Rule of Law backsliding in Poland may be coming to an end following the electoral victory for Donald Tusk. But what are the deeper sources of the EU’s response to this phenomenon? This latest RevDem Rule of Law podcast discusses the doctoral research of Dr. Maciej Krogel. He is a lecturer in European Law at the Faculty of Humanities of the University of Amsterdam. He has recently defended his PhD thesis, titled ‘The Intellectual Sources of the European Union’s Response to the Rule of Law Crisis in the Member States’. He is also an alumnus of the Re:Constitution Fellowship Program.

Oliver Garner: Your Ph.D. traces the intellectual sources of the EU’s response to the Rule of Law crisis in certain Member States. This is a topic that we have covered since the inception of RevDem. Could you summarise your key findings for our listeners and readers?

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Maciej Krogel: Thanks a lot for asking me about it. It is still brand new for me to have graduated from the EUI and I think you are the first person to ask me about my research in an interview. So, indeed, I have written my thesis about the background conditions for the response of the European Union institutions to the Rule of Law crisis in the Member States. A lot has been written about the Rule of Law crisis – about institutions, about judiciaries, and about the problems in the Member States in the recent years. However, I think what was lacking, and what is lacking still, is a critical theory of the origins of what the European Union institutions are doing. We have some very specific critical accounts of, for example, the overly legalistic nature of the response or the democratic credentials of the response. But I have decided to trace the origins of the Rule of Law response of the European Union to its earlier constitutional heritage, as I call it.

What has been lacking most of all, I think, has been situating the Rule of Law reactions, and also scholarship, within the broader constitutional heritage, concepts, ideas, and discussions of the European Union from the past decades.

 For instance, this has been the case on topics such as constitutional pluralism, constitutional change, and membership in the European Union. These were the three main strands that I selected for tracing the origins of the Rule of Law crisis in my thesis.

Based on the history of European integration that you discuss in your thesis do you think that it was simply not envisaged by the Original Six at the time of the founding of the European Union that there could actually be backsliding on values such as the Rule of Law?  Was this a scenario for which the EU was simply not prepared?

In my thesis, I took a broad concept of constitutional discourse, including also policy discourse, theoretical discourse, and what academics have written.

I would say that it was surprising to see that some topics of constitutional law in the European Union – for instance, expulsion – were not so much present in academic discourse before events such as Brexit.  

Only recently there have been intense normative proposals in the literature on what to do with Member States that systemically violate the Rule of Law in the European Union. But I also was very much interested in how the past ideas and discussions somehow conditioned or influenced the very recent response to the Rule of Law predicament. So, for instance, regarding constitutional change, I looked at the discussions concerning the Eurozone crisis and the Pringle case of the Court of Justice. These are very different cases with regard to the objectives and particular circumstances. However, both the Eurozone crisis and the Rule of Law crisis are very similar as regards the judicial strategy in accepting a conditionality mechanism and a bigger material constitutional change in the European Union.

Your thesis abstract refers to normative interventionist EU law scholarship. In recent weeks, we have seen debates over the Court of Justice of the European Union’s decision to find a challenge by a Polish judges association inadmissible. Could interventionist scholarship risk obscuring the doctrinal underpinnings of court judgments in this area?

I am very far from condemning interventionist scholarship, as you call it, even though sometimes I speak about, or I write about, these normative exercises.

So, I think that both the more traditional doctrinal scholarship, or more analytical doctrinal scholarship, and interventionist reactions are needed and have their place.

However, I look at it from a somewhat different perspective. We both were Fellows in the re:constitution programme, and in concluding my fellowship with my working paper that is coming soon I am looking at ‘scholactivism’ in public law. I am looking at it not from the perspective of a question like ‘should scholars restrain themselves’ or ‘how should they decide whether to intervene or not’. I am instead approaching it from the perspective of the conditions of academia today because I think this is a very important factor that determines what scholars decide at the end of the day. So, for instance, perhaps it is the case that commercialization and competition within academia, and the conditions in which we work, make scholars pursue activism and interventionist reactions, and they choose that path to attract funding, to attract attention, and are focused more on urgent needs rather than long run projects.

