it will proceed with reforms already initiated. Like Poland, Hungary had already submitted its national recovery and resilience plan in May 2021; however, a Commission decision to this effect is still pending. The application of such measures is guided by the principle of proportionality[193]. To make the resources of these funds available for Hungary, national measures are needed which “put an end to the breaches of the principles of rule of law and/or to the risks they create for the EU budget and the Union's financial interests”[194].

4. BALANCING THE RULE OF LAW WITH OTHER NATIONAL AND UNION INTERESTS?.

The politically and legally challenging circumstances surrounding the “consolidation” of illiberal democracies, especially in Poland and Hungary, beg the question as to which additional measures – going beyond budgetary sanctions – must be taken at the Union level in order to halt the deterioration of the rule of law in these countries.

It is evident that the EU has so far not been capable of comprehensively countering rule of law violations by means of its ordinary monitoring and enforcement instruments. In fact, in view of Poland’s persistent intransigence and resistance, this set of instruments fails to unfold the desired effect to bring about compliance with the Union’s fundamental values. The underlying causes of this inability emanate from the interplay of the fragmented enforcement of the Union’s monitoring and compliance instruments, their limited enforceability, as well as their ineffective and inconsistent application vis-à-vis Member States. In addition, a blockade attitude of the actual Polish or Hungarian government in the EU Council, which means a “veto” in areas such as sanctions, the so-called passerelle clauses, and emergencies, could considerably hinder further decision-making processes.

In the face of the new wave of refugees that the second Russian war against Ukraine has brought to the EU Member States, one might be inclined to rebalance the relationship between the rule of law and solidarity. On the reception of refugees, Poland has shown a high degree of solidarity with both the Ukrainians and the European Union[195], thus – in contrast to the so-called “refugee crisis” of 2015 – fulfilling the “principle of solidarity and fair sharing of responsibilities among Member States” (Article 80 TFEU) for the first time since the entry into force of the Lisbon Treaty. However, in fulfilling the Union’s mandate of shaping and implementing a value-based policy on a daily basis, there can be – at least regarding the basic issues – no freedom of choice for the Member States in terms of an “either-or”. Likewise, the Union budget is considered one of the principal instruments for giving practical effect to the principle of solidarity (Article 2 TEU)[196]. In contrast to the position taken by Joseph H.H. Weiler[197], the rule of law is all too closely linked to the ideas of justice and reasonableness for there to be any discount on that (temporary) due to loyalty to other Union principles.

It is therefore questionable whether the precarious situation can be resolved and the conflict between the EU and Poland or Hungary finally settled as long as the incumbent and democratically legitimised governments remain in power. A solution towards the full re-establishment of the rule of law is tantamount to squaring the circle. As shown in an exemplary manner in the elections in Hungary in April 2022, when Viktor Orbán won his fourth consecutive term in office, the current political approval of a majority of the population, albeit only marginally, does not suggest any changes in the general political course of the governments in Warsaw and Budapest in the near future[198]. The parliamentary elections in Poland in the fall of 2023 remain to be awaited.

Given that the Treaties do not provide for the exclusion of a Member State from the Union, Poland remains in the Union. The prospect of a possible ‘Polexit’ seems to be somewhat unrealistic, as both the ruling PiS and the majority of Polish society are opposed and prefer to remain in the EU, whether for geopolitical and/or economic reasons. This may seem paradoxical, considering that Polish society continues to vote for a government that systematically tries to undermine EU law. The government’s welfare commitments have secured the support of low-income households, whose voting behaviour is more likely to reflect socio-economic considerations than rule of law concerns[199]. Though this has allowed the governing party to pursue its controversial policies and actions, support for the EU remains strong in the country, ruling out a possible withdrawal for the time being[200].

Yet, a supposed decline of a norm may be nothing but a temporary stagnation. Also, in some cases, contestation may lead to confirmation of the very norm that is apparently being contested[201].

