LUXEMBOURG — The European Union’s battle over the rule of law is set to be decided in the bloc’s highest court of law.
After EU countries and the European Commission deadlocked over how and whether to sanction democratic backsliding in countries like Hungary and Poland, they kicked the problem up to the Court of Justice of the European Union.
The court is no stranger to tricky political and legalistic problems — often those that politicians failed to resolve. But this case means risking an unprecedented level of politicization that its justices have long sought to avoid.
“The Court of Justice has always taken decisions of great political or economic importance, but in the past, it was more about issues such as the primacy of Union law, [citizen rights] or the integrity of the internal market,” said Burkhard Hess, a professor for European law and executive director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.
Last week, EU leaders agreed to a measure that could cut off EU funds to countries like Hungary or Poland that were found in breach of the rule of law — but they also decided to suspend implementation until the court could rule on its validity.
More accustomed to ruling on technical issues — like definitions of market dominance, EU competences in trade policy or standards for privacy protection — the Luxembourg court has increasingly been called upon to decide whether actions by Budapest and Warsaw are reconcilable with EU laws and values. Now, the court’s 27 red-robed justices will have to rule on one of bloc’s hottest political disputes.
Kees Sterk, a Dutch judge and former member of the Netherlands’ Supreme Court, said that the court had traditionally taken a “de-escalatory approach” when issuing rulings, finding legalistic solutions to problems of EU integration without allowing them to spill over into a big political fight.
This approach is now about to reach its limits, he said: “Things have escalated quite a bit. There will be a point where the court in Luxembourg has to show its true colors. And I think this will happen quite soon.”
‘Cracks’ in the EU’s foundations
The European Commission and Western EU countries have for years accused Hungary and Poland of backsliding on democratic standards, undermining the independence of their courts and attacking media freedom. Yet political talks with those countries have failed to yield progress, and Article 7 disciplinary procedures, which were launched against both countries, got stuck in the Council of the EU, where some countries have shown reluctance to take steps that could lead to sanctions.
Even before EU leaders kicked the conflict to the judiciary, there were several rule-of-law cases against Hungary and Poland ongoing at the Luxembourg court.
One regards the European Arrest Warrant and doubts raised by courts across the EU over whether they should still transfer criminals or suspects to Poland for prosecution, considering the concerns about the independence of the country’s judiciary.
“The courts from Ireland, from the Netherlands and Germany are asking the European Court of Justice: Can we still execute the European Arrest Warrant with Poland? There’s an [Article 7] procedure going on against Poland — does that mean the courts there are no longer independent? Can we still trust them?” said Hess. “Here the Court is now involved in a very big political dispute.”
A ruling is expected early next year. Should the court rule that the Polish juridical system can no longer be trusted, this would put judicial cooperation between Warsaw and other EU countries on ice — a dramatic blow to intra-EU relations that could have spill-over effects into other areas as well.
Early indications hint that the Court of Justice may, at least in this case, stick to its traditional attempts to de-escalate. A nonbinding opinion by one of the court’s advocates general issued in November proposed that the extradition of individuals to Poland should be examined on a case-by-case basis, instead of generally suspending cooperation with Polish authorities.
Another case concerning Poland may not be so easy to finesse.
The European Commission has filed action against Poland, arguing that a new disciplinary regime for Polish courts — which Warsaw started to roll out in 2017 — allows judges to be sanctioned based on the content of their rulings. Punishments can range from lifting judges’ immunity to suspending them from their duties and cutting their salary.
The measures “undermine the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control,” the Commission argued in a statement.
At a hearing in Luxembourg in early December, five EU countries — Belgium, Denmark, the Netherlands, Finland and Sweden — backed the Commission’s request that the court order Poland to reverse its reforms. Maria Wolff, a lawyer representing the Danish government, warned that if no action is taken now, “there is a risk that cracks will appear in the EU’s foundations.”
“This case boils down to the core question of the independence of the judiciary,” said Sterk. “The Court of Justice will have to clearly say whether it’s OK what is happening here, or not. This makes it a sensitive case with enormous political consequences.”
Financial penalties
In a sign that the EU’s top court is aware of the high stakes of the upcoming ruling, its president, Koen Lenaerts, issued in January an unusual public warning to Poland over its judicial reforms: “You can’t be a member of the European Union if you don’t have independent, impartial courts operating in accordance with fair-trial rule, upholding Union law,” Lenaerts said in a debate at Warsaw University.
The court president declined an interview for this article. His spokesperson said he could not express himself at this moment given the sensitivity of the upcoming decisions.
One EU diplomat following the court cases closely said there were concerns that given the high political tensions at hand, the court could face attacks from Polish or Hungarian politicians or pro-government media for being unfair, biased or even corrupt. The court got a foretaste of politically motivated attacks during the Brexit discussions, when Brexiteers accused it of being an instrument that undermined the U.K.’s sovereignty.
In addition to the two cases against Poland, the court will rule in another explosive case next year, dealing with the question of whether Hungary’s judiciary is still independent.
For their part, both Poland and Hungary are expected to ask the court early next year to rule on the legality of the conditionality mechanism in the EU’s next seven-year budget, which ties payments to certain rule-of-law criteria. EU leaders agreed last week that the highly anticipated measure — which is linked to hopes that EU countries will be held more accountable for respecting EU values — can only be used after the court has given its approval.
The judicial showdown will probably happen soon, as there are indications that the court will issue its verdict in an accelerated procedure given the major political implications.
“In my view, we are talking about months rather than years,” Commission Vice President Věra Jourová said last week.
What gives the court’s decisions the possibility of breaking the EU’s rule-of-law stalemate — something that the Article 7 proceedings are unlikely to ever achieve — is its sweeping powers to enforce its rulings.
Should the court rule, concerning the cases against Hungary and Poland over the independence over their judiciary, that these countries must change course, any non-compliance could lead to financial penalties that hit Budapest and Warsaw where it hurts them most: their reception of EU budget payments.
EU treaties allow the European Commission to propose unlimited penalties against a country that “has not taken the necessary measures to comply with [a top court] judgment,” and it’s up to its justices to decide whether a ruling has been ignored.
Gunther Krichbaum, a senior politician from German Chancellor Angela Merkel’s CDU party and the chair of the Bundestag’s European Affairs Committee, warned Hungary and Poland to not even think of letting things get that far.
“If judgments of the European Court of Justice are not implemented, then a red line is definitely crossed here,” said Krichbaum. “That is what makes us in the European Union; that law and justice are respected, and justice is spoken by the Court of Justice.”