Dura lex, sed lex


A revival of nationalist authoritarianism has caught fire in the European Union. Suspending EU voting rights is drastic but may be the only option.

While Warsaw and Budapest appear to be dismantling the rule of law in their respective nations, in Brussels a solution is being sought along the, sometimes tortuous, roads of European Union treaties and regulations. The infringement procedures initiated against Hungary and Poland respond to the necessity to stop the haemorrhage of democracy before it produces irreparable harm to the European body politic. The cure is drastic and involves article 7 of the Treaty of the European Union (TEU), the so-called “nuclear option”, alast resort involving the suspension of voting rights in the European parliament.

Referred to by some governments as nothing more than a scarecrow, the EU’s nuclear weapon would appear to be loaded with blanks. In fact, in order to suspend the voting rights of a member state,a unanimous decision must be made by all of the remaining countries, therefore, an alliance between governments of an authoritarian bent could block everything. The Brussels’ response, however, has been anything but formal, bureaucratic pettifogging, striking directlyat the scourge againstEuropean democracyusing the full force of the law in order to fight to maintain its inviolability. Faced with the possibility of political impasse, it is likely that the responsibility will be handed to the European Court.

The Commission has been closely monitoring Poland since the installation of the nationalist conservative government of the Law and Justice Party, presided over by Jarosław Kaczyński and led first by Beata Szydło, then by Mateusz Morawiecki,that emerged as the winner of November 2015 elections

Already by 2016 the new executive had received notification from the Commission of thedecision to begin the preliminary procedure for Article 7 in order to ascertain the existence of a systemic threat to the rule of law. The contentious issue was a packet of laws created to modify the composition and functioning of the constitutional court in such a way as to diminish its independence. In the face of Brussels’ requests and recommendations, the Polish government turned a deaf ear and continued to move forwards with other initiatives that undermined civil and sexual rights as well as freedom of expression. The field in which the Polish government seemed to be making the greatest effort, however, concerned the restructuring of the judiciary.The incessant introduction of laws (the European Commission cited at least 13 between 2015 and 2017) seriously compromised the independence of the entire judicial systemfrom political power, first striking at the Constitutional Court, then the Supreme Court and finally, ordinary judges. The laws to reform the functioning of the Constitutional Court, proposed on 22 July 2016, represented the point of no return for Polish democracy. Government legislation sanctioned the end of the separation of legislative and executive power in Poland, bringing the Court under government control. What’s more, according to the new regulation, the Minister of Justice acquired the right to appoint and fire presiding judges(conferring on the minister an undue influence over judicial procedure) and also to appoint some members of the National Magistrate’s Council, the judge’s organ of self-governance

Once again the Commission reacted in the only way possible, by proceeding to the next step of the application of art.7 of the TEU, sending a detailed request to Warsaw calling for a revision of the law. Again the Polish government ignored Brussels’ request. The latest development in Poland’s assault on the judiciary is the recent adoption of a measure that will oblige judges aged over 65 to retire (the current age limit is 70), enabling the government to sweep away aging members of the judiciary, replacing them with docile and compliant judges. The Venice Commission, the advisory bodyfor the Council of Europe on matters of constitutional law, defined the current Polish scenario as “similar to the old Soviet system”. The European Union has reacted by taking legal action against the Polish government.This represents one of the conclusive passages of the intricate infringement procedures that could call into action the European Court of Justice, bypassing the obstacleof the unanimous vote. The case of Poland demonstrates how the EU has been able to respond to rights violations in a member state in spite of predictable obstacles that are the fruit of myopic political manoeuvring (see the British Conservative party that had voted against launching the infringement procedure). While the outcome remains to be seen, we can, nevertheless be certainof the fact that European law remains democracy’slastline of defence in the face of rising authoritarianism:the rule of law being applied to fight against those who wish to overturn it.

On 25 June the Justice and Internal Affairs Commission of the European Parliament voted with a large majority in favour of launching infringement proceedings against Hungary in relation to article 7 of the TEU. The proposal, drawn up by the Dutch Green party MEP Judith Sargentini, underlined European concern for the independence of the judicial system, freedom of expression and the rights of minorities and migrants. The latter group find themselves facing an increasingly repressive regime following the adoption of laws that drastically limit the scope for requesting asylum in the country. A packet of constitutional amendments proposed by the government in May introduce some concepts that clearly contradict European core values, such as “no foreign population can settle in Hungary” or the crime of “promoting clandestine immigration” aimed at preventing NGOs from offering assistance to migrants. Viktor Orban has claimed that Ms Sargentini is being paid by George Soros and that her initiative aims to undermine Hungarian freedom. But the vote in the European parliament, planned for the September plenary session, could include Sargentini’s proposal by launching the first of three phases planned for the infringement procedure, with an outcome not dissimilar to the experience of Poland. Will this mean that all of Europe is on the payroll of George Soros?

At stakeare not only the rule of law in Poland and Hungary, but also the future direction of the Union and of Europe: open and democratic or closed and authoritarian? Macron and Merkel are pushing for the former option along with some unexpected political allies from Eastern Europe such as Slovakian president Andrej Kiska (proving that the four countries of the Visegrad group are by no means a united club). For the second solution Orban and Kaczyński, but also the leader of the Christian Social Union in Germany, Horst Seehofer, the Austrian Chancellor, Sebastian Kurz as well as Italy’s current minister of the interior Matteo Salvini. But while it appears that the supporters of a closed Europe form a common block, for example in relation to the resettlement of migrants and the policies of reception, it is also true that a sovereignist approach inherently impedes large alliances as it prioritises short-term nationalist-inspired policies. These, however, are not to be taken lightly. The authoritarian drift is a European phenomenon and a meaningful response is necessary not only for the future of the European project but also in order to safeguard democracy in the old continent. “What does this mean for the European Union?” asked Frans Timmermans, vice-president of the Commission, in a speech on 20 December 2017 as relations with Poland soured. It means,“respect for the rule of law as a pre-requisite for the defence of European values, for the functioning of the single market, for the reciprocal trust between member states. If you limit or end the separation of legislative and executive power, you destroy the rule of law and destroy the Union as a whole.”

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