The paper presentation, CJEU on Democratic Backsliding in Poland and Hungary, is part of the ACELG series.
In times of raising populist tendencies, courts might appear as the key institution guaranteeing counter-majoritarian checks and balances. Democratic values being also embedded in the EU Treaties and required during the accession procedure, one could also expect the Court of Justice of the EU (CJEU) to pull the break on the democratic backsliding in the EU Member States. However, in the case of limitations to judicial independence, however, freedom of press and freedom of association in Poland and Hungary taking place since 2011, the CJEU has played a marginal role. This paper identifies factors that have shaped this very narrow exercise of the Court’s authority in this context based on the assessment of the de jure and de facto authority of the CJEU as well as the involved compliance communities (EU institutions, national judges, civil society).
In the infringements proceedings against Hungary, the Commission has been deploying strategies previously tested in the context of establishment of internal market and has referred specific technical violations of secondary EU law to the CJEU. The Court has condemned Hungary for violating the principle of non-discrimination on the basis of age, because of a difference in retirement age between constitutional and ordinary judges. However, the Court has not addressed the attempt at packing the Hungarian Constitutional Court through these measures. Similarly, Hungarian government has been condemned for violation of the data protection directive when carrying out a political capture of an independent institution by dismissing the data protection ombudsperson. The current infringement procedure regarding the “Lex CEU” is based on potential violations of market freedoms.
A similar trend of technical procedures for infringement of EU secondary legislation is emerging in the case-law concerning Poland. The CJEU has issued interim measures in an infringement action based on violation on the directives about environment and protection of rare birds. For the first time in history, the Court has threatened to impose financial sanctions on Poland for non-compliance with the interim measures, which might suggest a possible spiral-up effect of this particular case. Currently ongoing infringement procedures regarding judicial reform in Poland are based on the principle of non-discrimination on the basis of age.
The comparative analysis of the cases concerning Hungary and Poland shows that this approach might work differently depending on whether the rule-of-law violations are predominantly procedural or substantial. While the procedural violations of the Polish authorities, might lead to setting off a spiral of condemnations, unfolding from a technical specific on to a broader non-compliance problem, the predominantly substantial violations of the Hungarian authorities seemed to remain immune to the narrowly framed infringement proceedings.
A contextual analysis of the legal cases before the bench in Luxembourg is necessary in order to uncover their political sensitivity and frame them in terms of judicial strategy of authority building and resistance mitigation. The CJEU deploys a range of particular legal norms that have been well-established in its market case-law, but seems to ignore the “elephant in the room”, which could be the democratic values of art.2 TEU. The relationship with the particular compliance constituencies at regional and national level appears to play a crucial role in explaining the CJEU’s approach of narrow authority. It yields, however, little promise for an active judicial role in defense of legal certainty.
Dr Pola Cebulak is assistant professor in European Law at the University of Amsterdam, European Studies faculty.
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