Re-establishing the Epistemological Foundations of EU Law: In Conversation with Renáta Uitz

Oliver Garner interviews Renáta Uitz on the distinct but interconnected roles of the European Parliament and the Court of Justice in combatting the Rule of Law crisis. “Deliberative democracy has more to it than participation. If it doesn’t come with an accountability component, then that deliberation is inconsequential both politically and in legal terms.”

Renáta Uitz is Co-Director of the CEU Democracy Institute and Co-Editor-in-Chief of RevDem. In addition to these roles, she is a Professor in the CEU Department of Legal Studies, a Co-Principal Investigator in the Volkswagen Stiftung Research Network “Towards Illiberal Constitutionalism in East Central Europe: Historical Analysis and Comparative and Transnational Perspectives”, and Co-Principal Investigator of the Jean Monnet Network on Brexit Research and Interchange on Differentiated Governance in Europe (BRIDGE Network).

Oliver Garner: On 27 January, the BRIDGE network held a conference on “The Rule of Law Crisis and the Future of EU Governance.” On the 13 May, there was the event  ”The Rule of Law Crisis and the Supremacy of EU Law”  in Luxembourg. In the meantime, we have seen Russia’s invasion of Ukraine, the re-election of Viktor Orbán in Hungary, and his subsequent resistance to EU energy sanctions plans.

To focus on the topic of primacy of EU law and the Court of Justice of the EU: In a RevDem podcast in March Ana Bobić, a référendaire at the Court of Justice, argued that the primacy of EU law is only affected by the Rule of Law crisis “by extension”. Would you agree with her position that if any of the attacks on the Rule of Law did not focus on primacy at all, we would still have the same Rule of Law crisis, or do you think instead that resistance to the idea of a supreme authority beyond the nation states, such as the Court of Justice and other EU institutions, is a core tenet of the Polish and Hungarian government projects?

Renáta Uitz: I certainly think that the Rule of Law crisis forced the EU institutions and the Member States to rethink basic premises of how the EU legal order works. What I think is most important about recent attacks on primacy is that it is not simply driven by courts, like for example the German Constitutional Court.

Attacks on primacy now also entered into a highly political role, where Prime Ministers and MEPs start to discuss in very heated terms the very basic premises of EU law.

This created a space for the Court of Justice to actually restate foundational questions about what makes the EU legal order work and what its position is vis-à-vis Member States and national courts within this space.

I doubt that it was calculated by the illiberal Member States that their Rule of Law shenanigans would lead to this point. However, I would argue that this is to do with the deferential approach of the Commission. Its lack of willingness to engage, and the endless dialogue in which political and legal elements merge, led the Rule of Law crisis to finally touch upon such basic premises as primacy and the role of the Court of Justice within the EU legal order. It might be by extension that we got here, but now it definitely falls on the Court to sort out some of the basics. And I think that the Court is doing a brilliant job.

We have seen that the Court has become a lead player in addressing the reforms to the judiciary that have been happening, especially in Poland, through its judgments on Article 19 of the Treaty on European Union (TEU) on effective legal protection. On this topic of the interplay between political will and judicial action, Kaarlo Tuori in his book European Constitutionalism from 2015 argued that the Court of Justice’s “juridical constitutionalism” in the 1960s and 1970s on internal market norms was driven by the necessity to fill the vacuum caused by the “Empty Seat Crisis”, when President de Gaulle of France was not turning up to the EU institutions. Do you think that the Court has been similarly prompted by political inertia, as you mentioned in the Commission, but also the Council, during this crisis?

I certainly think that there is a very solid basis to read the jurisprudence of the Court in the last decade in these terms. I am not privy to what [Court of Justice] President Lenaerts is thinking, but I do believe that the Court also looked at the changes and followed very carefully how the application of Article 7 TEU unfolded. Article 7 TEU was meant to be a preventive mechanism and very little prevention has been done. In the early years, when prevention was the name of the game, the Court spent a fair bit of time trying to point out the risks to judicial independence. The Court was also very careful to talk about the chilling effect of particular national state measures on political participatory rights, and it was only very recently after a fairly long waiting period that the Court started to confirm the constitutional significant of pre-commitment to the obligations in the founding Treaties.

