26 July 2022
Beyond Constitutional Doctrine?
In a recent post on Verfassungsblog, Michał Stambulski and Karol Muszyński make a number of wide-ranging statements and stinging criticisms of what they believe to be the shortcomings of “doctrinal constitutionalism”, “legal constitutionalism” and “doctrinal legal constitutionalism.” What the authors fail to do at any point, however, is define what they mean by these terms. Furthermore, their attack on doctrinal constitutionalism - which includes ad hominem attacks while ironically calling for a more serious engagement and less ‘emotional’ or ‘easy moral evaluation’ - fails to offer any alternative solutions to a rule of law crisis that the authors themselves readily acknowledge to be a problem. Aside from a plea to pay closer attention to economic, social and political context, it is by no means clear what they would put in place of the doctrinal/legal constitutionalism that they appear to be so passionately opposed to. Continue reading >>
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12 July 2022
Hungary, Poland and the “Community of Fate”
In February 2022, the ECJ delivered a ruling in cases brought by Hungary and Poland against the European Parliament and Council. Not only did the ruling uphold the regime of conditionality for the protection of the EU budget; it also entered into the domain of European constitutional identity. Instead of undermining the European commitment to the rule of law, Poland and Hungary may have inadvertently consolidated the place of rule of law in the heart of EU identity. Continue reading >>
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02 June 2022
Competition and Conditionality
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. The Commission should seize the opportunity to act in this area. Continue reading >>08 April 2022
Hungary’s Lesson for Europe
There seems to be a disturbing discordance in the European Commission’s response to the Hungarian elections. On the one hand, the Commission triggers the rule of law mechanism. On the other, it refuses to comment on the fairness of the Hungarian elections. This contradicts the fact that, just like the rule of law, democracy is also part of Europe’s constitutional identity. But what does democracy require from Member States? Hungary’s elections make clear that the value of democracy, as given expression in Article 10 TEU, should be justiciable. Continue reading >>
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18 March 2022
How to Set Aside Hungarian Cardinal Laws
The anti-Fidesz coalition could win the next Hungarian elections. That, however, is only one step on a long path back to a full democracy. Fidesz has skilfully entrenched its power, personnel, and policies. How could a new majority overcome this, align the Hungarian legal order with European standards, and allow for democratic governability? Continue reading >>
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16 February 2022
Mutual (Dis)trust
Last week, the General Court of the European Union, in its judgment T-791/19 Sped-Pro, recognized for the first time the impact that systematic rule of law deficiencies have on national competition authorities. The judgement is seminal, in that it openly questions the ability of national authorities impacted by rule of law backsliding to effectively enforce EU law. The judgement also goes to the heart of explaining the pivotal constitutional role played by competition law within the EU legal order. Continue reading >>
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16 December 2021
Governance or Revolution?
The call from Andrew Arato and Andras Sajó starts an important and timely debate. It is indeed a thorny question in which cases a formal breach of constitutional norms is the only way to restore constitutionalism. I make three claims: First, while the potential opposition government’s legislative power will indeed be constrained, it will not be entirely powerless. Second, many of these constraints do not stem from constitutional provisions per se, but from informal practices within constitutional organs, and thus cannot be addressed by only formal constitutional changes, revolutionary or otherwise. Third, in the present situation a calculated formal breach of the constitution will most likely lead to civilian strife, political paralysis and radicalization. It will also have the potential to destabilize the European Union. Continue reading >>
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13 December 2021
Restoring Constitutionalism in Hungary
Even if the opposition will win the 2022 election in Hungary, it is very unlikely that the new governing parties will reach the two-third majority which according to the current rules is necessary to enact a brand new constitution or even to amend Fidesz’s ‘illiberal’ constitution. Yet, amending Hungary's Fundamental Law by a simple majority would be an unacceptable but also unnecessary break of legality. But it should also be avoided that a new democratic government would have to govern in the long run within the framework of the present ‘illiberal’ Fundamental Law. Continue reading >>
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11 December 2021
How to Return from a Hybrid Regime to Constitutionalism in Hungary
Revolutionary proponents of instant radical solutions are offering Jacobin moralist arguments about the evilness of the old legal system and enthusiastic political slogans about a bright future under the new Constitution, but they are staying silent about the most likely outcome of their plans: massive armed violence. Continue reading >>
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10 December 2021
Toward Restorative Constitutionalism?
How does one restore a democratic constitutional order that has been eroded through a process of “abusive” constitutional change? The same tools used to achieve abusive change can be used to reverse it. For example, just as formal constitutional amendment is one important way in which abusive constitutional projects are carried out, it is also an important pathway through which abusive change can be reversed. Continue reading >>
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