The Rule of Law – A Courtroom Drama: A conversation with Laurent Pech

Our editor Oliver Garner discusses with Laurent Pech the ongoing tensions between Poland and the Court of Justice of the EU.

You can listen to the podcast or the edited transcript below.

Oliver Garner: The topic of our conversation today will be the Court of Justice of the European Union and the ongoing rule of law crisis in Poland. Our guest today is Professor Laurent Pech, who is the Head of the Law Department at Middlesex University, London. Laurent is also a Principal Investigator on the Horizon 2020 project RECONNECT, which seeks to reconcile EU citizens with Europe through law and democracy, and he is a Senior Research Fellow in the Rule of Law work group of the CEU democracy Institute. 

This summer has seen many dramatic developments between the EU and Poland taking place within the courtroom. Could you summarise the current state of play for our listeners following the recent judgments of both the Polish Constitutional Tribunal and the Court of Justice of the European Union? And do you have any thoughts on what the next steps might be in this saga? 

Laurent Pech: It’s a very good question and not an easy one to start with. It’s actually very difficult to summarise the state of play – the other day I was trying to calculate the number of legal actions now pending before the Court of Justice and the European Court of Human Rights, and I came up with a total of more than 80 legal actions. I would say a quarter of them have been decided to date, so there is more in the pipeline. What’s new in the past few months is that the European Court of Human Rights has stepped into the fray. And we already have three judgments finding the Constitutional Tribunal of Poland to be unlawfully composed. 

Also, a violation of the ECHR was found regarding the purge of ordinary courts presidents and vice-presidents undertaken in 2016-2017, and most recently the Disciplinary Chamber was also found to be not a tribunal established by law by the European Court of Human Rights. Potentially, in the same judgment, between the lines you could argue that the European Court of Human Rights indicated that all of the individuals appointed or promoted by the new national judicial council are not lawful judges, to put it informally. The Court of Justice has been very busy itself – most recently we have this order of the Court of Justice again about the Disciplinary Chamber, but also the Polish Supreme Court. There was an order suspending for the second time this bogus puppet chamber, but in the same order another fake chamber created by the current ruling party – the extraordinary chamber, to give it a short name – has also been suspended in part. Then the following day, in a judgment on the merits, the new disciplinary regime for judges was found completely in breach of EU rule of law standards.

So it has been very busy, and obviously the Polish authorities did not like what they saw. They got their unlawfully composed Constitutional Tribunal of Poland – or should I say so-called Constitutional Tribunal because it’s not completely a lawful body, and was described as a puppet by the former German President of the Federal Constitutional Court – to decide in the short term that the orders of the Court of Justice have no legal validity in Poland. They actually did the same, and people have not noticed, in relation to the European Court of Human Rights judgment regarding the unlawfully composed Constitutional Tribunal itself. 

So it’s a bit complicated to follow. Even I’m kind of struggling to keep up with the developments, and this is my full-time research. And now we are waiting for the ‘Polexit number 2’ decision by this unlawfully composed Constitutional Tribunal. This time the Polish government has essentially asked this body to give it permission to not comply with judgments on the merits of the European Court of Justice. 

But Polexit has already started, informally, because since last July orders of the Court of Justice regarding judicial independence matters have no validity according to this puppet body, which obviously has no legal validity for anyone who is familiar with EU and ECHR law and who is also respectful of what the Polish Constitution actually says. 

Oliver Garner: So, it seems we are facing a worsening situation with each judgment, and you mentioned there about the unlawful composition of the Constitutional Tribunal, and also how these decisions on EU law being invalid are regarded to be determined by the governing parties capture of the judiciary and their political opposition to the EU. 

However, in 2005, before the Law and Justice party came to power, the Tribunal as it was then ruled in the case on the Accession Treaty that EU law could not claim supremacy over the Polish Constitution. So do you think there can be any juridical justification for the Tribunal’s judgment beyond the politics of backsliding? Is there a situation where such a judgment could be justified?

Laurent Pech: What the Polish Constitutional Tribunal did when it was a lawful body was not unusual. Plenty of a national constitutional courts have recognised theoretically the primacy of their own constitution over EU law. This is nothing new. So as a matter of fact, when this happens you have two options. Either you get EU law amended, but that doesn’t happen in practice, or you just revise your constitution. If you don’t like it, you can always trigger Article 50 TEU. 