The Court is starting to become extremely proactive in forcing governments, especially in Hungary and Poland, to give the true reasons for justifying particular legal measures, especially restrictions on the basic fundamental freedoms under the Treaties.

It is forcing the terms of constitutional dialogue to be honest and in the form of reasoned debate. My argument for the BRIDGE event on “The Rule of Law Crisis and the Supremacy of EU Law” is that the Court is essentially re-establishing the epistemological foundations of European constitutional order. It is making a very important contribution to hold all players – including the EU institutions as well as the Member States – to the premises of the Article 2 TEU values. Because, ultimately, the EU does not work if its members are not functional constitutional democracies.

You have mentioned the role of the Court not only in relation to the Rule of Law and other democratic principles in the Member States, but also in relation to the EU institutions. A follow-up question concerns the European Parliament. The Parliament can probably be distinguished from the Commission and the Council because of the fact that it has been very active in its response to the Rule of Law crisis. We have seen, for example, that the budget conditionality regulation originated as proposals in the Parliament in 2018. So how do you see the relationship between the European Parliament and the Court of Justice in addressing the crisis?

I believe that, when we are talking about the epistemological foundations of the constitutional order, the European parliament has a very important role and it may even have inspired the rather long Budget Conditionality Judgment of the Court of Justice. The parliament throughout the crisis has been exemplary in trying to put together the bits and pieces of the legal record: a judgment here, a Venice Commission opinion there.

The European Parliament built a story that was able to narrate in a compelling manner what was at stake in the Rule of Law crisis, and how seemingly unrelated matters actually resulted in undermining the founding values of the European Union.

This narrating function of the parliament is crucial. It was LIBE [the Committee on Civil Liberties, Justice and Home Affairs] and various MEPs who were doing particular reports. They were trying to explain the Rule of Law crisis, including both the role of the institutions and the shenanigans of the Member States, in terms that became reportable by the press for a broader European audience. Frankly, I think that this is possible because you have a new generation of MEPs, especially from these illiberal Member States, who come from the opposition side of politics domestically. Especially in the case of Hungary, opposition rights are extremely curtailed and it falls upon the MEPs to make up for the deficiencies of parliamentary scrutiny functions and inquiry functions on the national level using the procedures of the European Parliament. So I definitely see the Court and Parliament as complimentary. The Court is creating the legal foundation but the parliament has an extremely important storytelling and coherence-building function here.

I find it fascinating to think of this idea of resolutions and proposals as a form of narration. In addition to the direct democratic legitimacy of elections, it is, I suppose, an advantage that the European Parliament has the freedom to act proactively rather than being tied to reacting to infringements being brought as the Court is. It will be very interesting to track how that relationship progresses and if we perhaps will see challenges to the budget conditionality regulation.

You mentioned in an answer, a few questions ago, that you are not privy to the internal workings of the Court of Justice and President Lenaerts. But we have been fortunate enough to hear speeches by President Lenaerts both at the RECONNECT Final Conference last month, and also at the European Central Bank. In these speeches, the President discussed the Budget Conditionality Regulation judgment from February. He outlined in more depth the position that the values found in Article 2 TEU constitute the “identity” of the EU as the Court stated in its dicta. He stated further that this identity cannot be overridden by constitutional identity claims formulated by Member States. These values in Article 2 TEU are so broadly formulated, and could arguably be regarded as deriving from the constitutional orders of the Member States, when it comes to things like dignity and democracy. Do you think the claim that these values are the constitutional identity of the Union, and should be regulated by the Court, could be portrayed as a Kompetenz-Kompetenz expansion? And do you think this could maybe intensify supremacy clashes in the future?

I am not going to do more than to direct everyone’s full attention to a provocative article from a few years ago by Federico Fabbrino and Andás Sajó because I share their concerns about national constitutional identity and they discuss how these sovereignty claims play out.

