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1. Rule of law: the uncertain gamble on conditionality

Author:
Eric Maurice
Publication Date:
03-2023
Content Type:
Policy Brief
Institution:
Robert Schuman Foundation (RSF)
Abstract:
Will 2023 be the year when Hungary and Poland join the ranks of Member States that respect the values of the European Union? Nothing is less certain because, in Budapest as in Warsaw, the reforms demanded by the Union have not yet been implemented. In early February Polish president Andrzej Duda, referred a law which was supposed to bring an end to disciplinary abuses against judges to the Constitutional Court. The Hungarian government has still not completed reforms to make public procurement more transparent and to strengthen the fight against corruption. The fact that these measures are being discussed indicates however that the balance of power has changed. 2022 was a pivotal year in the European Union's efforts to combat breaches of the rule of law in its Member States. For the first time, a range of new and old tools, specific or not, structural or conjunctural, were used to try to reverse the trend that has been developing for several years, mainly in Hungary and Poland, of undermining the independence of the judiciary, systems of checks and balances, and certain rights that are considered fundamental.
Topic:
European Union, Rule of Law, Judiciary, and Regional Politics
Political Geography:
Europe, Poland, Romania, and Hungary

2. Protecting checks and balances to save the Rule of Law

Author:
Eric Maurice
Publication Date:
04-2021
Content Type:
Policy Brief
Institution:
Robert Schuman Foundation (RSF)
Abstract:
For half a decade, the Polish government has been reshaping the country's judicial system in a process described by the European Union as a "threat to the rule of law". Despite numerous Council of Europe reports and resolutions, several infringement proceedings and decisions of the Court of Justice of the European Union (ECJ), and the unprecedented activation of the so-called Article 7 procedure of the Treaty on European Union (TEU), the transformation of the judiciary into relays of political power has continued and accelerated since the Law and Justice Party (PiS) won a new term in 2019 and the reelection of President Andrzej Duda in 2020, pushing Poland to the limits of the European legal order.
Topic:
Government, European Union, Courts, and Rule of Law
Political Geography:
Europe and Poland

3. The rule of law in Poland or the false argument about the primacy of European law

Author:
Eric Maurice, Emilie Malivert, and Ana Pasturel
Publication Date:
11-2021
Content Type:
Policy Brief
Institution:
Robert Schuman Foundation (RSF)
Abstract:
On 24 November, the Polish Constitutional Tribunal ruled that the European Convention on Human Rights was partially incompatible with the country's constitution. In July and October, it had issued similar rulings on the Treaty on European Union (TEU). This double decision comes as the European Commission suspended the approval of Poland's €36 billion recovery plan, including €23.9 billion in EU grants, due to concerns about the rule of law. On 19 November, the Commission also sent a letter to the Polish government as a prelude to the launch of a procedure that could lead to the suspension of EU funds under the budgetary conditionality regulation. The confrontation between the Polish government and the European institutions, primarily the Commission and the European Court of Justice, has been presented by the Polish government as a struggle of principle between the primacy of European law, which was allegedly being imposed excessively on Member States, with "the national legal order and the supreme force of the Constitution” being under threat. The Polish Prime Minister, Mateusz Morawiecki, explained that the implementation of EU law, as requested by the CJEU, would lead to "a fundamental lowering of the constitutional standards of judicial protection of Polish citizens, and unimaginable legal chaos". Beyond the grandstanding and responses in support of an effort to defend the sovereignty of peoples, it appears that the weakening of these constitutional norms in recent years in Poland is precisely what has led the Constitutional Tribunal to partly denounce the TEU (European Union) and the European Convention on Human Rights (Council of Europe), and that the quarrel over the primacy of European law is essentially a smokescreen to hide this situation.
Topic:
Human Rights, Sovereignty, Constitution, Rule of Law, Institutions, and Norms
Political Geography:
Europe and Poland

4. The Rule of Law and its Social Reception as Determinants of Economic Development. A Comparative Analysis of Poland and Germany

Author:
Christopher Hartwell, Kateryna Karunska, Krzysztof Głowacki, and Maria Krell
Publication Date:
11-2020
Content Type:
Special Report
Institution:
Center for Social and Economic Research - CASE
Abstract:
The rule of law, by securing civil and economic rights, directly contributes to social prosperity and is one of our societies’ greatest achievements. In the European Union (EU), the rule of law is enshrined in the Treaties of its founding and is recognised not just as a necessary condition of a liberal democratic society, but also as an important requirement for a stable, effective, and sustainable market economy. In fact, it was the stability and equality of opportunity provided by the rule of law that enabled the post-war Wirtschaftswunder in Germany and the post-Communist resuscitation of the economy in Poland. But the rule of law is a living concept that is constantly evolving – both in its formal, de jure dimension, embodied in legislation, and its de facto dimension, or its reception by society. In Poland, in particular, according to the EU, the rule of law has been heavily challenged by government since 2015 and has evolved amid continued pressure exerted on the institutions which execute laws. More recently, the outbreak of the COVID-19 pandemic transformed the perception of the rule of law and its boundaries throughout the EU and beyond (Marzocchi, 2020). Against this background, this study examines the rule of law as a determinant of economic development in Germany and Poland from both the de jure and de facto perspectives.
Topic:
Economic Growth, Rule of Law, Trade, and Economic Development
Political Geography:
Europe, Poland, and Germany

5. Poisoned heritage for the new Commission: The rule of law question

Author:
György Fóris
Publication Date:
12-2019
Content Type:
Working Paper
Institution:
European Policy Centre (EPC)
Abstract:
The rule of law issue is not going anywhere anytime soon. The Polish and Hungarian governments will likely remain in power for years. Czech, Croat and some Romanian leaders seem impressed and ready to follow the paths Kaczyński and Orbán have paved. And Italy might not have seen the last of Matteo Salvini. Member states that increasingly question, ignore, or even attack previously agreed-upon policies, political priorities or common principles are becoming a regular occurrence within the Union, one that the new Commission will have to deal with. In this Discussion Paper, György Fóris finds that in an increasingly politicised Union, the design of the current rule of law mechanism is lacking. He argues it cannot function effectively on legal grounds alone as long as the existing Treaty foundations remain ambiguous and the final decision is taken at the political level, where it is the Council and not the Commission that is the decisive player. So the von der Leyen Commission will face a difficult choice: either try to live with all of the formal members of the Union, listening to and mediating between them, while continuing to defend the rules and values that were entrusted to it as the Guardian of the Treaty and thus preserve the EU’s unity. Or, take sides and lead an open political fight against those who seem to weaken the previously agreed interpretation of fundamental European rules and principles. Fóris, however, offers a third option: While not giving up on unity, likeminded and willing EU countries could intensify their level of cooperation, while formally retaining all parties within the framework of a larger (and looser) Community.
Topic:
Treaties and Agreements, European Union, and Rule of Law
Political Geography:
Europe, Poland, Romania, Hungary, Croatia, and Czech Republic

6. Poland’s 2019 election: Bright prospects for the populist Right

Author:
Marco Siddi and Barbara Gaweda
Publication Date:
10-2019
Content Type:
Working Paper
Institution:
Finnish Institute of International Affairs
Abstract:
Poland’s incumbent party Law and Justice seems poised to win the election thanks to its welfare policies and the weakness of the opposition. However, its attacks on the independence of the judiciary and the media could further erode the rule of law and exacerbate disputes with the EU.
Topic:
Authoritarianism, Elections, European Union, Populism, Conservatism, and Rule of Law
Political Geography:
Europe and Poland