What’s happening in Poland, however, has nothing to do with the primacy of the constitution because the Polish Constitution is being violated on a day-to-day basis 

This is just a pretext, so what are they trying to achieve? They’re trying to achieve a veneer of legality to justify the ongoing violations of EU law, the ECHR, and the Polish constitutional rule of law standards all in the name, essentially, of destroying judicial independence and creating a de facto one state party – the same kind we have seen emerging and consolidated in Hungary. 

Oliver Garner: That is interesting, as we can see the distinction from judgments like the PSPP judgment in Germany, because of the fact that was in compliance internally with the constitution. 

Along with our RevDem Rule of Law Head of Section Dimitry Kochenov you are publishing a case book on the recent case-law of the CJEU and the matters that we have been discussing. You argue in that case book that judgments in recent years have made the values in Article 2 of the Treaty on European Union justiciable by the court. Do you see any potential adverse, unintended consequences of this development, maybe particularly for the balance between the EU and Member State legal orders, if this is continued beyond the current context of the values crisis?

Laurent Pech: Very interesting question. Again, not an easy one to answer quickly. Now what’s happening, essentially at least as far as the rule of law is concerned, is that Article 2 is becoming more justiciable through other treaty provisions. It’s not actually that Article 2 is directly relied upon by the court, but that the Court is using other treaty provisions to give concrete meaning to the values laid down in Article 2 TEU. I think this is happening now because of what’s happening in a number of EU Member States where national authorities are actively and deliberately undermining compliance and respect for these values. So it’s not simply happening in relation to rule of law, it’s interestingly also happening in relation to democracy as a value as well, which is being enforced through other treaty provisions, to put it shortly. But I think it’s only happening now because of the new challenge, not to call it a new threat, to the fundamental principles underlying the EU legal order.

For the first time in the history of the EU, we have at least one Member State which is no longer a democracy, and we have another one on the way to becoming an authoritarian Member State. 

So this is obviously a new threat, and new case-law because new questions are being asked actually by national judges themselves. And also new questions are being brought to the attention of the Court by the Commission. 

Oliver Garner: Now you mentioned there about the Treaty provisions being used to give effect to the values in Article 2, and you discuss quite extensively in the casebook about how the CJEU has predominantly been concerned with judicial independence using the hook of Article 19 TEU. You talk about how this may be to the detriment of other crucial elements of the rule of law, so bearing that in mind, do you think it could be the case that the Court of Justice is not seeking explicitly to operationalise Article 2 values through its case-law on Article 19? Instead, could the Court simply be concerned with its traditional narrower function of ensuring EU law is applied in the Member States through guaranteeing independent and therefore receptive national courts?

Laurent Pech: I think the CJEU takes each case at a time, obviously aware of the broader challenges faced by the EU, and in this instance, national judges. So national judges are asking questions of the CJEU and the CJEU has to answer them because new questions have been asked. This started with the Portuguese Association of judges asking new questions about judicial independence that the Court was in a way forced to answer, as to what extent EU law protects judicial independence. That being said, even though the CJEU tends to take one case at a time, you can see also the evolution of the case-law. So, there is some sort of transversal trajectory, but the CJEU can to a large extent only answer questions it gets from either the national judges from the preliminary ruling procedure, or from the Commission through infringement actions. And I think the national judges are adjusting the questions based on the evolution of the cases. 

So, you have a kind of feedback loop and then you can see, for instance, after the Portuguese judges asked questions about judicial independence, you had Polish judges adding new, more specific questions. More recently, Romanian judges have been asking a lot of questions also  about to what extent they can rely directly on Article 19, especially in the context where the national constitutional court is failing to comply with its EU obligations. 

So I think it’s both a case-by-case evolution of the case-law, but there is also, I think, an understanding, an awareness, within the court, about the current and present danger that the EU legal order is facing, especially regarding the situation in Poland.

Oliver Garner: Perhaps following up on that, in the recent Repubblika judgment, the CJEU elaborated what has been called a principle of non-regression from values after accession to the EU. Do you think that might show that the CJEU is expanding beyond a focus on judicial independence? And do you think there’s any possibility that the court could even use the definition that has been provided of the rule of law and characteristics in the recent Regulation on budget conditionality as a means of ensuring there isn’t regression from each of these characteristics in the future?

Laurent Pech: Another very thoughtful question. First of all, the definition to be found in the Rule of Law conditionality Regulation is actually just a qualification of the case-law of the CJEU, which in itself reflects to a large extent the case-law of the European Court of Human Rights. So the definition is nothing new, it’s just the first time you have a pretty detailed definition in an instrument of secondary legislation. 

