WEBINAR 9: REMEDIES & RENEWAL - Constitutional Decay in Europe: Can the EU Save the Day?
Matteo BONELLI
25 November 2020
For almost a decade now, the European Union (EU) has struggled to find convincing answers to cases of constitutional decay in its own Member States, most notably in Hungary and Poland. Politicians, civil society, academics, and often also ordinary citizens of the countries concerned, have sometimes harshly criticized the EU for ‘not doing enough’ and called the EU institutions to ‘do more’. There is indeed no doubt that several mistakes have been made in the use of the Union’s values-protection toolkit.
Yet, ten years after the first signs of the crisis, it is probably time to reassess our expectations and start a deeper reflection on what can really be achieved by EU intervention and on where EU action should focus. This is what I aim to do in the following paragraphs, explaining why I believe that a EU top-down rescue of national democracies and rule of law systems is out of the question, but at the same time that the EU can still have a key role in fighting constitutional decay in its Member States.
Constitutional Decay: A Common EU Concern
Before moving to the core message of my contribution, however, a brief introductory remark is necessary. Regardless of what one believes should be the goals of EU intervention, it is essential to understand that constitutional decay is not only a national concern, a Hungarian or Polish problem, but a truly European one, one that affects the European Union as a whole. To offer only one example, cases of constitutional decay undermine systems of cooperation between EU Member States based on the principle of ‘mutual trust’. A Dutch court made the point very clearly in a 2020 preliminary reference to the Court of Justice of the EU (CJEU), asking whether it should suspend cooperation – in the context of the so-called European Arrest Warrant - with Polish courts in view of the systemic problems with judicial independence caused by the reforms of the judiciary.
As soon as even only one Member State fails or refuses to uphold the common values of the Union established by Art.2 TEU, the entire system is affected, and EU institutions need to take action and try to tackle situations of constitutional decay. To be clear in this respect: I fully agree with those who argue that the EU needs to ‘do more’ in order to protect its foundational values and the smooth functioning of the Union system. But here lies the key tension, as grasping more precisely what the institutions need to do, and how, is a much more complex question and exercise. The EU only has limited mechanisms at its disposal, and, more structurally, the EU constitutional settlement rests on a thin balance, exemplified perhaps more evidently by the tension between diversity and commonality, between the ‘common values’ and the need to protect and respect the national identity of the Member States, as Art.4(2)TEU requires.
Constitutional Decay and EU Intervention: What Has Gone Wrong So Far
Rather than describing in detail how EU institutions have reacted to each and every development of the Hungarian and Polish crises, and eventually where mistakes have been made, I would like here to identify what might have been the major shortcoming in the institutional – but often, also academic - approach to the constitutional decay question. I will define it as the ‘silver bullet’ approach, in the sense that, too often, the debate went in the direction of seeking a single and almost magical solution to the crises. To offer a few examples: after the first attempts to intervene in Hungary via the more ordinary mechanism of infringement actions under Article 258 TFEU produced limited results, the Commission came up with a new solution, the ‘Rule of Law Framework’, which was then activated against Poland. That instrument proved insufficient as well. Then, it was the turn of what had been mistakenly defined the ‘nuclear option’, namely Article 7 of the Treaty on European Union (TEU). As many hoped, Article 7(1) was finally launched first against Poland, and then against Hungary, yet it fell once again short of the high expectations that had been raised, as the two procedures were soon stuck at the Council level. Today, the debate concentrates on yet another possible silver bullet, the proposed ‘Rule of Law conditionality’ regulation, an instrument that would allow EU institutions to suspend EU funds in case of rule of law problems in a Member State.
