When the backsliding becomes a breakdown – explaining resistance to the European rule of law standards

The phenomenon of “constitutional borrowings“ is noticeable in the constitutional courts‘ case-law regarding the EU membership. Within the European judicial area there are both courts that can be described as “trendsetters“ and those that relatively often borrow judicial ideas. There is no doubt that the court whose judicial concepts related to the EU law (such as Solange, ultra vires review and constitutional identity) are most often referred to by other national constitutional courts is the German FCC. Nevertheless, although some constitutional courts present at least dubious interpretation of the original concepts developed in the German FCC case-law, the category of abusiveness should be reserved only for qualified misuse of “constitutional borrowings“ to achieve specific (often strictly political) goals. Hence, glaring examples of such abusive constitutional borrowings are the recent “Eurosceptic“ decisions of the captured Constitutional Tribunal.

The paper deals with abusive comparativism – a rule of law practice, whose main feature concentrates on reference to other jurisdictions or legal systems, without analyzing the broader constitutional, historical, or institutional contexts. Such a reference (often described as “whataboutism“) relies on a presumption of legality. The method “abuses“ the basic rules of comparative law and ignores relevant aspects of the legal culture in a given jurisdiction. In this sense, the abusive comparativism might be seen as a legislative and/or judicial “cherry-picking“. The abusive comparativism aims, first of all, at broadening the scope of discretionary legislative powers, and secondly, it allows to undermine the independence of the state (constitutional) institutions.

The paper will deal with the question of the role of the European Court of Human Rights in the protection of the rule of law in times of the 'rule of law crisis' in Poland and certain other countries of the CEE region. In the first part, a brief analysis of the most important standards of the independence of the judiciary developed in the recent ECtHR case law will be presented. Discussed standards will concern both rights of individuals to have their cases heard by an independent tribunal established by law, as well as the fundamental rights of judges. The second part will focus on the problems with the enforcement of ECtHR judgments in the ‘rule of law cases‘. In particular, the resistance against the Court‘s rulings, also with the use of arguments referring to the constitutional identity, will be discussed. The emphasis will be placed primarily on the situation in Poland, although examples from other countries of the CEE region will also be presented.

The landmark judgment of the Court of Justice of the European Union in the so-called “Portuguese judges case“ (C-64/16) marked the EU‘s fresh approach to the Rule of Law crisis in some of its Member States, including Poland, Hungary and Romania. Since then, multiple infringement actions and requests for preliminary ruling have been lodged with the Court — in response to which the highest judicial body in the EU has further refined the meaning and the scope of the Rule of Law. Aiming to preserve the primacy, unity and effectiveness of EU law, the Luxembourg court has simultaneously empowered domestic judiciaries with a set of tools to preserve the Rule of Law at the national level — specifically to deal with threats to judicial independence and impartiality. In contrast, both the subject-matter of cases before the Court, particularly referrals from national courts, and its inability to act promptly in key cases make the said “rescue“ less effective in comparison to initial expectations.

Introduced in 2020, the rule of law conditionality regulation has been hailed by the European Union as a breakthrough achievement in advancing the toolbox of EU mechanisms for protecting its core values. By creating a link between the payout of EU funds to respect for the RoL, the EU sought to effectively protect values by ensuring that governments that disrespect the independence of the judiciary and let corruption run rampant are put under financial pressure. Yet the road to the regulation being used in practice has been less rosy. Following CJEU judgments dismissing Hungarian and Polish challenges to the regulation and elaboration of Commission's guidelines for use of the regulation, the RoL conditionality has encountered an unexpected challenge, the Russian attack on Ukraine and the question whether, and to what extent, should the EU discipline its Member States facing existential challenges.The paper explores the current state of the regulation and prospects for its effective use.

The paper reconstructs how European Union‘s institutions conceptualize deterioration of media freedom in member states as part of the rule of law crisis. Since 2020 the European Commission has been monitoring media freedom as part of annual Rule of Law reports. In rickety democracies, Poland and Hungary, where political and institutional factors make it increasingly difficult for ‘the fourth estate's to perform its role to speak truth to power, EU has also included media freedom in Article 7 procedure and in related resolutions of the European Parliament. The EU Commission has launched one EU law infringement proceeding against Hungary related to media freedom and zero against Poland. At the same time, the European Commission pushed for EU level regulation, seemingly in style of militant democracy-style safeguards for media freedom and pluralism. The paper answers the question to what extent and in what ways this framing has been embedded in European human rights law.