But I also believe that what the Court of Justice has been doing recently is not expanding its role, but claiming the territory of a court involved in the middle of the Rule of Law crisis, on the fringes of the Rule of Law crisis, if you wish. I would not talk about expansion. In terms of whether the clashes intensify, a lot depends on how national courts react. I think that, especially in the ECB conference, President Lenaerts’ speech about proportionality was enlightening with regard to the role of the Court, and, of course, national legislators and national courts, in proportionality analysis.

 My major concern is that the more we expect a sovereignty and supremacy clash on the EU level, scholars especially will be likely to narrate national constitutional court judgments in terms of the opportunity that this national constitutional court could have made a strong identity or sovereignty claim and they didn’t do that.

I would warn against doing that because, if we scholars tell the story or interaction between the Court of Justice and the national constitutional courts in terms of “this constitutional court again did not use the opportunity to invoke national constitutional identity”, we will actually undermine the efforts of the Court of Justice to solidify and consolidate the EU legal order and to re-state its premises in terms of Article 2 TEU values.

I can see a risk in the picture you painted there of as almost congratulating constitutional court judgments if they do not override the supremacy of EU law. I can see a comparison here to the political veto power that is being exercised, or at least threatened, as we discussed at the start, by Victor Orbán on energy sanctions and as we have seen throughout European integration. So indeed perhaps the risk of expanding the idea of national constitution identity is that we make constitutional courts another veto player rather than a dialogic partner.

I think the fear really is that if you go down this path, the mark of good EU citizenship will be not vetoing political action and not questioning the primacy of EU law when it comes to legal conflict – it is simply not standing in the way of further integration. But, ultimately, when not vetoing measures is the new mark of co-operation that is going to undermine the operation of the single market.

On the topic of further integration, a further important event we have seen in the last weeks has been the conclusion of the Conference on the Future of Europe. The proposals formulated by the Citizens’ Panel on Values, Rights, Rule of Law, and Security advocate for an annual Rule of Law conference with citizen participation. They also make further proposals for the universal applicability of the Charter of Fundamental Rights, and they argue for the consideration of extension of the Budget Conditionality Regulation to new areas, regardless of their relevance for the EU budget. Do you think that such proposals would help address the crisis? And, finally, might the focus on deliberative democratic mechanisms, such as Rule of Law conferences, side-line or compliment the role of the Court of Justice?

Deliberative democratic mechanisms work in the political sphere and the Court of Justice’s primary job is within the legal order of the European Union. The reason I am not too enthusiastic about further  annual peer to peer navel-gazing under the label of the Rule of Law is very much summed up in the report which Laurent Pech and Petra Bárd did for the European Parliament on the annual review mechanism. My problem is not that this treats good Member States and bad Member States on a par with each other but rather the use of euphemistic language really risks undermining the whole point of the exercise, which is safeguarding the Union’s founding values from the types of Member State acts and actions that put the Union as a whole on a slippery slope of democratic and Rule of Law backsliding.To do this exercise on the largest scale in a participatory manner is not going to help anyone, including civil society organizations that are advocating holding Member States accountable for violating the founding values. Quite the opposite. They risk sliding even further into irrelevance. Compared to that, just having an annual gathering and a really nice party where people are comparing notes over good food is already a good outcome, but probably this is this is not the best way of creating deliberative democratic mechanisms in the EU. I mean, after all, deliberative democracy has more to it than participation. If it doesn’t come with an accountability component, then deliberation is inconsequential both politically and in legal terms.

The recommendations from the Conference on the Future of Europe presented to the European Parliament also did allude to the possibility of treaty reform to further bolster the EU’s Rule of Law toolkit. So perhaps if the European parliament gets its way, and we have a treaty revision under article 48 TEU, that could be a chance to consider from first principles how to address values and Rule of Law backsliding.

This transcript has been edited for length and clarity

In collaboration with Alexander Lazović

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