The pro bono fight for the rule of law in the EU

This profile, originally published in German in AufRuhr, provides an overview of the litigation being brought by CEU Democracy Institute Senior Research Fellow Laurent Pech before the Court of Justice of the European Union on expanding standing to challenge Rule of Law issues. AufRuhr is the magazine of the Stiftung Mercator which is providing funding for the CEU DI Rule of Law Clinic.

Frenchman Laurent Pech is concerned about the rule of law in the European Union. With the pro bono network of academics known as “The Good Lobby Profs”, he goes into battle against constitutional breaches in Brussels. In fact, he sees our democracy in danger.

Laurent Pech is meticulously working on his biggest coup yet. The Dean of the UCD Sutherland School of Law in Dublin could set off a shock wave in the European Union. If he and his comrades-in-arms from the Brussels-based academic network The Good Lobby Profs succeed in convincing the Court of of Justice of the EU (CJEU) of their legal views, political mousetraps in Brussels’ highest EU institutions could be more easily exposed and punished in the future.

“It’s about the independence of our courts and thus the preservation of democracy in Europe,” says Pech, 49, dark glasses, willowy, mottled gray. The Good Lobby Profs are his response to autocratic developments in EU states such as Poland or Hungary, where the rule of law is increasingly coming under pressure – while Brussels turns a blind eye for political reasons. The Good Lobby Profs publish legal opinions to trace constitutional breaches and sound the alarm via social media or blogs.

They are particularly linked to the Democracy Institute (DI) of the Central European University (CEU) in Budapest and its new Rule of Law Clinic. With its headquarters in Budapest, the Clinic has symbolic significance “because it operates out of a university that was almost entirely expelled from a country that became the EU’s first autocratic member state – Hungary,” Pech explains.

In practical terms, it is from there that strategic measures will be taken and, if necessary, legal action will be initiated to combat the deterioration of the rule of law in the European judicial area. Judges, prosecutors, lawyers and civil society groups are to be enabled to better defend themselves. Pech explains that he is pinning his hopes on setting a precedent at the CJEU. Such a precedent would allow private organizations or associations to file lawsuits in the public interest against institutions such as the European Commission and the Council of the European Union in the future.

That’s why the Good Lobby Profs raise the case to a matter that concerns every European personally, because it is about the preservation of our democracy. Thus, as members of European society, we would all be directly involved. The big question: Will the CJEU follow this reasoning and recognize public interest as sufficient to be giving legal standing in the future? “We are asking the Court to make constitutional history by granting us standing. It would be an essential change of course since the 1960s,” says Pech.

With the case now pending for about a year, the CJEU is in constant communication with the plaintiffs. That is good news, Pech says. The court could have easily dismissed the case last year. Instead, it is asking for more evidence because it is seriously considering standing. Pech is certain: “There’s quite a bit of panic going on in the commission and the council now.”

When news made the rounds a year ago that the Council and Commission had approved the release of the 35 billion, Pech’s jaw dropped. “This can’t go on,” he wrote to close confidants at The Good Lobby Profs – the network of university professors he had founded two years earlier to defend the rule of law. The experts quickly agreed that it was time to act. The Good Lobby Profs rounded up some 20 professors, judges and lawyers who are now putting in a lot of pro bono work to defend the rule of law in the EU. Pech estimates that between the passage of the Recovery Plan and the end of the two-month appeal period last summer, the group formulated and sent about 3,000 emails to agree on the best possible strategy and meet all the formal requirements.

Everyone is convinced they are doing the right thing. “Our fellow campaigners in this process are so fed up with being led around by the nose by the EU,” says Pech. He would always impress upon his students that it is they who must defend the rule of law in the world against political interests. “What kind of role model would I be if I didn’t act now? If, for instance, the German or French governments don’t defend the independence of the judiciary in the EU, I have to do it,” Pech stresses.

His convictions are based on decades of experience. In the 1990s, when he was still undertaking his PhD, Pech had the privilege of being asked to help with rule of law restoration efforts in a post conflict country. Following the appointment of one of his professors at the University of Aix-Marseille to the Constitutional Court of Bosnia, Pech was invited to work as a legal assistant at the Court having previously worked at the Office of High Representative in Sarajevo.

It was then that he internalized the importance of a constitution and the responsibility of the judiciary to defend it against all interests. He was by no means born with this passion. His parents had worked as bank employees in their hometown near Narbonne. There was never any talk of law at home. His father regularly took his son to his favorite café. To relieve the boredom among all the old men there, little Laurent would always grab the daily newspaper “Le Monde. Soon he was known throughout the town as the kid who reads “Le Monde.” As a result, he developed an early awareness of problems and conflicts in the world.

Years later, Pech had become the first member of the family to enroll in a university and, after a period of orientation, landed rather cluelessly in a law class. “The professor gave us a very vivid description of the pacifying power of constitutional law and how it can resolve social conflicts.” The closeness to life fascinated the young student. The subject provided solutions to the problems Pech had read about in the newspaper as a child.

Pech studied at the University of Aix-Marseille and in Limerick, Ireland, combining law with political science. After graduation, he was drawn to the University of Wisconsin-Madison for a year. This was later followed by a master of laws and doctorate in France. He worked in Montreal and in New York, headed the law faculty at Middlesex University London for ten years, was involved in non-governmental organizations for human rights, and has been on the editorial board of the “Hague Journal on the Rule of Law.” He has been researching and teaching at University College Dublin since October 2022.

At the European Court of Human Rights, Pech recently intervened as a third party in the case of suspended Polish judge Igor Tuleya, who is one of the most widely known critics of Polish legal “reforms”. The Court found the Disciplinary Chamber of the Supreme Court in Poland not to be a lawful court in violation of the European Convention on Human Rights. Another stage victory for justice, says Pech.

So is a July ruling by the ECJ: EU institutions will no longer be allowed to argue that legal opinions are fundamentally confidential because they relate to politically controversial or, in their view, particularly sensitive matters. Pech had sued for access to an expert opinion and thus won against the position of 26 EU states – except Sweden.

The most important victory is now to follow soon. To support their eight lawsuits, the judges’ associations and the Good Lobby Profs have taken inspiration from the climate movement. They argue that the rule of law is like an ecosystem in which changes have immediate consequences for each individual. According to them, each person is personally affected when the rule of law breaks down, which would justify standing before the CJEU. “The judges guard this ecosystem. If you remove them, you destroy the ecosystem. And then our democracy is also lost,” says Laurent Pech.

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