available languages: english juillet 1, 2019

A landmark ruling against enforced early retirement for Polish judges shows the EU has woken up to threats to democracy

Perhaps one day the spring of 2019 will be remembered as the moment when the European Union halted the destruction of democratic institutions in its member states. Just look at how governments in Poland, Hungary and Romania have backtracked on anti-democratic measures they were seeking to introduce. And this week, in a landmark ruling, the European court of justice declared that the enforced early retirement of Poland’s supreme court judges would be unlawful. Could this be a tipping point? What’s clear is that law, money and politics have aligned in ways that now make it more difficult for the Viktor Orbán playbook to be repeated across Europe.

The EU’s record on this has been problematic. It failed to define and enforce red lines on democracy in Hungary as far back as 2011-2012. The EU and its institutions watched passively for too long as Hungary’s ruling party, Fidesz, took control of the state. Poland’s government tried to copy this but because it lacked a two-thirds majority in parliament it could not rewrite the country’s constitution as Orbán has. Some of its measures have been cruder and more obviously unlawful, especially when it replaced constitutional tribunal judges in rushed moves after the 2015 elections. But not all is lost. The fight to protect the independence of other parts of the judiciary continues.

That is why the 24 June ruling by the European court on Poland is so significant. For the first time, an EU institution has stopped an attempted takeover of a national court in its tracks. Retiring judges early aims to make way for government-appointed judges and amounts to a systemic assault on the independence of the judiciary. The recent ruling shows that EU law has teeth. And these will become sharper when financial aspects are added.

The European commission has proposed cuts to EU funding to countries that do not uphold the rule of law. Both the Hungarian and Polish governments have been huge beneficiaries of EU funds. Hungary in particular is notorious for high-level corruption cases – to which its institutions have turned a blind eye. Now, Orbán has reasons to worry that his “business” model of channelling public opinion against “Brussels” – all the while taking EU money to prop up his power base – will cease to work.

Pay attention also to Europe’s wider political context: the exuberance that far-right or anti-democratic parties displayed ahead of last month’s EU elections has waned. While these forces did make gains in a number of countries, there was no dramatic breakthrough. Their momentum was imagined, not real. Far from dominating, they are no more than one of many parts of a broad political spectrum. Mainstream political groups in the European parliament are now exerting more pressure on parties that attack the rule of law. For example, the European Socialists group has threatened to suspend its Romanian member party, just as the rightwing European People’s party suspended Fidesz.

As a result, Romania’s prime minister has abandoned a highly controversial judicial reform, and Orbán’s government has withdrawn plans to reform the administrative justice system. Meanwhile, Poland has indicated it would abide by what the European court of justice says – in effect backtracking on some of its agenda.

The EU should build on this momentum to uphold democratic institutions. Of course, damage already done is not easy to reverse, but further slides towards authoritarian rule can be averted. This is not a matter of partisan politics. Romania’s government claims to be from the left, Poland’s is from the right. What’s at stake is Europe’s democratic integrity. All member states are involved in making EU laws. If one of them stops being a democracy, the legitimacy of the entire European process suffers: one rotten apple spoils the barrel.

Progress could be made in many different ways. First, why not set up a common European democracy-monitoring mechanism? The idea has long been floated as a way of ensuring that all member states are regularly scrutinised, not only those with domestic controversies. It would help counter the oft-made argument that some countries get unfairly criticised while others get a blank cheque. Now would be a good time to put such a mechanism in place.

Second, some experts rightly argue that the EU could do more to train and inform lower courts in EU member states about how cases can be brought to the European level. Western European courts have been more active in bringing cases to the EU court of justice than their counterparts from central and eastern Europe. In 2017, German courts did so for 149 cases, compared with 19 cases from Poland and 16 from Romania.

Third, the European commission could turn sooner to the EU court (as it did on Poland), rather than pursue “dialogue” with governments that don’t want to change course.

And then there is something that we can all do. Protecting democracy in Europe would surely be an easier task if we drew a clearer distinction between anti-democratic policies and policies with which we disagree. Democracy offers space both for the right and for the left. What it should not tolerate are moves against democracy itself. When critics pretend that any policy they dislike is an attack on democracy, it only becomes easier for those busy dismantling checks and balances to say that their critics are disingenuous and merely set on thwarting policies they dislike.

This article was first published on theguardian.com and forms part of the project “re:constitution – Exchange and Analysis on Democracy and Rule of Law in Europe”, funded by Stiftung Mercator. 

Photocredit: Dawn Ellmore/Flickr