I have to go back to the non-regression principle, which in itself is not new, and has been used in different fields of law. What is new is that it has been used to protect judicial independence, but again I would say this is not revolutionary. If you look at Article 49 TEU, the accession provision of the Treaty on European Union, then it does make it crystal clear that if you want to join the EU, you have to show not only compliance with the values laid down in other provisions of the TEU, such as the rule law, but you also have to commit yourself to promoting them internally and externally. 

So, this non-regression principle is just a logical evolution of the case-law, again, to address the new challenge. You didn’t need to rely on this non-regression principle until now, because until now you didn’t have a member state actively trying to undermine the undertakings they agreed to comply with at the time of their accession. In fact, if you look at the start of the accession process of Hungary and Poland, it was explicitly demanded of them that they comply with primacy of EU law in constitutional provisions, and obviously full compliance with a value such as the rule of law. Now, what is interesting is to see is if this non-regression principle might one day be used by the Commission in an infringement action. That’s what I’d like to see because, for the time being, we know that you can use a non-regression principle against a Member State, but it has not actually been used. And we have yet to see the core finding of violation of this non-regression principle. 

For me, there is a very easy case where this non-regression principle could be used against Poland. 

I would like to see the Commission relying upon this principle of non-regression in relation to the new national council of the judiciary, which was re-established in violation of the constitution and, I would submit, in open violation of this non-regression principle.

I would say the same regarding all of the changes actually made to the judiciary by the Polish authorities, which are not only simply incompatible with EU membership, but also in breach of the Polish constitution. I would say that the non-regression principle could be used in this context, so let’s hope that the Commission will soon use this new principle. It’s kind of an additional principle, which can be used to at least contain rule of law backsliding. For the time being, we only know that it can be used, but it is yet to be used.  

Oliver Garner: That’s very interesting for our listeners to hear how there has been a dynamic response by the CJEU, and probably further scope to broaden that principle.

Laurent Pech: Interestingly enough, the first time the non-regression principle was brought to the attention of the court (if I remember well, but the listeners can correct me if I’m wrong, they can send me an angry email) I think EFTA (European Free Trade Association) lawyers actually referred to these principles of non-regression and suggested to the CJEU that it should make use of it in the context of a Polish case. So, it’s quite interesting that there was, in a way, a non-EU act to bring it to the court’s attention. This principle of non-regression can also be found in plenty of other instruments, such as the new EU-UK agreement, where there are a couple of non-regression clauses. So, let’s hope that the Commission is going to start relying on this principle in forthcoming infringement actions.

Oliver Garner: Well, maybe we’re seeing a new practice of external judicial dialogue. So you mentioned there the new EU-UK relationship and I have a question for you, looking away from the courtroom battles, and looking at whether there can be a form of political resolution to the crisis. Christophe Hillion has argued, and it was perceived quite controversially at the time, that the conduct of the Polish government could be construed as a constructive notification of intention to withdraw under Article 50 TEU, the clause the UK used to withdraw from the EU.

So, in the context of what has been called legal Polexit, do you think the EU institutions could engage in a strategy of brinkmanship of trying to encourage the Polish government to make a decision in accordance with its constitution requirements whether to remain or leave? Or do you think that this would be a move that intrudes upon the sovereignty of the Member State?

Laurent Pech: I very much enjoyed reading the post by Christophe Hillion. Yes, I remember the reaction he created, it was very interesting. I thought that plenty of food for thought was offered by the post. 

My personal position, when it comes to the withdrawal of a Member State from the EU in the context of rule of law backsliding, is that you shouldn’t punish a population for the actions of the current ruling party, it would just be disproportionate.

What you can do, and what can be done more easily without going through these existential constitutional questions, is that you can contain the situation through infringement actions and the Article 7 TEU process. So I don’t think there is a need, in fact, to discuss Article 50. I mean, I understand the intellectual need, but I don’t think it is needed to solve the situation. 

However, we have to face the sad reality that we have two EU Member States, one which is no longer a democracy, and Poland which is not yet there, but soon enough will be there. But in the case of Poland, you could say it’s actually worse when it comes to the destruction of judicial independence, and they’ve gone further than even Orbán has gone. I would say that Poland, to paraphrase Advocate-General Bobek, should be considered a legal black hole. I’ve used the expression of being ‘in default’ from the financial world – from my point of view, Poland is now in a situation of being in rule of law default. Lawlessness is the norm and no longer the exception. We have a situation where systematically EU and ECHR rule of law standards are being violated.

