Bridging Brexit and the Values Crisis: From Constitutional Resistance to Deliberation?

By Oliver Garner[1]

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

It may have seemed that the EU’s “Rule of Law crisis”[2] was finally being resolved as 2023 commenced. For the first time since 2015, action by the EU institutions induced both Hungary and Poland to adopt legislation on the organisation of their judiciaries.[3] The decisive factor appears to have been the use of financial pressure through the withholding of EU funds.[4] Nevertheless, problems on a number of fronts suggest that this will not be the silver bullet to solve the values crisis. Domestically, civil society organisations in Poland and Hungary have criticised the draft legislation as insufficient to fulfil the EU’s conditions.[5] At the European level, the Court of Justice of the EU has continued to find infringements by Poland of legal provisions manifesting the EU’s values.[6] More recently, the European Commission has brought a new infringement action against Warsaw for proposing a committee to examine Russian influence on the internal security of Poland ahead of the October election.[7] The recent victory in Poland by the opposition bloc led by Donald Tusk shows that there are still democratic routes to ending the rule of backsliding governments at the national level.[8] This paper, however, will focus on what can be done at the European level to confront this continuing phenomenon.

The criticism presented in this paper of the recent use of financial instruments is normative rather than focusing on efficacy. The starting proposition is that securing compliance with the values of a polity through financial incentives risks undermining genuine adherence to those foundations. Instead, it may establish and reinforce a transactional relationship.[9] In the specific supranational context of the EU, the danger is the creation of client states of Brussels, replicating “patronal” dynamics from the national level.[10] The recommendation provided here is that values conflicts cannot be solved solely through legal enforcement, but instead should be subject to political deliberation amongst constituent partners. If such mechanisms to facilitate “Voice”[11] in reaction to resistance as a deficit in “Loyalty”[12] are unsuccessful, lessons may be drawn instead from the recent novel experience of “Exit”[13] through the United Kingdom’s withdrawal from the EU.

The next section provides an introduction to the “Rule of Law crisis” and the EU’s response. The section after presents the Hungarian and Polish positions as resistance to supranationalism per se, and argues that the EU’s amendment and withdrawal clauses are the mechanisms designed to address such a phenomenon. Consequently, the failures of the Article 7 TEU pre-sanctioning mechanisms are explained through this lens. The penultimate section proposes a pathway to Article 48 TEU and Article 50 TEU through reform of the Article 7 TEU procedure. This draws upon the United Kingdom experience of renegotiation before the eventual decision to withdraw. The concluding sentiment is that if everything is done to provide a platform for resistant Member States to present their vision of European integration to their constituent partners, and these deliberations fail either to provoke adoption by the EU or adaptation through opt-outs, then that state’s government should cease its resistance to integration or else cease its participation in the European Union.

The Rule of Law Crisis and EU Action

After developments in Hungary following the re-election of Viktor Orbán in Hungary in 2010 had attracted criticism from the EU and the Council of Europe,[14] the Rule of Law crisis spread and gathered steam in 2015 following changes made to the Polish Constitution Tribunal by the Law and Justice Party after their general election victory. In October 2015, before the elections, the outgoing lower house of Parliament nominated five new candidate judges for the Tribunal to replace incumbents whose term of office was set to expire after the elections.[15] In reaction, the new Law and Justice majority adopted amendments to the Act on the Constitutional Court regarding the procedure for appointing judges, adopted a resolution nullifying the election of the five judges, and proposed a new group of selections.[16] This irregularity has seen the Law and Justice nominations to the Constitutional Tribunal polemically referred to as “Fake Judges” by critical academics,[17] and claims that the “so-called” court is “captured”.[18] Most pertinently for the purposes of the argument here, the Constitutional Tribunal has since delivered judgments that are hostile to supranational constitutionalism. These decisions have challenged any attempts from beyond the state to question the legitimacy of judicial structures, including those by the European Court of Human Rights[19] in addition to the Court of Justice of the EU.