The ongoing debate on the latter instrument well shows the problems of the silver bullet approach, as former commissioner Andor also pointed out just last month. While it is clear that, by introducing a conditionality clause linked to the distribution of EU funds, the Union’s values-protection toolbox might be further strengthened, it would be a mistake to think that the new regulation alone will be a fundamental game-changer. Evidently, much will actually depend on the outcome of the negotiations and the final decisions on the scope of the instrument and its decision-making procedures. Even if the institutions manage to overcome the Hungarian and Polish veto on the Multiannual Financial Framework, which has for the time being halted the final adoption of the Rule of law conditionality regulation, it is all to be seen what effects the new instrument may actually produce in practice. Its ability to trigger meaningful domestic change is to be tested, and the idea actually comes with possible risks, in particular in terms of potentially alienating the domestic population from the EU and produce rally-round-the-flag effects.
Rather than taking robust action with the already existing instruments, energies and political capital are invested into creating yet another tool, with little guarantee that it will actually work, and even more fundamentally, with no clear ideas on what precise results it is meant to achieve.
Most crucially, the problem with the approach I have described is that no silver bullet actually exists. Constitutional decay is such a complex, multi-level issue that it cannot be addressed by inventing a new instrument, or finding in the current EU treaties a tool that has somehow remained hidden so far. In this respect, for far too long, EU institutions – and often commentators and observers – have struggled to realize that the challenge is not finding the perfect instrument, but rather combining existing, and only where absolutely necessary, new tools.
Furthermore, the search for a silver bullet has made us emphasize top-down solutions, imagining the EU coming to the rescue of national democracies and rule of law systems. Too little attention has been paid to bottom-up solutions, and to how EU intervention can contribute to individual and collective resistance within the Member States concerned. Yet it is arguably time to acknowledge that any EU-led, top-down rescue national democracies and rule of law systems seems extremely unlikely, if not plainly impossible.
It becomes even more difficult to believe that the key answer can come mainly, or exclusively, from the EU level if we accept the argument made most recently by Kratsev and Holmes that one of the very causes of decay in Hungary and Poland might be resentment against the ‘imitation imperative’ that has been sponsored by the EU since the beginning of the 1990s; that is, the requirement that newer Member States must emulate the institutional, political, and economic organisation of older Member States. Furthermore, and to conclude this part of the analysis, if it is true that democracy and the rule of law are more than a set of institutions, and depends on broad cultural and societal factors, then once again, those can hardly be imposed or created by the outside or from the top.
Constitutional Decay and EU Intervention: What Can, and Should, Be Done
I would argue, therefore, that those involved – at various levels - in the debate should stop looking for a silver bullet, accept the limitations of the EU framework, and more broadly, the limitations of outsiders’ interventions in domestic constitutional regimes, and then reflect in a more structured fashion on what should be the objectives of EU action or intervention. My argument is that the EU should focus on more realistic goals: protecting, empowering, and mobilizing those domestic actors that can resist and slow down constitutional decay within the national political and legal order, and then trying to foster conditions for domestic constitutional renewal in the medium and long term. To make my suggestion more concrete, I would like to offer three examples of areas in which the EU could intervene and how it could do so.
First, it is essential that EU institutions take robust and swift action to guarantee the independence of the national judiciary. The importance of independent courts for protecting the rule of law can hardly be overstated, and in the EU legal order, (independent) national courts become even more crucial as an avenue to protect EU-law-derived rights, also thanks to their direct link with the CJEU via the preliminary reference procedure, which empowers national courts to ask to the Court of Justice questions on the interpretation and validity of EU law.
Now, while it is true that both in Hungary and Poland a lot of damage has already been done – in particular when it comes to the two constitutional courts – many judges in the ordinary judiciary are still bravely resisting attacks to judicial independence in a variety of ways, from preliminary references to the CJEU, to political action in a wider sense. The Commission in particular should constantly and carefully monitor the situation and, by relying on the key provision of Art.19 TEU, open infringement actions whenever necessary, ensuring that the CJEU gets the opportunity to decide the relevant cases as soon as possible, and, where needed, also make use of interim orders in order to prevent any consolidation of controversial reforms. The action concerning the Polish Supreme Court offers a positive model in that respect: by reacting promptly and forcefully, the Commission was originally able to stop the attempt to capture the Supreme Court by modifying the retirement age of the court’s judges.
