Rule Of Law Backsliding Research Articles

On judges when the rule of law is under attack

A main question of the paper is why the courts, and the judiciary are such a main focus of those in power who attack liberal democracy today. First it adresses the connections between democratic decline and rule of law backsliding. Then it adresses some historical perspectives and compare the present situation to autocracies and totalitarian experiences in Europe in the twentieth century. Finally, it discusses different measures taken by autocratic rulers to limit judicial control, how to distinguish such measures from measures of legitimate legal reform, and how to counter such measures.

How do citizens define and value the rule of law? A conjoint experiment in Germany and Poland

ABSTRACT Democratic and rule of law backsliding are observed worldwide, but in Europe these tendencies are particularly salient as they endanger the entire European Union's cohesion. Poland, along with Hungary, has for years been perceived as a member state where the rule of law was in alarming decline. We attempt to understand what enabled this backsliding and to what extent differences in public perception of the rule of law can shed light on this issue. Specifically, we ask whether in Poland, as compared to Germany, the public values the rule of law less and whether it has a different understanding of what the rule of law is. Differences in appreciation of the rule of law could explain why it has been under threat in Poland, which otherwise successfully transitioned to a market economy. Interestingly, our quota representative conjoint survey experiments suggest that Germans and Poles value and define the rule of law very similarly. We show that the rule of law is valued much less by respondents who support populist parties and those who are less educated and more religious. Differences in valuation of the rule of law are determined by personal characteristics, rather than general differences between the two countries.

Rule of law backsliding within the EU: The case of informal readmissions of third‐country nationals at internal borders

AbstractThe essay deals with the enhancement of the legal framework for informal readmissions at internal borders enshrined in the former Schengen Border Code (now Union Code on the rules governing the movement of persons across borders), which in turn requires enhancement of bilateral police cooperation. It focuses on the impact of the new rules on the prohibition on police controls equivalent to border checks to highlight that the case‐law of the Court of Justice on the matter creates a huge grey area which is critical for the ideal of a border‐check‐free Union. Increased use of video surveillance and other technologies also faces the legal bottleneck of prohibition on police controls having equivalent effects to border checks, as well as raising serious concerns about fundamental rights. It is argued that the situation resulting from these amendments to the former Schengen Border Code should be considered in terms of an impending rule of law crisis at internal borders.

Introduction to the Special Section ‘Memory Laws and the Rule of Law’

Introduction to the Special Section – relationship between memory laws and the rule of law – exploiting law in the service of historical policy and undermining democracy – rule of law backsliding – democratic backsliding – risk of abuse of memory laws

Strategic Lawsuits against Public Participation (SLAPPs), the Governance of Historical Memory in the Rule of Law Crisis, and the EU Anti-SLAPP Directive

Strategic Lawsuits against Public Participation (SLAPPs) – the rule of law backsliding – governance of historical memory – academic freedom – EU Draft Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings

Rule of Law Backsliding and Memory Politics in Hungary

Introduction of the institutional framework of constitutional democracy and transitional justice in Hungary – Liberal constitutionalism as a victim of the authoritarian efforts of Viktor Orbán’s Fidesz party after the 2010 parliamentary elections – The legal governance of history contributing to the backsliding of democracy and the rule of law – Use of memory politics for the newly established authoritarian regime’s own political purposes – Transitional justice measures to help reconcile society and consolidate democracy – The current Hungarian government’s attitude towards public discussion of history

EU’s ‘Eastern discontents’ – when ‘top-down’ and ‘bottom-up’ politicisation collide – the case of Romania in the future of Europe debate

ABSTRACT Over the past decade, the wave of successive crises that hit the EU has tested the EU’s legitimacy and resulted in increased EU politicisation. In the period between the Brexit referendum up until the 2019 European elections, several CEE member states (such as Poland and Hungary and to a lesser extent Romania) contested the EU for breaching their national sovereignty, claiming that their countries’ values and identities are ‘threatened’ by the EU’s interference. In this article, we analyse the case of Romania’s clashes with the European Commission between 2017 and 2019 on the topic of rule of law backsliding. We analyse these discursive clashes in connection to the country’s first Presidency of the Council, as an illustration of the increased politicisation placed in the overall context of the Future of Europe debates. The empirical part is based on a chronological account of selected qualitative data about how this national-supranational ‘power struggle’ unfolded in the studied period. The findings show that in the case of Romania two forms of politicisation coincided and collided - one that was ‘bottom-up’, marked by highly polarised national politics and an East–West division and another that was ‘top-down’ - defined by the tensions inside EU’s own political dynamics between the Council and the Commission.

Spain, Judicial Independence, and Judges’ Freedom of Expression: Missing an Opportunity to Leverage the European Constitutional Shift?