In the K 3/21 decision in October 2021, the Tribunal held that the doctrines of ever closer union, the duty of sincere co-operation, and effective legal protection in Articles 1, 2, 4(3) and 19 TEU respectively are incompatible with the Polish Constitution insofar as they allow the EU to act outside the competences conferred by Poland, undermine the Constitution as the supreme law, and mean that the “Republic of Poland may not function as a sovereign and democratic state”.[20] Specifically regarding the judiciary, the Tribunal held that Article 19 TEU and the interpretation thereof by the Court of Justice of the EU is incompatible with the Constitution insofar as it grants national courts the competence to “review the legality of the procedure for appointing a judge…review the legality of the National Council of the Judiciary’s resolution to refer a request to the President…to appoint a judge… [and] determine the defectiveness of the process…and refuse to regard a person appointed to judicial office…as a judge”.[21] The judgment was regarded by critics as such a fundamental challenge to the precepts of EU law that it was argued to constitute a form of “legal Polexit”,[22] with some commentators even making the nebulous assertion that the judgment could be construed as a formal notification of intent to withdraw under Article 50 TEU.[23] The Polish government also intervened in the functioning of the ordinary judiciary. In 2019, the Parliament enacted the Polish Supreme Court Disciplinary Chamber Law. The Chamber had the power to decide that judgments issued by ordinary judges constituted a disciplinary offence, including decisions to make preliminary references to the Court of Justice of the EU.[24] The Disciplinary Chamber was replaced with the Chamber of Professional Liability in 2022,[25] amongst warnings that the problems of the regime would remain despite the formal change.[26]

Unlike Poland, Hungary has not witnessed such a full-frontal assault on the legitimacy of EU law with regard to the organisation of the judiciary. The issue of the governing majority enacting measures affecting judges did in fact arise three years before the Polish constitutional crisis, through a lowering of the retirement age, but it was dealt with before the Court of Justice of the EU as an issue concerning non-discrimination on the basis of age rather than a systemic threat to the Rule of Law.[27] Illegitimate interference with judicial independence appears to be more insidious in Hungary, with claims being made by the spokesman for the National Judicial Council that the ruling Fidesz party use backdoor channels to influence judges, particularly in politically sensitive cases.[28] Regarding the constitutional court, the argument has been made that the bench has adapted itself to the regime’s expectations to create “abusive constitutionalism”,[29] rather than an explicit intervention in its composition being required as in Poland. Nevertheless, more recently the EU institutions have identified a number of issues that pose a challenge to the Rule of Law in Hungary. These issues include the President of the National Office for the Judiciary holding too much power over appointments, transfer, and removal of judges; insufficient suitability criteria for the President of the Supreme Court; inappropriate rules on case allocation; obstacles to judges making preliminary references such as review by the Supreme Court of the legality of such a referral; and the possibility for public authorities to challenge the finality of Constitutional Court judgments.[30]

Click here to read the full paper.

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Footnotes

[1] Research Leader in European Rule of Law, Bingham Centre for the Rule of Law, BIICL; Post-Doctoral Research Fellow, Managing Editor of the CEU Democracy Institute Working Paper series, and Editor of Review of Democracy, CEU Democracy Institute; re:constitution Fellow 2022-23.

[2] Anna Södersten and Edwin Hercock (eds), ‘The Rule of Law in the EU: Crisis and Solutions’ June 2023: 1op Swedish Institute for European Policy Studies.

[3] Paola Tamma, ‘Hungary Embarks on Judicial Reform Hoping to Unlock EU Cash’ (POLITICO, 2 May 2023) <https://www.politico.eu/article/hungary-embarks-on-judicial-reform-hoping-to-unlock-eu-cash/> accessed 19 July 2023. Jan Cienski, ‘Poland’s Rule of Law Legislation Moves Forward — but Fights Remain’ (POLITICO, 13 January 2023) <https://www.politico.eu/article/poland-european-union-rule-law-legislation-moves-forward-but-fights-remain/> accessed 19 July 2023.