Secondly, EU action could focus on the protection of those fundamental rights that can ensure participation in political debate and democratic contestation, such as freedom of expression or association. In developing this ‘procedural’ approach to fundamental rights’ protection as also suggested by Dawson, the Commission, following up on what has been done in the context of the ‘NGO law’ (measures limiting the possibilities of NGOs operating in Hungary to receive funding from abroad) and the ‘CEU law’ (a reform of the system of Higher Education institutions, which de facto forced the Central European University to leave Budapest and relocate to Vienna) in Hungary, should make more structured use of the Charter of Fundamental Rights in the context of Art.258 procedures.
In this respect, an area to be explored is that of freedom of information and media pluralism, where the EU so far has mostly remained silent, but where real concerns exist in both Hungary and Poland, as the recent Commission Rule of Law Report also made clear. While we should not forget that the EU Charter of Fundamental Rights has a limited scope of application, and thus that EU institutions must always demonstrate that the national law or measure in question ‘falls within the scope of EU law’ under Art.51 of the Charter, the Commission could try to use EU competition and state aid law in a creative manner.
In this respect, there seems to be recent promising developments. If the Commission can demonstrate that Hungarian and Polish media regulation runs afoul of EU competition rules, then it can ‘attach’ a possible violation of the Charter provisions guaranteeing freedom of expression and information. In this respect again, however, the Commission should try to make sure that its actions are timely and that decisions are taken swiftly, unlike what happened for example in the CEU case.
Finally, and to some extent this suggestion might come too late, as the key financial decisions for the next multiannual budget have already been reached, the EU could invest more in ‘positive’ conditionality and make proactive use of its funds, rather than on the ‘negative’ conditionality under discussion at the moment. For example, while it is true that a new ‘Justice, Rights & Values’ fund was created, this happened to a large extent by repackaging existing programmes, without increasing the Union’s financial commitment. In this respect, and while we are still waiting for the outcome of the discussion on the rule of law conditionality proposal, the negotiations on the multi-annual financial framework might have been a missed opportunity. Yet, if we unfortunately have to accept that the fight against constitutional decay will continue for years, then these proposals could then return in the next years and eventually even in the negotiations of the next budget.
To some, the suggestions I have advanced might be underwhelming, perhaps too little, too late. As a possible response, I would like to first make clear that those efforts should be seen as complementing other initiatives at the EU level, rather than fully replacing them. For example, there is no doubt that procedures under Art.7 TEU should continue, and actually that the Commission and the EP should try to push the Council to adopt its final decisions as soon as possible.
Second, I ultimately agree that the framework I have proposed falls short of what others have claimed, for example arguing for a stronger ‘militant democracy’ type of intervention. But as argued earlier, I believe there is a limit to what can be achieved by EU intervention, at the very least in the current context. While on a more normative level we might want to see the EU becoming a militant democracy, this is not what the current constitutional framework provides, and it is unlikely that such a transformation can take place soon.
To conclude, the EU most likely cannot ‘save the day’. Even if the EU institutions would adequately address the mistakes that have been made so far, most of key answers are to be found in the domestic arena. Domestic actors ultimately have a fundamental responsibility in finding solutions at the national level, and it is in this respect that the EU should intervene, doing its best to protect and support those actors that can slow down constitutional decay today, and create the conditions for democratic renewal in the longer run.
Matteo Bonelli is assistant professor of European Union law at the Faculty of Law of Maastricht University and a member of the Maastricht Centre for European Law (MCEL). His doctoral dissertation, defended (cum laude) at Maastricht University in June 2019, reflected on how the European Union can best protect its basic values – democracy, the rule of law, and fundamental rights – in the Member States. His research focuses on EU institutional and constitutional law, and on comparative constitutional law. In 2020, he was an Emile Noël Fellow at the Jean Monnet Center of New York University.