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Resumen: En su Informe sobre el Estado de Derecho en la Unión Europea (2022), la Comisión ha expresado su honda preocupación por la independencia e imparcialidad del poder judicial, en particular por lo que respecta a Polonia y Hungría. La progresiva consolidación de democracias no liberales en estos países no sólo ha provocado un estancamiento, sino una erosión de la esencia misma del Estado de Derecho. En Polonia, las controvertidas reformas judiciales del gobierno nacional-conservador del PiS amenazan con degenerar los principios constitucionales del Estado de Derecho en una cáscara vacía. Las jubilaciones forzosas, los procedimientos disciplinarios y los nombramientos de jueces sometidos a la voluntad política del gobierno han expuesto cada vez más al poder judicial al control del poder legislativo y del gobierno y socavan la independencia del poder judicial. No menos importante, es la decisión del Tribunal Constitucional polaco de 7 de octubre de 2021 de declarar inconstitucional el derecho primario de la UE, lo que atestigua el alejamiento de las instituciones polacas de los valores comunes consagrados en el artículo 2 del TUE. En Hungría, las principales amenazas al Estado de Derecho bajo el Gobierno de Viktor Orbán son, además, la corrupción, el nepotismo, el recorte de la libertad de los medios de comunicación y la falta de transparencia gubernamental. Ante esta crisis, los mecanismos habituales de control y sanción de la Unión se han revelado en gran medida inadecuados. Después de todo, parece que las sanciones presupuestarias, como el reglamento de condicionalidad para la protección del presupuesto de la UE, proporcionan un medio de presión para proteger las garantías fundamentales del Estado de Derecho de una mayor erosión. Sin embargo, teniendo en cuenta los déficits sistémicos evidentes en ambos países, es muy posible que persistan las dudas sobre la eficacia de tales medidas.

Palabras claves: Estado de Derecho, democracias iliberales, Unión Europea, mecanismo de condicionalidad.

Abstract: In its Report on the Rule of Law in the European Union (2022), the Commission has expressed serious concerns about the independence and impartiality of the judiciary, in particular with regard to Poland and Hungary. Ongoing consolidation of illiberal democracies in these countries has not only brought about a stagnation, but an erosion of the very essence of the rule of law. In Poland, the controversial judicial reforms of the ruling national-conservative PiS government threaten to degenerate the constitutional principles of the rule of law into an empty shell. Forced retirements, disciplinary proceedings and nominations of justices submitted to the government’s political will have increasingly exposed the judiciary to the control of the legislature and the government and undermine the independence of the judiciary. Not least, the decision of the Polish Constitutional Tribunal of 7 October 2021 to declare EU primary legislation unconstitutional testifies to the Polish institutions’ departure from the common values enshrined in Article 2 TEU. In Hungary, the main threats to the rule of law under Viktor Orbán’s government involve in addition corruption, nepotism, curtailment of media freedom and lack of government transparency. In the face of this crisis, the Union’s regular control and sanction mechanisms have proved largely inadequate. After all, it appears that budgetary sanctions, such as the conditionality regulation for the protection of the EU budget, provide a means of pressure to shield fundamental guarantees of the rule of law from further erosion. Yet considering the systemic deficits evident in both countries, doubts about the effectiveness of such measures may well remain.

Key words: Rule of law, illiberal democracies, European Union, conditionality mechanism.

[*] The article is dedicated to the memory of Ministerialrat Professor Reimer von Borries (1937–2021) who as employee of the Federal Ministry of Economics rendered outstanding services to the development of the European rule of law principle, especially in Romania and Croatia, after the EU enlargements in 2007 and 2013. His initiatives as practitioner and his analyses as honorary professor remain a constant mission.

[02] Commission Communication 2022 Rule of Law Report: The rule of law situation in the European Union, COM(2022) 500 final.

[05] Cf. Pech 2009, p. 9; Jacqué, in von der Groeben et al. (2015), Article 2 EUV para 4.

[07] Cf. the survey that Maluwa (2019), p. 313 et seqq. (316), gives on the role of shared global values and value-based norms in international law.

[08] McCorquodale (2016), p. 304, comes to the following conclusion: “The international rule of law is not an all-or-nothing concept but is a relative concept, in which compliance with the international rule of law is measured in terms of the extent to which participants comply with its elements, with the aim of fulfilling them all over time.”; according to Fassbender (2018), p. 79, “it cannot be denied that [...] the UN, in accordance with Article 36, paragraph 2 of the Charter, has urged States to resolve legal questions by application of the law and not the exercise of political discretion or arbitrariness [...].” Both authors make reference to Bingham (2010). Posing the question about “[a]n International Rule of Law?” Chesterman (2007), para 37, distinguishes between three possible meanings, among them that “a global rule of law might denote the emergence of a normative regime that touches individuals directly without formal mediation through existing national institutions.”