Absolutely. I would agree with that. Going back to the EU’s response to the Rule of Law crisis, we have seen since the election of the Donald Tusk government that the EU seems to be moving towards concluding the Article 7 TEU values breach monitoring proceedings against Poland. The assumption is that there is no longer a risk to EU values because of the change in rhetoric of the government, but we have not actually seen many concrete legal changes yet. Do you think the closing of the proceedings against Poland would represent a success or a failure of the monitoring mechanism?

 Well, I am not overly optimistic about the changes in Poland so far, and indeed there has been not so much in terms of legislative change.

But I think that, in this specific case of closing the Article 7 proceedings, I am not joining the choir of critics.

When you look carefully at the closure of the procedure, and the reasons given, which are very important from the perspective of the EU legal order, it was the threat to the primacy of EU law posed by the Constitutional Court of Poland, as well as the disciplinary liability for judges putting at great risk the effectiveness of the EU legal order before the Polish courts, that mattered. I think that the threats to primacy and the chilling effect for judges, or lack thereof, are very significant here. Declarations and the clear willingness to depart from this practice matters for EU institutions, and therefore overall I understand this closure.

We saw this willingness very clearly at the lecture that was delivered by Poland’s new Minister of Justice, Adam Bodnar, to launch the CEU Democracy Institute’s Rule of Law clinic. On the topic of this change of government in Poland, this seems to be the necessary factor to halt values backsliding in the country. Indeed, Donald Tusk has been one of the only national leaders to actually secure a majority in the European Parliament election. On Hungary, RevDem have hosted an op-ed about how the Péter Magyar phenomenon seems like the first genuine challenge to Viktor Orbán’s political hegemony.  Do you think these events show that, ultimately, the only way to safeguard the Rule of Law is free democratic processes?

I would even say it must happen through social processes or through civic processes because, when you look at what has been happening in Poland in recent years, I think you must see it in the broader perspective of mobilization and civic reactions to various events such as the pandemic, the inflow of Ukrainian refugees, the protest against the government or specific policies, and lastly, the mobilization in the elections in October.

I would see this through the lens of a somewhat related phenomena of a tradition of civic mobilization, which is maybe not accompanied by strong institutions, but by the civic and social sense of the need for change.

So, it prompts me to say that you must look at the habits and customs and attitudes of citizens and perhaps there look for an answer. But, also, I would put this in the context of a long run perspective of generations, because generations grow and gain the right to vote.  From the perspective of the European Union, I think it makes a lot of sense to invest in youth and youth movements in the European Union, and integration and education. This would be investment in the future because, perhaps not today or tomorrow, but eventually the effectiveness lies in those who still can educate others, educate themselves, and integrate.

On that theme of the future, you talked there about the civic processes that are necessary across generations. So, based on your research into the intellectual sources and the history of EU constitutionalism, what do you think could be done differently for the accession candidate Member States now in order to ensure that we do not see backsliding on values again from new Member States in the future?

Well, you can see tragic events happening.  Of course, we have an invasion in Ukraine and we have the recent events in Georgia. And these are just two examples of the troubles, or actually huge troubles, in candidate Member States.  

On the other hand, I think this is a great opportunity because 20 years ago the civic integration, or the societal integration, could start only after the new Member States from Eastern Europe joined the European Union. Now, for instance, we have many, many refugees and migrants from Ukraine in the European Union.

 I think this is a great opportunity to begin the integration at a very local, civic, societal level, and to use the mutual experience of Ukrainian nationals and EU citizens regarding their co-operation, their labour, their entrepreneurship, and their exchanges with a view to help rebuild Ukraine after the war.

This transcript has been edited for length and clarity. In collaboration with Karen Culver. Ádám Húshegyi edited the audio recording.