[4] Bernd Riegert, ‘Rule of Law: EU Reprimands Poland and Hungary – DW – 07/09/2023’ (dw.com) <https://www.dw.com/en/rule-of-law-eu-reprimands-poland-and-hungary/a-66165982> accessed 19 July 2023.

[5] ‘Anna Wojcik on the EU’s Approval of Poland’s Recovery Funds | CEU Democracy Institute’. Nagy Bernadett, ‘Q&A – Why Super Milestone 215 Is Not Achieved’ (Hungarian Helsinki Committee, 16 May 2023) <https://helsinki.hu/en/qa-super-milestone/> accessed 16 May 2023; Hungarian Helsinki Committee, Amnesty International, and Eötvös Károly Intézet, ‘Assessment of Act X of 2023 on the Amendment of Certain Laws on Justice related to the Hungarian Recovery and Resilience Plan in light of the super milestones set out in the Annex to the Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Hungary (Hungarian Helsinki Committee, 22 May 2023) < https://helsinki.hu/wp-content/uploads/2023/05/Assessment_of_the_Judicial_Reform_052023.pdf> accessed 20 November 2023..

[6] Nicolas Camut, ‘EU Court Finds Poland Guilty in Rule-of-Law Dispute’ (POLITICO, 5 June 2023) <https://www.politico.eu/article/eu-court-finds-poland-guilty-in-rule-of-law-dispute/> accessed 19 July 2023. Elisa Braun, ‘Top EU Court Whacks Poland on Judiciary’s Lack of Independence, Again’ (POLITICO, 13 July 2023) <https://www.politico.eu/article/eu-judges-polish-courts-ignore-governments-removal-judges/> accessed 19 July 2023.

[7] European Commission, ‘Commission Launches Infringement Procedure against POLAND’ (European Commission – European Commission) <https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3134> accessed 19 July 2023.

[8] Jan Cienski, ‘Poland election results: Opposition secures win, final count shows’ (Politico, 17 October 2023) < https://www.politico.eu/article/poland-election-results-opposition-donald-tusk-wins-final-count-civic-platform-pis/#:~:text=WARSAW%20%E2%80%94%20Poland’s%20opposition%20parties%20won,Electoral%20Commission%20on%20Tuesday%20morning.> accessed 20 November 2023; Oliver Garner, ‘Taking Stock: The Polish Opposition Victory and the Rule of Law’, (Review of Democracy, 26 October 2023) < https://revdem.ceu.edu/2023/10/26/taking-stock-the-polish-opposition-victory-and-the-rule-of-law/> accessed 20 November 2023.

[9] Oliver Garner and Teodora Miljojkovic, ‘What Price the Rule of Law? | Review of Democracy’ (19 February 2021) <https://revdem.ceu.edu/2021/02/19/what-price-the-rule-of-law/> accessed 19 July 2023.

[10] Balint Madlovics and Balint Magyar, ‘Hungary’s Dubious Loyalty: Orban’s Regime Strategy in the Russia-Ukraine War | CEU Democracy Institute’ 2023/07 CEU Democracy Institute Working Paper <https://democracyinstitute.ceu.edu/articles/balint-madlovics-balint-magyar-hungarys-dubious-loyalty-orbans-regime-strategy-russia> accessed 19 July 2023.

[11] Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States (Illustrated edition, Harvard University Press 1990).

[12] Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 The Yale Law Journal 2403.

[13] Carlos Closa, ‘Interpreting Article 50: Exit, Voice and … What About Loyalty?’ in Carlos Closa (ed), Secession from a Member State and Withdrawal from the European Union: Troubled Membership (Cambridge University Press 2017) 50 <https://www.cambridge.org/core/books/secession-from-a-member-state-and-withdrawal-from-the-european-union/interpreting-article-50-exit-voice-and-what-about-loyalty/638AB5D1336CDE1F38DEC2AFF44B7069> accessed 19 July 2023.