[10] The Preamble to the CoE Statute identifies the rule of law as one of the three pillars on which the organisation is based, along with human rights and democracy. Respect for the rule of law is thus not only a precondition for membership (Article 3 of the CoE Statute), but violations of this principle may also result in a suspension of its rights of representation to the CoE or a cessation of its membership (Article 8 of the CoE Statute). Cf. Bílková (2021), p. 119; Schukking 2018, p. 154.

[12] Cf. para 4 of Opinion 300 (2022) of the Council of Europe Parliamentary Assembly on Consequences of the Russian Federation’s aggression against Ukraine in accordance with Article 8 of the CoE Statute.

[14] The political criteria encompass stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. The economic criteria require a functioning market economy and the ability to deal with competition and market forces. For more information, see European Commission – Enlargement – Accession criteria. Available at https://ec.europa.eu/neighbourhood-enlargement/enlargement-policy/glossary/accession-criteria_en. Cf. also Diel-Gligor 2021, p. 64; Calliess, in Calliess and Ruffert (2022), Article 2 EUV para 33.

[15] See Sommermann (2007a), p. 443 et seqq.: “the right to effective judicial protection as the focal point of a common European understanding of the rule of law.”

[16] Mangiameli, in Blanke and Mangiameli (2013), Article 2 TEU para 30; Hilf and Schorkopf, in Grabitz et al. (2022), Article 2 EUV para 35.

[17] With regard to this obligation, cf., e.g.,Case C-896/19, Repubblika v Il-Prim Ministru (CJEU 20 April 2021) para 63, without reference to the pre- and post-accession behaviour of a Member State or to Article 4.3 (2) TEU.

[18] Cf. Case C-157/21, Poland v Parliament and Council (Opinion of AG Campos Sánchez-Bordona of 2 December 2021) para 76, with reference to Article 4.3 (2) second sentence TEU; Case C-157/21, Poland v Parliament and Council (CJEU 16 February 2022) para 265.

[19] Cf. Case C-157/21, Poland v Parliament and Council (CJEU 16 February 2022) para 145, 264; see also Case C-156/21, Hungary v Parliament and Council (CJEU 16 February 2022) para 232.

[20] Hilf and Schorkopf, in Grabitz et al. (2021), Article 2 EUV para 9; Calliess, in Calliess and Ruffert (2022), Article 2 EUV para 7; Mangiameli, in Blanke and Mangiameli (2013), Article 2 TEU para 1.

[21] Opinion 2/13, Accession of the EU to the ECHR (CJEU 18 December 2014) para 168; cf. Spielmann (2021), p. 5, 11 et seqq.

[23] Blanke, in Blanke and Mangiameli (2013), Article 4 TEU para 85; Sommermann, in Blanke and Mangiameli (2013), Article 3 TEU para 9; Calliess 2020, p. 4.

[28] Sommermann (2007), p. 77 et seqq. For a detailed analysis of the different national conceptions, see European Commission for Democracy through Law (Venice Commission) The Rule of Law in European Jurisprudence (by Mr Martin Loughlin), CDL-DEM(2009)006. Available https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2010)141-e (29 May 2009).

[31] Dicey (1815), p. 111, 114, 115 et seq.; cf. Sommermann (2007), p. 77; Pech 2009, p. 24 et seq.

[32] Lyall (2002), p. 55. The argument of equality before the law is considered to be the result of Dicey’s misunderstanding of the French administrative law; see Fernandez Esteban (1999), p. 73.

[36] Cf. Stahl (1846), 1. Sect., 1. Chap. – Das Wesen des Staates: „Der Staat soll Rechtsstaat sein, das ist die Loosung und ist auch in Wahrheit der Entwicklungstrieb der neuen Zeit. Er soll die Bahnen und Grenzen seiner Wirksamkeit wie die freie Sphäre seiner Bürger in der Weise des Rechts genau bestimmen und unverbrüchlich sichern und soll die sittlichen Ideen von Staatswegen, also direct, nicht weiter verwirklichen (erzwingen) als es der Rechtssphäre angehört. Dies ist der Begriff des ‘Rechtsstaats’ [...].”

[37] See Hayek (1972). According to Hayek (1973), p. 55, the rule of law constitutes the foundation of liberalism’s political and legal theory. General and abstract laws, as opposed to concrete measures, protect individual freedom from prerogative and arbitrariness (normativism versus decisionism). Liberty is said to be the absence of coercion, more precisely “the condition of liberty [is that] in which all are allowed to use their knowledge for their own purposes, restrained only by rules of just conduct.”