So, the entire system has been corrupted, raising some serious questions about the continuing existence of mutual trust mechanisms regarding Poland. For instance, I’m thinking here about the European Arrest Warrants – I would say this is an area where the CJEU has not adjusted its case law sufficiently in my view.

There are no easy answers. That being said, we have to face the sad reality that, at least in the case of Poland, to comply with the EU rule of law requirements, if you are a Polish judge, means you can be subject to disciplinary and potentially criminal proceedings. 

In 2021, in the EU, can you imagine that a judge can be punished for applying EU rule of law requirements? This is very serious. We are facing a de facto legal Polexit. I mean, it is even formal to some extent, but it’s kind of an insidious creeping process.

We have a ‘Polexit number two’ motion pending before this unlawfully composed tribunal, but I think people have forgotten that there is a further fourth motion also pending essentially asking a similar Polexit related question. But I would say no, there’s no need really to entertain an Article 50 related question. Formally speaking, it would be very difficult to make the argument that it has been de facto activated by the Polish authorities for systemic violation of the EU Treaty. We have Article 7 to deal with this situation, even though Article 7 is obviously not and has never been as efficient as it could have been. But then, if you want to know more about Article 7, you can ask me another question. 

Oliver Garner: Quickly following up on that question – I suppose the answer may be already evident, but I assume Poland and Hungary haven’t looked at the new EU-UK Trade and Cooperation Agreement and thought that perhaps could be a more desirable model? Even just thinking now, I suppose there are actually still very strict requirements between the EU and the UK to uphold standards on the rule of law and human rights. So, do you think there’s any scope for Poland and Hungary to decide if this is a more ideal relationship?

Laurent Pech: If you’re asking me from the point of view of the current governments of Hungary and Poland, I guess I would be speaking beyond my area of expertise. 

From what I have read it would be almost political suicide for these two governments to even start talking about withdrawing from the EU, even though we can hear an increasing number of voices, including the Orbán government, raising questions about potential gains of exit.

But there is a question to what extent they are serious or just using this as kind of a short-term blackmail tactic to get access to EU funding. I think it’s just a short-term tactical move. They just want to scare Brussels into giving them access to the recovery fund.

They’re not serious about withdrawing from the EU. Why would you withdraw from the EU? 

If I were a dictator, I would want to set up a dictatorship in the EU because then you get paid for it. 

So, no, I think it’s an ideal world currently to be in the EU and set up an authoritarian system because once you’re in the system, it’s very difficult to actually kick you out.

It’s impossible to get you out unless you activate Article 50 yourself. Plus you get paid, you can derive a lot of EU funding with very minimal accountability mechanisms in place. I mean, we have the EPPO now, but as you know, Hungary and Poland are outside the jurisdiction of this new European Public Prosecutor’s Office, and when the Commission is missing in action, essentially you have no one else left to hold you accountable while you’re destroying democracy and the rule of law. So, actually, the EU is a very comfortable place to be in for an autocrat. 

Oliver Garner: On that topic of being paid for establishing autocracy, do you think we’re seeing the same problems with inactivity from the Commission in relation to the new Regulation on budget conditionality in terms of not triggering this? I suppose one could say this should be the tool that can be used to prevent that incentive that you have discussed.

Laurent Pech: Yes, this is the question about the rule of law toolbox. 

I think the issue has never been really the toolbox, but rather, the workman or workwoman using or not wishing to use the toolbox.

I think a lot more could have been done through infringement actions. I’m a big fan of infringement actions and application of interim measures. The problem is, as far as I’m concerned, that the Commission is not doing enough on the infringement actions and not reacting quickly enough in situations where judgments and orders of the CJEU are openly violated, which is the case in Poland [this conversation was recorded on 3 September 2021, before the Commission request for financial penalties against Poland for non-compliance with CJEU judgments on 7 September].

For instance, there are many also judgments in Hungary which have not been complied with. Interestingly enough, Hungary is the number one EU Member State for non-compliance with leading judgments of the European Court of Human Rights, which I think is about 80%.

So, when you don’t comply with EU law, then you’re not going to comply with other international legal obligations. But to go back to the rule of law conditionality Regulation as the latest addition to the toolbox, I think it can be helpful, especially as far as Hungary is concerned, due to widespread state-sponsored corruption.

This is why I think the Hungarian government, but also the Polish government, decide to bring actions directed against this Regulation before the CJEU. 