[14] See Rui Tavares, ‘Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012)’ European Parliament Committee onCivil Liberties, Justice and Home Affairs report A7-0229/2013, 24 June 2013 (2012/2130(INI)) < https://www.europarl.europa.eu/doceo/document/A-7-2013-0229_EN.html> accessed 20 November 2023; European Commission for Democracy through Law (Venice Commission) ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’, Opinion 720/2013, CDL-AD(2013)012, 17 June 2013 < https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2013)012-e#:~:text=A.,-The%20protection%20of&text=Article%201%20of%20the%20Fourth,basis%20of%20the%20nation’s%20survival.> accessed 20 November 2023.

[15] Xero Flor W Polsce Sp Z O O v Poland [2021] ECtHR 4907/18 [8].

[16] ibid [13]–[21]; Arkadiusz Radwan, ‘Chess-boxing around the Rule of Law: Polish Constitutionalism at Trial’ [2015] Verfassungsblog <https://verfassungsblog.de/chess-boxing-around-the-rule-of-law-polish-constitutionalism-at-trial/> accessed 3 August 2023.

[17] Laurent Pech, ‘Dealing with “Fake Judges” under EU Law – RECONNECT’ (14 May 2020) <https://reconnect-europe.eu/blog/dealing-with-fake-judges-under-eu-law/> accessed 3 August 2023.

[18] Tomasz Tadeusz Koncewicz, ‘The Capture of the Polish Constitutional Tribunal and Beyond: Of Institution(s), Fidelities and the Rule of Law in Flux’ (2018) 43 Review of Central and East European Law 116.

[19] ‘Expert Analysis of the Applicability of Article 6 of the European Convention on Human Rights to the Constitutional Courts of the States Parties, Requested by the Polish Commissioner for Human Rights in the Context of the Case K 6/21’ (22 November 2021) <https://binghamcentre.biicl.org/publications/expert-analysis-of-the-applicability-of-article-6-of-the-european-convention-on-human-rights-to-the-constitutional-courts-of-the-states-parties-requested-by-the-polish-commissioner-for-human-rights-in-the-context-of-the-case-k-621> accessed 3 August 2023.

[20] ‘Trybunał Konstytucyjny: Ocena Zgodności z Konstytucją RP Wybranych Przepisów Traktatu o Unii Europejskiej’ <https://trybunal.gov.pl/en/hearings/judgments/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-unii-europejskiej> accessed 3 August 2023.

[21] ibid.

[22] ‘Polish and EU Courts Clash as Critics Warn of Legal “Polexit”’ (www.euractiv.com, 15 July 2021) <https://www.euractiv.com/section/politics/short_news/polish-and-eu-courts-clash-as-critics-warn-of-legal-polexit/> accessed 3 August 2023.

[23] Herwig CH Hofmann, ‘Sealed, Stamped and Delivered: The Publication of the Polish Constitutional Court’s Judgment on EU Law Primacy as Notification of Intent to Withdraw under Art. 50 TEU?’ [2021] Verfassungsblog <https://verfassungsblog.de/sealed-stamped-and-delivered/> accessed 3 August 2023; for the counter-argument see ‘Op-Ed: “Poland’s Withdrawal from the ‘Community of Law’ Is No Withdrawal from the EU” by René Repasi’ (EU Law Live, 15 October 2021) <https://eulawlive.com/op-ed-polands-withdrawal-from-the-community-of-law-is-no-withdrawal-from-the-eu-by-rene-repasi/> accessed 3 August 2023.

[24] ‘CJEU: The Disciplinary Chamber of the Polish Supreme Court May Not Conduct Disciplinary Proceedings against Judges – Rule of Law’ <https://ruleoflaw.pl/cjeu-the-disciplinary-chamber-of-the-polish-supreme-court-may-not-conduct-disciplinary-proceedings-against-judges/> accessed 3 August 2023.