Judicial independence as a European constitutional principle – Freedom of expression of judges in connection with judicial independence – Rule of law backsliding – Catalan secession crisis – Spanish Constitutional Court disqualification doctrine of magistrates – Freedom of expression of judges in favour of the Catalan secessionist movement – Spanish soft law on judicial independence

Enforcement of a Formal Conception of the Rule of Law as a Potential Way Forward to Address Backsliding: Hungary as a Case Study

The rule of law as a foundational value of European integration has been taken for granted in the Member States, along the presumption that “once a democracy, always a democracy”. This optimistic presumption proved to be wrong, when in the 2010s a top-down and systemic decline in the rule of law started, first in Hungary, then in Poland. Even though EU action against rule of law backsliding in the Member States is of existential importance for the whole European project, EU institutions seem to be either silent or too slow and inefficient when tackling the problem. In this paper we are focusing on the Court of Justice of the EU, which was emphasizing violations of a substantive understanding of the rule of law. Against this background we argue that adherence to a formal understanding or at the minimum incorporating arguments related to a formal concept of the rule of law would have been beneficial both in terms of speed and desired effect. Taking Hungary as an example we show that the lack of preliminary consultations and impact assessments during lawmaking, the enactment of significant legislative reforms in accelerated procedures without any adequate justification, the adoption of ad hominem laws, or the unclarity and unpredictability of legislation are all manifest violations of the formal understanding of the rule of law. There is significant potential in this approach that we believe the EU institutions have not exploited fully.

Civil Society and Rule of Law Backsliding in the EU

In the realm of the rule of law crisis taking place in several Member States of the European Union (EU), illiberal governments attempt to dilute institutional and non-institutional checks and balances with the aim to unrestrainedly exercise the state power. In this context, civil society, a sphere autonomous from the state where public interests are being expressed and formulated, is constantly undermined. This article tries to illustrate the relation between civil society and the rule of law and its backsliding. In this regard, a theoretical framework indicating the connections of the dominant civil society theories with core rule of law elements will be developed and the points of friction with rule of law backsliding will be indicated. This theoretical framework will, then, be tested in EU institutional practice through the examples of the EU Annual Rule of Law Report and the case Commission v. Hungary (Transparency of Associations, C-78/18). civil society, rule of law backsliding, fundamental rights, participation in decisionmaking, Annual Rule of Law Report

Making Do With What We Have: On the Interpretation and Enforcement of the EU’s Founding Values

AbstractArticle 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

The Need for an EU Expulsion Mechanism: Democratic Backsliding and the Failure of Article 7.

What should the EU do about the fact that some Member States are backsliding on their commitments to democracy, supposedly a fundamental value of the EU? The Treaty provisions under Article 7 TEU are widely criticized for being ineffective in preventing such developments. Are they legitimate? I argue that the ultimate sanction of Article 7 TEU falls into a performative contradiction, which undermines its ability to coherently defend fundamental values. Instead, expulsion from the EU is the appropriate, coherent and legitimate final political sanction for democratic and rule of law backsliding by a Member State. The argument has the following steps: In Part 1, I argue that the current Article 7 framework for responding to democratic and rule of law backsliding in the EU is normatively problematic, in that the mechanism currently in the Treaty undermines the values it purports to defend; in other words, it falls into a performative contradiction. It is undemocratic to deprive Member States of their right to vote in the Council while holding them subject to Council decisions. However, Part 2 studies relevant philosophical arguments from an adjacent literature on criminal disenfranchisement, concluding that allowing backsliding Member States to keep their voting rights in the Council also taints the democratic character of Council decision-making. In Part 3, I consider the resulting paradox in light of the literature on militant democracy. Could militant democracy justify Article 7? I argue not; even if we accept the hypothetical justifiability of militant measures, they are not legitimate here since a democratically acceptable alternative exists that would safeguard the democratic character and legitimacy of Council decision-making: expulsion from the Union. I also address a central objection to an expulsion mechanism—that it would require treaty change and is therefore practically impossible.

To Live and to Learn: The EU Commission’s Failure to Recognise Rule of Law Deficiencies in Lithuania

During the last decade, it has become apparent that the European Union (EU) Commission is failing to halt rule of law decline in Poland and Hungary. However, has the Commission learnt from its experience in handling rule of law decline in these countries? This article suggests that not only has the EU Commission failed to learn the importance of swift action in the face of burgeoning rule of law crises but has actively ignored similar systemic issues altogether in Lithuania, a country that has historically been an exemplary Member State. This article will analyse the status of the rule of law and judicial independence in Lithuania in light of the EU Commission’s first two Rule of Law Reports published in September 2020 and July 2021. These reports were designed to act as a preventative measure to protect the rule of law in each Member State through documenting and raising awareness for rule of law developments in the Union. Lithuania has largely slipped under the radar of constitutional democracy scholars; however, in the past two years, Lithuania has endured a series of attacks on judicial independence and suffered an attempted siege of its national broadcaster. There has been an intense deadlock recently over the election of Constitutional Court justices, which has raised concerns over the executive’s persistent attempts to politicise Lithuania’s highest court. Worryingly the recent Rule of Law Reports, published by the EU Commission, fail to reflect the severity of these recent developments. The reports’ silence on these issues leads this article to conclude that the EU Commission is turning a blind eye to Lithuania’s precarious rule of law situation by failing to truthfully document significant negative developments around the rule of law. By doing so, the Commission not only exacerbates rule of law issues domestically but also undermines the fight against rule of law backsliding in the Union.