[40] Mohnhaupt (1993), p. 75; Pech 2009, p. 32 et seq.; Sommermann (2007), p. 79; Sommermann, in von Mangoldt et al. (2018), Article 20 GG para 232; Fleiner and Basta Fleiner 2009, p. 237.

[44] See, e.g., Kelsen (1925/1993), p. 91: “'Rule of law' is not to be understood as a state order of specific content [...], but a state whose acts are all adopted on the basis of the legal order.” Kelsen describes the “formal concept of the rule of law” as “primary in relation to the [...] substantive one [...]”, and characterises the state as an “order of coercion” (“Zwangsordnung”). Raz (1979), p. 210; in contemporary legal literature Merten (1975), p. 19, follows a purely formal approach to the rule of law; with regard to the distinction between the formal and the substantive conception of the rule of law, see Sommermann, in von Mangoldt et al. (2018), Article 20 GG para 229 et seqq., 233 et seqq.; cf. also Fernandez Esteban (1999), p. 91 et seqq., 94 et seqq.

[49] Sommermann, in von Mangoldt et al. (2018), Article 20 GG para 247; von der Pfordten (2014), p. 15; von Bogdandy 2014, p. 7.

[50] Spielmann (2022), p. 19; Calliess, in Calliess and Ruffert (2022), Article 2 EUV para 27.

[51] Cf. Schmitt (2012), p. 18, who spells out in derogatory terms: „Das Wort ‚Rechtsstaat‘ kann soviel Verschiedenes bedeuten wie das Wort ‚Recht‘ selbst und außerdem noch soviel Verschiedenes wie die mit dem Worte ‚Staat‘ angedeuteten Organisationen. […]. Es ist begreiflich, daß Propagandisten und Advokaten aller Art das Wort gern für sich in Anspruch nehmen, um den Gegner als Feind des Rechtsstaates zu diffamieren. Ihrem Rechtsstaat und ihrem Rechtsbegriff gilt der Spruch: ‚Recht aber soll vorzüglich heißen, was ich und meine Gevattern preisen‘.“ See also Cf. Fernandez Esteban (1999), p. 67 et seq., who, with regard to the different rule of law conceptions in different states, cites W.B. Gallie’s words on “essentially contested concepts.”

[52] Bingham, 2010, p. 174: “The concept of the rule of law is not fixed for all time”.

[53] The Polish-Lithuanian Commonwealth endured three partitions in 1772, 1793 and 1795 by the Habsburg Monarchy, the Kingdom of Prussia, and Russia, the last of which marked the end of the monarchy.

[55] For a detailed overview of the development of the Polish Constitutional tradition, see Constitutional history of Poland. Available at https://constitutionnet.org/country/poland.

[56] Sokolewicz and Zubik (2016), p. 95; on the rule of law in Polish constitutionalism, see also the contributions in Wronkowska (2006).

[57] Cf. Raz (1979), p. 210: “The rule of law means literally what it says: the rule by laws. Taken in its broadest sense this means that people should obey the law and be ruled by it.”

[58] See, e.g., Article 10.1 of the Polish Constitution of 1935: “No activity shall be counter to the aims of the State, as expressed in its laws.” Several articles of the Constitution of 1921 on rights and freedoms of the citizens maintained in force by virtue of the Annexe to the Constitution of 1935.

[62] Cf. Case C-157/21, Poland v Parliament and Council (CJEU 16 February 2022) para 68. See also, Pech 2009, p. 45; with regard to national evolutions and impacts on other legal systems, see Weber (2019), para 216-222, 229, 231.

[63] Cf. e.g. Case C-50/00 P, Unión de Pequeños Agricultores v Council (CJEU 25 July 2002) para 38 and 39; Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission (CJEU 3 September 2008) para 316; 46295/99, Stafford v United Kingdom (ECtHR 28 May 2001) para 63. In this respect, also Sommermann 1997, p. 372 et seq. distinguishes, following German constitutional law doctrine, between Staatszielbestimmungen (objective principles of the State) and Staatsstrukturbestimmungen/ Staatsstrukturprinzipien (structural, i.e. formal, procedural and organisational principles of the State).