[25] Daniel Tilles, ‘Poland Closes Judicial Disciplinary Chamber at Heart of Dispute with EU’ (Notes From Poland, 15 July 2022) <https://notesfrompoland.com/2022/07/15/poland-closes-judicial-disciplinary-chamber-at-heart-of-dispute-with-eu/> accessed 3 August 2023.

[26] Wojciech Sadurski, ‘The Disciplinary Chamber May Go – but the Rotten System will Stay’ [2021] Verfassungsblog <https://verfassungsblog.de/the-disciplinary-chamber-may-go-but-the-rotten-system-will-stay/> accessed 3 August 2023; Pawel Marcisz, ‘A Chamber of Certain Liability: A Story of Latest Reforms in the Polish Supreme Court’ [2022] Verfassungsblog <https://verfassungsblog.de/a-chamber-of-certain-liability/> accessed 3 August 2023.

[27] C-286/12, Commission v Hungary, Judgment of 6 November 2012, ECLI:EU:C:2012:687; Gábor Halmai, ‘The Early Retirement Age of the Hungarian Judges’ (12 June 2017) <https://papers.ssrn.com/abstract=2985219> accessed 3 August 2023.

[28] Flora Garamvolgyi and Jennifer Rankin, ‘Viktor Orbán’s Grip on Hungary’s Courts Threatens Rule of Law, Warns Judge’ The Observer (14 August 2022) <https://www.theguardian.com/world/2022/aug/14/viktor-orban-grip-on-hungary-courts-threatens-rule-of-law-warns-judge> accessed 3 August 2023.

[29] Nóra Chronowski and others, ‘The Hungarian Constitutional Court and the Abusive Constitutionalism’ (Research Center for Social Sciences of the Hungarian Academy of Sciences 2022) Working Paper <https://cadmus.eui.eu/handle/1814/74522> accessed 3 August 2023.

[30] European Commission, ‘2023 Rule of Law Report Country Chapter on the rule of law situation in Hungary’ SWD(2023) 817 final, 5 July 2023 < https://commission.europa.eu/system/files/2023-07/40_1_52623_coun_chap_hungary_en.pdf> accessed 20 November 2023; ‘Rule of Law-Related “Super Milestones” in the Recovery and Resilience Plans of Hungary and Poland | Think Tank | European Parliament’ <https://www.europarl.europa.eu/thinktank/en/document/IPOL_BRI(2023)741581> accessed 3 August 2023.

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About the Author

Dr Oliver Garner is a Maurice Wohl Research Leader in European Rule of Law at the Bingham Centre for the Rule of Law, BIICL. He is also Editor of the Review of Democracy at the CEU Democracy Institute and Managing Editor of the CEU Democracy Institute Working Paper series. Oliver received his Ph.D. and LL.M. degrees from the European University Institute, and a BA in law from the University of Oxford. His research considers constitutionalism, with specific engagement on withdrawal from the EU, differentiation, EU citizenship, and judicial primacy conflicts. He has published in the European Law Review, the Cambridge Yearbook of European Legal Studies, the International Journal of Constitutional Law, and the European Journal of Legal Studies. Oliver contributes to online platforms including Verfassungsblog, the UK Constitutional Law Association Blog, and RevDem. His analysis has appeared in media outlets including Politico, LBC Radio, and GB News. Bingham Centre reports co-authored by Oliver have been cited by Members of Parliament, and he has contributed written and oral evidence to Parliamentary Select Committees working on EU issues. Most recently his oral evidence on retained EU law was directly quoted in the House of Commons European Scrutiny Committee’s inquiry report and informed recommendations presented to the UK Government.

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Citation: Oliver Garner, Bridging Brexit and the Values Crisis: From Constitutional Resistance to Deliberation?, in: TRAFO – Blog for Transregional Research, 26.09.2024, https://doi.org/10.58079/12cpl

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