The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary

Abstract How did the Council of Europe cope with its member states that engaged in rule of law backsliding? This article analyses the responses of the Venice Commission, the Council of Europe’s expert body on constitutional matters, to Turkey, Hungary, and Poland as their governments eliminated key checks and balances on their power, curtailed judicial independence, and undermined political pluralism and civil society. It finds that the Venice Commission managed to address a set of particularly vital issues that get to the heart to rule of law backsliding in these countries. Despite the breadth of the Venice Commission’s forthright involvement, these case studies display the limitations on the part of other Council of Europe bodies in forming a coordinated approach and response to rule of law backsliding.

Time for the Gloves to Come Off?: The Response by the Parliamentary Assembly of the Council of Europe to Rule of Law Backsliding

Abstract The Parliamentary Assembly of the Council of Europe has limited tools to respond to rule of law backsliding by member states. Sanctions have never been used for this purpose, and the Assembly’s monitoring procedure—the most significant tool of scrutiny—presents a mixed picture. This article focuses on four states exhibiting severe rule of law backsliding: Hungary, which has evaded the procedure; Poland, which was placed under monitoring in 2020; Turkey, which in 2017 became the first state to have monitoring reopened; and Azerbaijan, which has been under monitoring since 2001. Through a first-ever analysis of debates, voting patterns, and tactics used in the Assembly, the article elucidates how proponents and opponents of monitoring have framed their arguments in the battleground of ideas about democracy and the rule of law in Europe. It concludes that the Assembly should fundamentally reappraise monitoring—and the possible use of sanctions—to meet the severity of the challenge.

Asylum in the EU: One of the Many Faces of Rule of Law Backsliding?

EU values – Rule of law backsliding – Rule of law and fundamental rights interrelation – Refugee protection – Common European Asylum System – Implementation gap in asylum – Lack of fair responsibility sharing in asylum – Structural deficiencies in national asylum systems – Defiance of asylum obligations and the duty of sincere cooperation – Systemic fundamental rights violations – Upholding the rule of law – European Asylum System redesign – Systemic infringement actions – Rule of law monitoring

The two-step can’t be the quick step: The CJEU reaffirms its case law on the European Arrest Warrant and the rule of law backsliding

The two-step can’t be the quick step: The CJEU reaffirms its case law on the European Arrest Warrant and the rule of law backsliding

The Advent and Fall of Trust as a Cornerstone of Judicial Cooperation in Multilateral Regimes in Europe. A Cautionary Tale

The complex network of trust-based and trust-enhancing mechanisms is nowadays confronted with the advent of illiberal democracies in Europe resulting in the regression of democratic guarantees in the form of human rights and/or rule of law backsliding. In this chapter, we will first flesh out the notion of trust in order to better comprehend its multifaceted nature (II) and then, after analyzing the notion of human rights/rule of law backsliding, we will present the way multilateral judicial cooperation networks in Europe attempt to adjust to the above phenomenon turning firstly to the ECtHR (III.A) and secondly to the EU’s judicial system (III.B), before offering some tentative conclusions (IV).

In courts we trust, or should we? Judicial independence as the precondition for the effectiveness of EU law

AbstractThe present article argues that the EU possesses an arsenal of tools to address dissuasively rule of law problems in the Member States. This shows the double nature of the EU's separation of powers problem. Whereas some states suffer from rule of law decline and a lack of limitation of governmental powers, there is a risk of the crumbling of separation of powers at the EU level, too, where institutions fail to adequately address rule of law violations. Against the EU institutions' lack of forceful action towards rule of law backsliding, domestic courts try to protect judicial independence increasingly via preliminary references. Also, they attempt preventing the proliferation of the consequences of rule of law decline via judicial cooperation in the mutual trust/mutual recognition domain. This article explores to what extent preliminary rulings can make up for the failure to use adequate EU tools of rule of law enforcement.

Containing Populism at the Cost of Democracy? Political vs. Economic Responses to Democratic Backsliding in the EU

This paper critically engages the legal and political framework for responding to democracy and rule of law backsliding in the EU. I develop a new and original critique of Article 7 TEU based on it being democratically illegitimate and normatively incoherent qua itself in conflict with EU fundamental values. Other more incremental and scaleable responses are desirable, and the paper moves on to assess the legitimacy of economic sanctions such as tying access to EU funds to performance on democratic and rule of law indicators or imposing fines on backsliding states. I hold such sanctions to be a priori legitimate, and argue that in some cases economic sanctions are even normatively required, given that EU material support of backsliding member states can amount to material complicity in their backsliding. However, an economic conditionality mechanism would need to be designed to minimize unjust and counterproductive effects. One way to pursue this could be to complement sanctions against the backsliding government with investment for prodemocratic actors in that state.