03 Juni 2022

Millstones

Hooray! „Leyen: Poland commits to the rule of law“. These are the news that the Frankfurter Allgemeine Zeitung has brought to its readers today as they enjoy their breakfast and prepare for the Pentecost bank holiday. Magnificent news indeed: Ursula von der Leyen, the EU Commission President, has travelled to Warsaw and received a „clear commitment to the independence of the judiciary“ from Poland’s government in return for the release of the COVID recovery plan for Poland. 36 billion euros can now be dished out to the Poles, but not just like that, but conditionally: „milestones“ must be reached, three of them of a rule-of-law nature. The disciplinary regime, which the PiS government had implemented to bring the Polish judiciary into line and to discourage them from, among other things, submitting cases to the European Court of Justice in Luxembourg, must be dismantled and the disciplined judges rehabilitated. That is the condition. Milestone first. Money after.

Milestones, then.

Great word, isn’t it? It makes you think of start-ups, venture capitalists, Silicon Valley, daring entrepreneurs and investors who are setting big goals for the future and collecting correspondingly large piles of capital to realise them. The visionary entrepreneurs promise a miraculous future, and the loaded investors are lining up to fund it and secure their share in the profit. But the thing about the future is that you never know whether it will turn out as expected. Which is why the entrepreneur doesn’t get the required sum all at once, but in stages: The path to the big goal is split up into distinct steps. Only after one is completed successfully, the funds for the next will be disbursed. That keeps the risk low and the return the same, and everyone is happy.

Restoring the rule of law in Poland, however, is not some grand, ambitious promise for the future that requires investments now that will pay off later if everything goes according to plan. It’s not about the future at all. It’s about the past: Poland has done things that are incompatible with its obligations under the EU Treaty. This has been established by the competent court in a legally binding manner. What Poland has to do in terms of the rule of law is not a bet on the future, but to settle a debt from the past. Europe is not an investor here, but a creditor.

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This is not just a game of words. The EU has indeed moved far away from the post-war French-German project of administering Europe through the perils of the ages by means of a meritocratic elite of lawyers and bureaucrats that transcends all political differences. The community of law, so dear to us Germans, has long been in shatters anyway: The Commission, instead of watching over the observance of European law, is pursuing its own political goals and wielding power to achieve them, cloaked in the garb of conditionality, and not just since this week. What is new, however, is the fact that the Commission is now even internally splitting into majorities and minorities. Von der Leyen has met with considerable internal resistance, and two particularly heavy hitters, Frans Timmermans and Margrethe Vestager, have reportedly been outvoted within the College and have made their discontent public in no uncertain terms, along with three more Commissioners, including the ones in charge of the rule-of-law portfolio. A downright intra-Berlaymont opposition, one might say.

So this is the constitutional shape in which the European Union is setting out to sail into the hurricane that lies ahead. Commissioners, who by institutional design do not represent electoral or other particular interests, are suddenly making majoritarian decisions as if they were some sort of a Westminster parliament. The Council, in turn, allows itself to be blackmailed by Putin’s partner in crime Viktor Orbán for the sake of unanimity, and not just once, but the next day again, without any reason or legitimate political interest, simply to demonstrate that he can. If the EU had let Nigel Farage write the script for this week, the outcome could hardly have been much worse.

A milestone indeed.

The week on Verfassungsblog

… is summarized by PAULINE SPATZ:

How disastrous the deal between von der Leyen and Poland is can only be understood when one analyses the planned legislation with which the Polish government has allegedly promised to make the rule of law problem go away.  JAKUB JARACZEWSKI has done this for us and shows that the Commission has been taken in by a feint: Nothing will go away unless the Polish government wants it to. FRANZ C. MAYER looks at the situation from the perspective of European law and the toolbox the EU has developed to protect its constitution against member states sliding into authoritarianism, and sees the deal as a capitulation by the Commission and a defeat in the fight for the primacy of law over power.