Now, from my point of view, the European Council and the Commission are both violating the EU treaties by delaying. 

Essentially, we have this new conditionality Regulation technically in force since the 1 January 2021, but there was a political argument not to apply it until after a judgment of the CJEU is issued and guidelines are drafted. Technically regulations cannot be de facto suspended, but that is actually the case. So the Commission is just doing the European Council’s bidding. So for me, this is a breach of the EU treaties, but the European Parliament is not happy with this, and it is threatening to sue the Commission before the CJEU to complicate the picture. I think that the Parliament is right to be angry, but to a large extent, the Commission felt that it had no choice but to comply with the instructions of the masters of the treaty. So, what we are likely to see is that the rule of law conditionality Regulation will be activated next year after the judgment of the CJEU is adopted, most likely by the end of the year or early next year.

Once activated, I would say we’re possibly going to need at least another 10 or 12 months before we see measures being proposed by the Commission, and then they have to be adopted by the Council. That’s why Orbán and Kaczyński are quite delighted with the de facto suspension of this regulation, because by the time they might be faced with financial sanctions, they may have been re-elected in the meantime, and then obviously they’ll have received plenty of funding. 

Oliver Garner: So we have a multifaceted legal drama with lots of players and characters on the stage, and plenty to keep our eye on. But I thought for our final question, we might look ahead into the future. All these developments that we’ve been discussing in relation to Poland and Hungary in the last decade show how we now have a clear case study of how new Member States in the European Union can regress away from the values of the EU following accession. So, what can be done by both current candidate states and the EU institutions, and the Member States, to try to prevent a similar situation occurring if and when the Balkan states accede? I wonder if there’s a way of somehow joining up the legal means of enforcing values and the political vacuum.

Laurent Pech: Yes, another very good question. Just on a personal note, I used to work as a consultant for the EU Commission in pre-enlargement countries. I worked in Latvia, Bulgaria and Romania. I also did a bit of work in the Balkans, but it was in a non-enlargement context. But then, why do I mention this? Because then you made me realize that there is quite often a huge difference between the law on the books and the law in the real world. And the problem, I think, with the EU enlargement approach when it comes to the rule of law is that they have a very formalistic approach. I understand it’s the easiest way to assess – you look at the changes made to the law-books and then, if it looks impeccable in the books,  you say “wow, that job is done, they are rule of law compliant.” So I think we need to look beyond the books and you need to look at the application. But, to be fair to the Commission, they have already adjusted their approach, when it comes to the rule of law, democracy and human rights chapters of the EU, and that was changed in 2014. 

Possibly the main issue is not the approach, but to what extent the Commission itself is captured in this process. Let me actually give you a non-enlargement example. The Cooperation and Verification Mechanism (CVM) is kind of a pre-enlargement mechanism, but applied post-membership because the pre-enlargement mechanism didn’t work, obviously, because Romania and Bulgaria were both subject to this mechanism due to persistent rule of law shortcomings.

So that was 2006, and then in force in 2007. We are in 2021. We still have this Cooperation and Verification Mechanism. Has it worked? I would say no, and to make it worse, if you look at the Commission reports in this context, especially in the context of Bulgaria, what is being described is not the situation I’m aware of in practice. So that’s what I meant – this approach is dangerous if the  Commission itself possibly has full discretion over assessing the situation in the country. I think we need to make more formal room for external experts. This process is not easy to achieve, but when it comes to the rule of law the enlargement monitoring and assessment tools are not working for a number of reasons, which are not very easy to summarize very quickly. But, we have learned also that, even if the pre-enlargement scrutiny was done perfectly, even then,  there’s nothing preventing new elected officials from undermining the rule of law post-accession.

I’m afraid that rule of law backsliding is a multifaceted phenomenon, requiring multifaceted answers. There is no magical silver bullet, no magical solution pre-accession. You need strict monitoring before accession. You need continuing monitoring post-accession.

We have this new Rule of Law report post-accession. To some extent it is trying to avoid this gap in the monitoring post-accession, but itself is suffering from a number of shortcomings, which I will explore with Professor Petra Bard in our next study for the European Parliament. It should be finalized by the end of November. So, you can interview me and Professor Bard about it again, and then we’ll tell you. But what needs to be done is to make this new rule of law mechanism a bit more effective. For the time being it’s a good step, but what we need in the short-term is not more monitoring, we need more enforcement. Those would be my final words.

Transcript edited for length and clarity.

In collaboration with Teodora Miljojkovic.


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