[67] In its report (para 41), the Venice Commission found that consensus exists on the core elements of the rule of law, which entail: (1) legality, including a transparent, accountable and democratic process for enacting laws; (2) legal certainty; (3) prohibition of arbitrariness; (4) access to justice before independent and impartial courts, including judicial review of administrative acts; (5) respect for human rights; (6) non-discrimination and equality before the law.

[70] For a more detailed list of the principles underlying these key features, see Venice Commission, The Rule of Law Checklist, CDL-AD(2016)007rev, p. 11 et seqq., and Weber (2019), para 232-255.

[71] Cf. Article 2 lit. a of the Conditionality Regulation: ‘the rule of law’ refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU”.

[76] Case 70/88, Parliament v Council (ECJ 22 May 1970) para 21 et seqq.; cf. Fernandez Esteban (1999), p. 156 et seqq.

[81] Schukking 2018, p. 155 et seq.; See also Bílková (2021), p. 120–121 for a more comprehensive overview of subsequent case law related to the rule of law.

[85] One could even argue that the EU is facing a multidimensional ‘polycrisis’. Cf. Raube and Costa Reis (2021), p. 628.

[86] Pech and Scheppele 2017, p. 5; Raube and Costa Reis (2021), p. 628: in this context, the authors argue that respect for the Union's fundamental values is challenged by a crisis of democracy and the rule of law in Member States, which comprises three strands of crises: (1) identity crisis, (2) compliance and implementation crisis, and (3) perception crisis.

[88] Müller (2016), p. 208: ‘constitutional capture’ describes “a scenario where one set of partisan actors tries to obtain control of the political system as a whole (as well as parts of the economy, the media and civil society), rendering subsequent changes in political control virtually impossible.”

[95] In 2004, the Czech Republic, Hungary, Poland, Slovakia, Slovenia, Lithuania, Latvia, Estonia, Malta and Cyprus became Member States. The accession of Bulgaria and Romania followed in 2007.

[96] According to Schimmelfennig and Scholtz 2008, p. 189, accession conditionality proves to be a strong and significant factor for the democratisation of the European neighbourhood.

[99] Bugarič 2015, p. 225 et seq.; Calliess 2020, p. 3; Halmai 2019, p. 16; Bugarič 2020, p. 484–485.

[102] A critical comment on the CJEU’s ruling regarding the conformity with EU primary law of the Council’s redistribution decisions of 6 September 2017, Joined Cases C-643/15 and C-647/15,Slovak Republic and Hungary v Council (CJEU 6 September 2017), see Nettesheim (2019), p. 7 (14 et seq.); in favour of this ruling Blanke (2019), p. 59 et seqq.

[104] Case C-216/18 PPU, LM. (CJEU 25 July 2018) para 48; cf. also Bingham 2010, p. 91 et seq.: “The right to a fair trial is a cardinal requirement of the rule of law [...] and that fairness means fairness to both sides [...] and independence of judicial decision-makers.”; Spielmann (2021), p. 11 (12 et seq.).

[105] This seems to be consistent also with the perceived judicial independence in those countries, which according to the EU Justice Scoreboard remains very low (below 30%). SeeFigures 50 and 52 of the 2022 EU Justice Scoreboard. Available athttps://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2022.pdf.

[106] See Case C-791/19, Commission v Poland (CJEU 15 July 2021), confirming the disciplinary regime for judges in Poland to be incompatible with Union law.

[108] Articles 45, 173, 178. 1, 178.3, 186.1, 186.2, 195.1 and 195.3, and 199.3 of the Polish Constitution of 1997.

[109] Article XXVIII para 1 (within the chapter on “Freedom and Responsibility”) and Article 26.1 (within the chapter on “Courts”) of the Hungarian Constitution of 2011.

[110] For Bellamy and Castiglione’s hybrid conception on the European political identity that would reflect the hybrid characteristics of its polity, the so-called “cosmopolitan communitarianism”, see Bellamy and Castiglione (1998), p. 152-178; Bellamy and Castiglione (2000a), p. 170-190; Bellamy and Castiglione (2000b); Bellamy and Castiglione (2003), p. 7-34. In contrast to scholars like Bellamy and Castiglione, however, the republican/communitarian viewpoint generally regards democracy and demos as concepts limited to nation States, and therefore, not suitable for the European Union.

[111] For the thick conception of common good in communitarian approach regarding European constitutionalism see Olsen (2004), p. 75-90; Baykal 2005, p. 40.

