The Lead Researcher of the Rule of Law in Europe research project, Susana Sanz Caballero, has published a chapter in the book “Construyendo un mejor derecho. Perspectivas internacionales y comparadas.” (Spanish for: Building a better Law: International compared perspectives) In this chapter, Professor Sanz provides a comprehensive perspective on the current state of the Rule of Law in Europe, focusing particularly on the cases of Hungary and Poland.
In late 2023, the Tirant Lo Blanch publishing house released “Construyendo un mejor derecho. Perspectivas internacionales y comparadas.” (Spanish for: Building a better Law: International compared perspectives) in Mexico, coordinated by Carla Ledezma and Juan Pablo Pampillo. In this compilation, Professor Jean Monnet Susana Sanz Caballero, the Lead Researcher of the project on the Rule of Law in the EU, contributed a chapter titled “Attacks on Judicial Independence and the Rule of Law Crisis in Europe.” This book chapter feature will briefly review the chapter’s content and Professor Sanz’s analysis.
The chapter begins by mentioning the distinction between liberal democracy and “illiberal democracy,” a term used by Hungarian President Viktor Orban. While liberal democracy embraces political plurality, civil liberties, and the separation of powers, illiberal democracy seems to forsake these essential values. At the heart of this struggle is judicial independence, a fundamental pillar of the rule of law. Professor Sanz emphasizes that this pillar has been compromised as part of the systematic offensive by Orban’s Fidesz against the Hungarian democratic system.
Since Viktor Orban came to power, Hungary has witnessed a deliberate deterioration in judicial independence. Legal reforms, changes in court administration, and arbitrary decisions in the Constitutional Court have weakened the judicial structure. Judicial independence, crucial for restraining the abuse of power, is eroded as the executive exerts increasing control over the judiciary.
Similarly, Poland, under the Law and Justice party’s government, faces an antidemocratic drift that profoundly affects the separation of powers and judicial independence. Unconstitutional appointments, forced reductions in the retirement age of judges, and a disciplinary regime punishing judicial independence and collaboration between national and community judges are some of the practices that have led to an alarming situation. The merger of the Ministry of Justice and the Prosecutor’s Office, along with the ruling party’s control over the education of future judges, signals an unprecedented political control over the Polish judiciary.
Professor Sanz notes the reason behind these attacks on the judiciary by both regimes: judges and courts are often one of the most effective checks on executive and parliamentary action, so these governments have focused on dismantling these checks and balances inherent in liberal democracy. Unlike the legislative or executive branches, electoral results do not mean control of the judiciary, making it a target for these governments.
International organizations such as the Venice Commission and the European Court of Human Rights have expressed concern. Although the European Union has taken legal measures, critics argue that the actions do not address the central problem: the systematic attack on the judiciary in Hungary and Poland. The lack of effective intervention feeds the risk that other governments may follow suit, eroding the fundamental values of the European Union. These cases reveal an existential crisis in the EU, as an attack on judicial independence in a member state is ultimately an attack on the very heart of the European Union. The situation demands a joint and decisive response to preserve the democratic principles and rule of law that have been the essence of the union.
For the author, the situation in Europe regarding judicial independence has reached a critical point, highlighting the response of the Court of Justice of the European Union (CJEU) as a key actor in defending the rule of law. Both Poland and Hungary have been condemned by the CJEU following judicial reforms deemed contrary to EU law. These judgments, issued in infringement proceedings, have urged both countries to restore the situation to pre-reform conditions.
It is essential to note that, despite its firm stance, the CJEU has limitations in its mandate. Its ability to act is based on responding to specific cases presented and only when it has jurisdiction. Unlike the European Commission or the European Parliament, the CJEU operates reactively, meaning it cannot take action beyond the cases presented to it. However, despite these limitations, the CJEU has played a crucial role by issuing robust jurisprudential decisions, primarily through preliminary rulings referred by national courts and infringement proceedings against member states. A recent example mentioned in the chapter is the judgment conditioning the disbursement of EU Next Generation funds on compliance with rule of law standards by member states.
The CJEU has applied the theory of conditionality, stating that member states’ access to funding is subject to respecting EU values, including the rule of law. This position reinforces the idea that EU values are directly applicable and have binding force.
In conclusion, Professor Sanz talks about the importance of understanding that the fight against populism and illiberal democracy is not limited to Poland and Hungary, but is a growing phenomenon in various European states, including France, the Netherlands, Germany, Spain, and Italy. The speed at which the rule of law has deteriorated in Poland and Hungary underscores the importance of a robust legal culture beyond written norms. Additionally, it highlights the importance of preventing and combating attacks on the judiciary, not only at the national but also at the international level, and identifying populist movements trying to discredit international judicial pronouncements and European judges. The analysis underscores the importance of judicial independence as a central element in resisting the illiberal plans of ruling parties. It also emphasizes the importance of the CJEU’s response in defense of the rule of law in the EU, despite the limitations of its mandate. Finally, it points out the need to strengthen legal culture and judicial independence to counter current and future challenges related to populism and illiberal democracy in Europe.
