The European Court of Justice, in Kirchberg, pictured in 2014.
Photo: Benjamin Champenois
“The state of the rule of law is an indicator of the state of the Union itself.” Werner Schroeder, professor of law at the University of Innsbruck, does not mince his words.
“When you discuss the rule of law in Brussels it’s always about the question of who gains and who loses. It’s always an inter-institutional power play, not about ideas, making life better for Europeans”, Austria’s ambassador to Luxembourg, Gregor Schusterschitz, said on Thursday.
In Luxembourg to present his new book “Strengthening the rule of law in Europe”, Schroeder argues that:
“There have been attempts to capture the constitutional court (in Poland). The government tries court-packing. First the government didn’t abide the rulings of the Constitutional Court, then it tried to repack the court with different judges. The independence of the judiciary is of course fundamental.”
Jaroslaw Kaczynski, chair of the nationalist, populist and conservative governing PiS party is considered to be the main driving force behind the recent conflicts with the Constitutional Court. The government has repeatedly ignored its ruling, changed judges, and laughed off recommendations by the European Commission to redress the situation.
Ambassador Schusterschitz provided the following analysis:
“the problem is that we are moving into an area of national competence. The composition of the constitutional court is a national competence, not an EU competence. EU institutions cannot legally act upon that. The ECJ does not have competence. That is why the Commission tried to invent this political vehicle (Article 7 TEU) because they know they have issue with that competence. The rule of law is the coming together of national competences and EU competences in a very uneasy way for member states. We are very concerned that the Commission will take too much power because it could be us next. This protects states that don’t respect the rule of law, because the other member states are hesitant. It is a question of power, of subsidiarity and proportionality. That is one of the problems from a political point of view.”
Schroeder found a clear way out of this dilemma:
“the observance of the rule of law in general is a value that is laid down in the Treaty’s Article 2. So, it is not actually an internal affair, as Mr Kaczynski of the PiS party indicated. Of course, the member state has the competence to nominate the judges but following the rule of law is not an internal affair. It is an obligation, a binding legal norm that they have to follow.”
Schusterschitz also argued that Poland was following the playbook of Viktor Orbán, Hungary’s prime minister. The same techniques are used to capture the independent institutions in a state, to capture the constitutional and other courts and to control the media. All the country’s major newspapers have been either closed or sold.
“But Hungary acted a bit more intelligently: every time they were criticized for any legal action against the media, the judiciary or the central bank, they always backed off a little bit. When the situation disappeared from the public radar, they advanced a little bit. Poland’s approach is different insofar as the Polish government basically denounced any attempts of the Venice Commission or the European Commission to cooperate. It doesn’t even want to cooperate, whereas Hungary always cooperated or pretended to cooperate.”
Schroeder argues that the number of member states that are either not willing or not able to fully apply the rule of law is increasing:
“we should also talk about Romania because the willingness or ability to fight corruption is also an issue of enforcing the rule of law. The number of member states not applying the rule of law could be growing and then it becomes a crisis. Maybe it’s not a crisis of the Union itself but it is a dangerous situation.”
The book, presented at the Austrian embassy in Luxembourg on 9 February, features contributions notably from Thomas von Danwitz, judge at the European Court of Justice, and Gregor Schusterschitz, Austrian ambassador to Luxembourg. The book focuses on different concepts of the rule of law in the Council of Europe and in the European Union, different mechanisms of implementing the rule of law, and institutional implications of implementing the rule of law in Europe.