[112] The indirect election of the constitutional judges by the committee for the selection of judges of the Bundestag, as practised before under Sect. 6.1 BVerfGG, was partly objected to as being unconstitutional. For criticism, see e.g. Eichborn 1969; Pieper 1998, p. 29 et seqq.; Voßkuhle, in von Mangoldt et al. (2018), Article 94 para 10. But the Federal Constitutional Court has confirmed the provision of Sect. 6 of the Federal Constitutional Court Act as being in conformity with the Basic Law and has pointed out in this respect: "It is constitutionally unobjectionable that the German Bundestag choses the judges of the Federal Constitutional Court […] by indirect election through a selection committee consisting of twelve deputies (§ 6 BVerfGG)." Cf. German Federal Constitutional Court, Order of 19 June 2012 –2 BvC 2/10, para 9 et seqq.

[113] According to Article 95.2 of the Basic Law in conjunction with Sect. 1.1 of the Federal Judges Election Act (Richterwahlgesetz), the judges of the federal courts „shall be chosen jointly by the competent Federal Minister and a committee for the selection of judges consisting of the competent Land ministers and an equal number of members elected by the Bundestag. Cf. Wissenschaftliche Dienste des Deutschen Bundestages 2017; Groß 2019.

[115] According to Article II, Sect. 2, clause 2 of the US Constitution, the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint […] Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law.”

[117] For a detailed overview of developments in Poland with regard to the rule of law since 2015, see Halmai 2019, p. 26 et seq.; Sadurski 2018, p. 17 et seqq.

[118] Niklewicz 2017, p. 282; Sadurski 2018, p. 19; Wyrzykowski 2019, p. 417; Gajda‑Roszczynialska and Markiewicz 2020, p. 457.

[119] Venice Commission Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, CDL-AD(2017)031, para 14. Available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)031-e (11 December 2017).

[120] The government has justified the reforms on the grounds of low public confidence in the judiciary, which is related to the generally low level of trust in the legal system, the inefficiency of legal proceedings and the fact that the Polish judiciary has not accounted at all for its communist past. For a detailed discussion of the arguments, see https://www.statewatch.org/media/documents/news/2018/mar/pl-judges-association-response-judiciary-reform-3-18.pdf.

[123] Bodnar 2018, p. 649; Wyrzykowski 2019, p. 417; Sadurski 2018, p. 40; Venice Commission Poland – Opinion on the Draft Act amending the Act on the National Council of the Judiciary; on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, CDL-AD(2017)031, para 90.

[124] Wróblewska 2020, p. 145; Pech et al. 2021, p. 13, 28; Bossong 2021, p. 3; SWD(2020) 320 final, p. 3.

[125] Case C-619/18, Commission v Poland (CJEU 24 June 2019) and C-192/18, Commission v Poland (CJEU 5 November 2019). Legal scholars argue that the legislative act lowering the retirement age of Supreme Court judges is a violation of the principles of judicial independence and the principle of the irrevocability of judges; cf. Spielmann (2021), p. 9.

[126] Following the amendment, the Minister of Justice shall enjoy full authority over the appointment and dismissal of court presidents as well as employees in key positions in the courts. Cf. Bodnar 2018, p. 647.

[127] Gajda‑Roszczynialska and Markiewicz 2020, p. 458 et seq.; Pech et al. 2021, p. 9; Commission Staff Working Document 2020 Rule of Law Report. Country Chapter on the rule of law situation in Poland, SWD(2020) 320 final, p. 4–5; Venice Commission Poland – Urgent Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on amendments to the Law on the Common courts, the Law on the Supreme court and some other Laws, issued pursuant to Article 14a of the Venice Commission’s Rules of Procedure on 16 January 2020, CDL-AD(2020)017, para 8–11. Available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)017-e (22 June 2020).

[129] Gajda‑Roszczynialska and Markiewicz 2020, p. 461; Pech et al. 2021, p. 3; SWD(2020) 320 final, p. 6-7; Venice Commission Poland – Urgent Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on amendments to the Law on the Common courts, the Law on the Supreme court and some other Laws, issued pursuant to Article 14a of the Venice Commission’s Rules of Procedure on 16 January 2020, CDL-AD(2020)017, para 11.

[130] Gajda‑Roszczynialska and Markiewicz 2020, p. 455; Bossong 2021, p. 3; Pech et al. 2021, p. 29.