On 5 April 2022, just two days after the Hungarian national elections, the European Commission formally announced that it would apply the conditionality mechanism enshrined in Regulation 2020/2092 in relation to Hungary. In the past the Commission has frequently addressed issues related to “systemic irregularities, deficiencies and weaknesses in public procurement procedures”. In Hungary, however, it has not probed the enforcement of competition (cartel) law in public tender procedures. According to KATI CSERES & MICHAEL BORGERS, the Commission should seize the opportunity to act in this area.

The sanctions against Russia adopted by the EU have revealed significant deficits in their implementation in Germany. The First Law on More Effective Sanctions Enforcement of May 23, 2022, is intended to help against the grossest deficits. BENJAMIN VOGEL sees the law as the beginning of a far-reaching change in German security law. While he welcomes the thrust of the Sanctions Enforcement Act in principle, he criticizes that the law lacks a clear strategic objective and a legally coherent regulatory concept.

Today, the Bundestag voted on the constitutional and legal amendments for the Special Fund for the Armed Forces. JOHANNES HELLERMANN analyses the compromise between the traffic light coalition and the CDU/CSU against the background of the debt brake in the Basic Law.

On May 25, 2022, the 2nd Military Service Senate of the German Federal Administrative Court ruled on the case of the Tinder profile of battalion commander Anastasia Biefang that Bundeswehr soldiers with special representative functions must exercise restraint in online dating. RONJA HESS criticizes this decision – not only because it restricts the right to sexual self-determination using heteronormative moral concepts, but also because a consideration of the case through the lens anti-discrimination law has been omitted.

On May 13, the Federal Office for the Protection of the Constitution published the situation report „Right-wing extremists, ‚Reichsbürger‘ and Alef-Governors in Security Agencies“. As measures to combat extremism, especially in the security agencies, the situation report lists various instruments for prevention, detection and reaction. ANDREAS NITSCHKE takes this as an opportunity to discuss the existence and scope of a duty to report in security agencies under employment law.

In France, the Conseil Constitutionel has declared a restrictive reform of the right of associations to sue in a planning law case to be constitutional – a case which, according to THOMAS PERROUD and JÉRÔME GRAEFE, exemplifies everything that goes wrong in terms of conflicts of interest at the French Constitutional Council.

Claiming the need to „protect the Belfast/Good Friday Agreement in all its dimensions,“ British Foreign Secretary, Liz Truss, announced to the House of Commons that the Government would be introducing legislative proposals to supersede the Northern Ireland Protocol. In legal terms, this would constitute a breach of the Withdrawal Agreement between the EU and Great Britain. DAGMAR SCHIEK explores whether the Good Friday Agreement actually excludes divergence between Northern Ireland and Great Britain, or even calls for protection of trade from Great Britain to Northern Ireland. OLIVER GARNER explains why Great Britain should invoke the specific mechanism for emergency situations, Art. 16 of the Northern Ireland Protocol – and why the EU should convince the UK to do just that.

In November 2015, Saúl Luciano Lliuya, a Peruvian farmer, filed declaratory and damage claims against the energy company RWE before the Essen Regional Court. The case is now before the Higher Regional Court of Hamm as the court of appeal. At the end of May 2022, a nine-member group of judges from the OLG Hamm and court-appointed experts traveled to Peru to assess with their own eyes whether the house of Saúl Luciano Lliuya is threatened by erupting floods from Lake Palcacocha. SILVIA STEININGER & JUAN CAMILO HERRERA believe that this form of „strategic visitation,“ similar to strategic litigation, may not lead to a legal breakthrough, but nevertheless has important symbolic and political significance.

Our blog symposium on the Auftrag of the Bundesbeauftragte enters its second week with an analysis of the special governmental role of the Federal Commissioner for Culture and the Media by MAREN LUY and a contribution by TOBIAS MAST on the information work of the Federal Commissioner.

That’s all for this dreadful week. I wish I could be more optimistic. And I didn’t even mention what is going on beyond the Atlantic right now.

Anyway, let’s not let that grind us down. Thanks for your attention, stay tuned and in as good spirits as you manage and please don’t forget to support our work on Steady!

All best,

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: Millstones, VerfBlog, 2022/6/03, https://verfassungsblog.de/millstones/, DOI: 10.17176/20220604-062241-0.

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