[133] The motion has been triggered by recent judgments of the CJEU, which found some alterations to the Polish judicial system to be incompatible with Union law. See the CJEU’s judgement of 2 March 2021 (Case C-824/18, A.B. and Others (Appointment as judge of the Polish Supreme Court), para 169), in which it ruled that the current national procedure for selecting judges was not compatible with Union law. Cf. Łętowska 2021.

[140] For example, in June 2021, the Commission decided to initiate infringement proceedings against Germany for breach of the principle of the primacy of Union law in connection with the Federal Constitutional Court’s ruling of 5 May 2020 on the partial unconstitutionality of the ECB’s bond purchases (2 BvR 859/15). However, the Commission recently resolved to close the infringement proceedings against Germany.

[141] Thiele 2021; Bárd and Bodnar 2021, p. 3. In this context, the Polish Constitutional Tribunal has already challenged the Union’s legal order in various judgments, e.g., in cases K 6/21, P 7/20, K 3/21, K 5/21, K 8/21. Cf. Łętowska 2021.

[150] With regard to the importance of Article 19.1 TEU in conjunction with Article 47 CFREU as a subjective right to an effective remedy and to a fair trial in the CJEU’s case law, see Case C-487/19, Procurator (CJEU 6 October 2021) para 107 et seq., 124-126, with reference to the ECtHR's case law (para 124); the Court regards the right to the lawful judge as an element of the right to a fair trial (para 126). See also Terhechte 2020, p. 571, 592.

[152] For the situation that has arisen in Germany on the occasion of the early closed infringement proceedings as a result of the ruling of the BVerfG of 5 May 2020 (PSPP), cf. the statement made by the Federal Government as summarised by the European Commission in the press release of 2 December 2021. According to this statement, the German government “with explicit reference to the [...] duty of loyal cooperation [undertakes] to use all means at its disposal to actively avoid a repetition of an ultra vires finding [by the BVerfG] in the future” (available at https://germany.representation.ec.europa.eu/news/vertragsverletzungsverfahren-im-dezember-eu-kommission-stellt-verfahren-gegen-deutschland-wegen-ezb-2021-12-02_de). Hain and Ferreau 2021 interpret this “obligation” in a way consistent with the constitution in the sense that the federal government “only wanted to promise the use of means that preserve judicial independence [Article 97.1 GG].” But even then, in the authors’ view, constitutional doubts remain with regard to the BVerfG’s possible approval of such a declaration by the federal government. On other aspects of judicial independence in the enforcement of Union law in Germany, see Terhechte 2020, p. 588 et seq.

[153] Hilf and Schorkopf, in Grabitz et al. (2021), Article 2 EUV para 47; Calliess, in Calliess and Ruffert (2022), Article 2 EUV para 34.

[154] Regulation (EU) 2021/241 of the European Parliament and of the Council establishing the Recovery and Resilience Facility (RRF Regulation), O.J. L 57/17 (2021).

[155] Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy, O.J. L L 231/159 (2021)

[158] Cf. in this respect Article 102 of the Financial Regulation as well as Case C-87/01 P, Commission v CCRE (ECJ 10 July 2003) para 56.

[159] Commission Proposal for a Council implementing decision of 1 June 2022 on the approval of the assessment of the recovery and resilience plan for Poland, COM(2022)0268. See preceding Commission Recommendation of 23 May 2022 for a Council Recommendation on the 2022 National Reform Programme of Poland and delivering a Council opinion on the 2022 Convergence Programme of Poland, COM(2022)0622.

[161] Commission Communication 2022 Rule of Law Report - Country Chapter on the rule of law situation in Poland, SWD(2022) 521 final, p. 6-7.

[163] Joint Motion for a Resolution on the rule of law and the potential approval of the Polish national recovery plan (RRF), 2022/2703(RSP).

[166] Cf. Commission Communication A new EU Framework to strengthen the Rule of Law, COM(2014) 158 final, p. 4.

[167] Baratta 2016, p. 362–363; Kochenov and Pech 2016, p. 1064; Pech and Scheppele 2017, p. 9 et seqq.

[169] Kochenov and Pech 2016, p. 1066; Baratta 2016, p. 364–365; Österdahl (2019), p. 250.

[171] Cf. Commission Recommendation (EU) 2016/1374 regarding the rule of law in Poland, O.J. L 217/53 (2016); Commission Recommendation (EU) 2017/146 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374, O.J. L 22/65 (2016); Commission Recommendation (EU) 2017/1520 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146, O.J. L 228/19 (2017); Commission Recommendation (EU) 2018/103 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520, O.J. L 17/50 (2017).

[174] Cf. see Commission Communication on Article 7 of the Treaty on European Union. Respect for and promotion of the values on which the Union is based, COM(2003) 606 final, p. 5 and Commission Communication Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010) 573 final, p. 10; Mangiameli and Saputelli, in Blanke and Mangiameli (2013), Article 7 TEU para 6, 9.

[176] According to von Bogdandy (2014, p. 10, 12), there is a systemic deficit in the rule of law under Union law if the value enshrined in Article 2 TEU is substantially threatened. In this context, the systemic deficit of the rule of law is to be conceptually distinguished from simple, i.e. isolated, violations of Union law. While in the case of an isolated violation of Union law, disappointed normative expectations continue to exist and remain relevant for future behaviour, trust in the law ceases to exist in the case of a systemic deficit which means that normative expectations cannot be maintained.

[177] Commission Communication Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010) 573 final, p. 10.

[178] Hilf und Schorkopf, in Grabitz et al. (2022), Article 2 EUV para 46a. Cf. on the infringement proceedings against Poland for violating Article 19.1 in conjunction with Article 2 TEU, see https://ec.europa.eu/commission/presscorner/detail/EN/IP_21_7070 (22 December 2021).

[179] For a detailed description of the concept of ‘systemic infringement procedures’, cf. Scheppele (2016), p. 108 et seqq.

[180] Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM(2017) 835 final.

[181] European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, 2017/2131(INL).

[183] Cf. European Parliament Resolution of 6 June 2022 on the call for a Convention for the revision of the Treaties, 2022/2705(RSP), sub D point 5.

[184] Kochenov and Pech 2016, p. 105; Diel-Gligor 2021, p. 65; Kochenov (2021), p. 143. In fact, an abstention under qualified majority voting counts as a vote against. Abstention is not the same as not participating in the vote. Any member can abstain at any time. Cf. https://www.consilium.europa.eu/en/council-eu/voting-system/qualified-majority/.

[185] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, O.J. L 433 I/1 (2020). For an analysis of conditionality mechanism in the light of the CJEU´s judgments in Cases C-156/21, Hungary v Parliament and Council, C-157/21, Poland v Parliament and Council (CJEU 16 February 2022), cf. Diel-Gligor 2021, p. 64; Kölling (2022).

[186] Cf. 7th Recital of the Preamble to Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, O.J. LI 433/1 (2020).

[191] See Commission Communication Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality for the protection of the Union budget, C(2022) 1382 final.

[193] Cf. recital 18 of Regulation (EU, Euratom) 2020/2092; cf. also point 44 of the Commission Communication of 2 March 2022 (C(2022) 1382 final) and Article 10.4 of RRF Regulation.

[196] Cf. Case C-157/21, Poland v Parliament and Council (CJEU 16 February 2022) para 129.

[201] Cf. Maluwa (2019), p. 320, with regard to value-based norms on an international scale.

THE EUROPEAN (UNION’S) RULE OF LAW AND ITS OBJECTORS –SOME OBSERVATIONS ON THE SITUATION IN POLAND WITH A SIDE GLANCE AT HUNGARY–[*]

EL ESTADO DE DERECHO (DE LA UNIÓN) Y SUS OBJETORES—ALGUNAS OBSERVACIONES SOBRE LA SITUACIÓN EN POLONIA, CON UNA MIRADA COMPLEMENTARIA A HUNGRÍA

Hermann-Josef Blanke

Aimee Sander

Research assistant at the Erfurt Chair (Germany)

SUMARIO

1. The Current State of the Rule of Law in the Union.

2. The European ‘Rule of Law Crisis’ as an Outcome of “Autocratic Legalism”.

3. Countermeasures against the Rule of Law Violations in Poland and Hungary.

4. Balancing the Rule of Law with Other National and Union Interests?

5. References.

1. THE CURRENT STATE OF THE RULE OF LAW IN THE UNION.

2. THE EUROPEAN ‘RULE OF LAW CRISIS’ AS AN OUTCOME OF “AUTOCRATIC LEGALISM”.

3. COUNTERMEASURES AGAINST THE RULE OF LAW VIOLATIONS IN POLAND AND HUNGARY.

4. BALANCING THE RULE OF LAW WITH OTHER NATIONAL AND UNION INTERESTS?.

5. REFERENCES.[202]